“The Social Security Act instructs that the ALJ—not a physician—ultimately determines a claimant’s RFC.”
How later courts described this case
- “The Social Security Act instructs that the ALJ—not a physician—ultimately determines a claimant’s RFC.”
- “[A] decision by another government agency as to an individual’s disability is not binding upon the Social Security Administration.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RICHARD S.1, Case No. 2:22-cv-2176
Plaintiff, Sargus, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF REPORT AND
SOCIAL SECURITY, RECOMMENDATION
Defendant.
Plaintiff Richard S. brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the final decision of the Commissioner of Social Security (“Commissioner”) finding his
disability ceased on December 21, 2016, and he no longer qualified for disability insurance
benefits (“DIB”). This matter is before the Court on plaintiff’s Statement of Errors (Doc. 11),
the Commissioner’s response in opposition (Doc. 12), and plaintiff’s reply memorandum (Doc.
13).
I. Procedural Background
Plaintiff filed his application for DIB in October 2011, alleging disability since May 15,
2011, due to asthma, bipolar disorder, and seizures. (Tr. 242). Plaintiff’s application was
granted with an onset disability date of May 15, 2011. (Tr. 72-83, 109-15). The Commissioner
conducted a continuing disability review and determined that plaintiff’s disability ceased on
December 21, 2016. (Tr. 84-104). This determination was upheld upon reconsideration by a
state agency Disability Hearing Officer. (Tr. 147-56). Plaintiff, through counsel, requested and
was granted a de novo hearing before administrative law judge (“ALJ”) Gregory G. Kenyon on
1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,
judgment or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only by
their first names and last initials.
January 31, 2019. Plaintiff and a vocational expert (“VE”) appeared and testified at the ALJ
hearing. On April 4, 2019, the ALJ issued a decision finding plaintiff’s disability ended as of
December 21, 2016, and that he had not become disabled again since that date. (Tr. 12-36).
Plaintiff’s request for review by the Appeals Council was denied on April 23, 2020, making the
decision of the ALJ the final administrative decision of the Commissioner.
Plaintiff filed an appeal with this Court seeking judicial review of the Commissioner’s
decision. See Richard S. v. Comm’s of Soc. Sec., No. 2:20-cv-3195 (S.D. Ohio 2020). Upon
Joint Stipulation for Remand, the Court remanded the matter to the Commissioner for further
administrative proceedings. (Tr. 2113-18). Following remand, a second ALJ hearing was held
on January 25, 2022, at which plaintiff, represented by counsel, appeared and testified. (Tr.
2049-80). The ALJ issued an unfavorable decision on February 25, 2022, finding that plaintiff’s
disability ended as of December 21, 2016, and that he had not become disabled again since that
date. (Tr. 2014-48). Plaintiff did not request review by the Appeals Council opting to directly
file suit with this Court. This matter is properly before this Court for review.
II. Applicable Law
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, __
U.S. __, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S.
197, 229 (1938)). Substantial evidence consists of “more than a scintilla of evidence but less
than a preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
In deciding whether the Commissioner’s findings are supported by substantial evidence, the
Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
When, as here, a recipient of disability benefits challenges the cessation of benefits, the
central issue is whether the recipient’s medical impairments have improved to the point where
he is able to perform substantial gainful activity. 42 U.S.C. § 423(f)(1). Whether an individual’s
entitlement to benefits continues depends on whether “there has been any medical improvement
in [the individual’s] impairment(s) and, if so, whether this medical improvement is related to [the
individual’s] ability to work.” 20 C.F.R. § 404.1594(a).
The cessation evaluation process is a two-part process. See Kennedy v. Astrue, 247 F.
App’x 761, 764-65 (6th Cir. 2007). The first part of the process focuses on medical
improvement. Id. at 764. “Medical improvement is any decrease in the medical severity of [the
individual’s] impairment(s) which was present at the time of the most recent favorable medical
decision that [the individual was] disabled or continued to be disabled. A determination that
there has been a decrease in medical severity must be based on improvement in the symptoms,
signs, and/or laboratory findings associated with [the individual’s] impairment(s).” 20 C.F.R. §
404.1594(b)(1). The date of the most recent ALJ hearing, not the cessation of benefits date, is
the relevant point of comparison for determining medical improvement subsequent to the initial
award. Difford v. Secretary of Health & Human Services, 910 F.2d 1316, 1320 (6th Cir. 1990).
That is, the ALJ must consider the plaintiff’s condition at the time of the ALJ hearing and if the
evidence shows he was disabled as of that date, his benefits should continue even if he was not
disabled as of the cessation date. McNabb v. Barnhart, 340 F.3d 943, 944 (9th Cir. 2003) (citing
Difford, 910 F.2d at 1319-20).
The second part of the cessation analysis focuses on whether the individual has the ability
to engage in substantial gainful activity. Kennedy, 247 F. App’x at 765. The implementing
regulations for this part of the evaluation incorporate many of the standards set forth in the
regulations that govern initial disability determinations. Id. (citing former2 20 C.F.R. §
404.1594(b)(5) and (f)(7)). The difference is that “the ultimate burden of proof lies with the
Commissioner in termination proceedings.” Id. (citing former 20 C.F.R. § 404.1594(b)(5) and
(f)(7); Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991)). “Even where medical
improvement related to [the individual’s] ability to work has occurred or an exception applies, in
most cases (see paragraph (e) of this section for exceptions), we must also show that [the
individual is] currently able to engage in substantial gainful activity before we can find that [the
individual is] no longer disabled.” 20 C.F.R. § 404.1594(a); see also 20 C.F.R. §
404.1594(b)(5): “In most instances, we must show that [the individual is] able to engage in
substantial gainful activity before [the individual’s] benefits are stopped.”
2 20 C.F.R. § 404.1594 was amended on March 27, 2017, to eliminate references to the consideration that the
Commissioner gives to an opinion of a claimant’s “treating physician.” See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819, at *5872-73 (Jan. 18, 2017).
In deciding whether a recipient’s entitlement to disability benefits has ended, the
Commissioner uses the eight-step sequential evaluation process outlined in 20 C.F.R. §
404.1594(f)(1)-(8). The steps are:
(1) Are you engaging in substantial gainful activity? If you are . . . we will find
disability to have ended. . . .
(2) If you are not, do you have an impairment or combination of impairments which
meets or equals the severity of an impairment listed in appendix 1 of this subpart?
If you do, your disability will be found to continue.
(3) If you do not, has there been medical improvement as defined in paragraph
(b)(1) of this section? If there has been medical improvement as shown by a
decrease in medical severity, see step (4). If there has been no decrease in medical
severity, there has been no medical improvement. (See step (5).)
(4) If there has been medical improvement, we must determine whether it is related
to your ability to do work in accordance with paragraphs (b)(1) through (4) of this
section; i.e., whether or not there has been an increase in the residual functional
capacity based on the impairment(s) that was present at the time of the most recent
favorable medical determination. If medical improvement is not related to your
ability to do work, see step (5). If medical improvement is related to your ability
to do work, see step (6).
(5) If we found at step (3) that there has been no medical improvement or if we
found at step (4) that the medical improvement is not related to your ability to work,
we consider whether any of the exceptions in paragraphs (d) and (e) of this section
apply. If none of them apply, your disability will be found to continue. If one of
the first group of exceptions to medical improvement applies, see step (6). If an
exception from the second group of exceptions to medical improvement applies,
your disability will be found to have ended. The second group of exceptions to
medical improvement may be considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do work or if
one of the first group of exceptions to medical improvement applies, we will
determine whether all your current impairments in combination are severe (see §
404.1521). This determination will consider all your current impairments and the
impact of the combination of those impairments on your ability to function. If the
residual functional capacity assessment in step (4) above shows significant
limitation of your ability to do basic work activities, see step (7). When the
evidence shows that all your current impairments in combination do not
significantly limit your physical or mental abilities to do basic work activities, these
impairments will not be considered severe in nature. If so, you will no longer be
considered to be disabled.
(7) If your impairment(s) is severe, we will assess your current ability to do
substantial gainful activity in accordance with § 404.1560. That is, we will assess
your residual functional capacity based on all your current impairments and
consider whether you can still do work you have done in the past. If you can do
such work, disability will be found to have ended.
(8) If you are not able to do work you have done in the past, we will consider
whether you can do other work given the residual functional capacity assessment
made under paragraph (f)(7) of this section and your age, education, and past work
experience (see paragraph (f)(9) of this section for an exception to this rule). If you
can, we will find that your disability has ended. If you cannot, we will find that
your disability continues.
20 C.F.R. § 404.1594(f).
There is no presumption of continuing disability. Kennedy, 247 F. App’x at 764 (citing
Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286-87 n.1 (6th Cir. 1994)).
Instead, the Commissioner applies the above procedures to determine whether the claimant’s
disability has ended and if he is now able to work. Id.
III. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The most recent favorable medical decision finding that the [plaintiff] was
disabled is the decision dated July 11, 2013. This is known as the “comparison
point decision” or CPD.
2. At the time of the CPD, the [plaintiff] had the following medically determinable
impairments: seizure disorder and bipolar disorder. These impairments were found
to result in a residual functional capacity for work at any defined level of exertion
that would involve no work at unprotected heights and no exposure to moving
machinery or other dangerous instrumentalities. It was determined that because of
the bipolar disorder, the [plaintiff] would be “unable to reliably complete a
workweek on a regular and continuing basis.”
3. Through the date of this decision, the [plaintiff] has not engaged in substantial
gainful activity (20 CFR 404.1594(f)(1)).
4. The medical evidence establishes that, since December 21, 2016, the [plaintiff]
has had the following medically determinable impairments: seizure disorder, mild
asthma, bipolar disorder, personality disorder, [and] cannabis use disorder. These
are the [plaintiff]’s current impairments.
5. Since December 21, 2016, the [plaintiff] has not had an impairment or
combination of impairments which met or medically equaled the severity of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525
and 404.1526).
6. Medical improvement occurred on December 21, 2016 (20 CFR 404.1594(b)(1)).
7. Since December 21, 2016, the impairments present at the time of the CPD
decreased in medical severity to the point where the [plaintiff] has regained the
functional capacity to perform work as described at Finding No. 10.
8. The [plaintiff]’s medical improvement is related to the ability to work because it
resulted in an increase in the [plaintiff]’s residual functional capacity (20 CFR
404.1594(c)(3)(ii)).
9. Since December 21, 2016, the [plaintiff] has continued to have a severe
impairment or combination of impairments (20 CFR 404.1594(f)(6)).
10. Based on the impairments present since December 21, 2016, the [plaintiff] has
had the residual functional capacity to perform work at any defined level of exertion
ranging from sedentary to very heavy as defined at 20 CFR 404.1567 subject to the
following limitations: (1) no climbing of ladders, ropes, or scaffolds; (2) no work
around hazards such as unprotected heights or dangerous machinery; (3) no
operation of automotive equipment in the course of employment; (4) no
concentrated exposure to temperature extremes or respiratory irritants; (5) limited
to performing simple, routine, repetitive tasks; (6) no more than occasional,
superficial contact with co-workers and supervisors (with ‘superficial’ contact
defined as able to receive simple instructions, ask simple questions, and receive
performance appraisals but as unable to engage in more complex social interactions
such as persuading other people and resolving interpersonal conflicts); (7) no
contact with the general public; (8) no close or ‘over-the-shoulder’ supervision; (9)
no duties involving tandem tasks or teamwork; (10) no fast-paced production work;
(11) no jobs involving strict production quotas; (12) limited to performing jobs that
involve very little, if any, change in job duties or work routine from one day to the
next.
11. Since December 21, 2016, the [plaintiff] has been unable to perform past
relevant work (20 CFR 404.1565).3
3 Plaintiff’s past relevant work was a truck driver, a semi-skilled, medium exertion job, and a truck
mechanic, a skilled, medium exertion job. (Tr. 2033, 2073).
12. The [plaintiff] was born [in] . . . 1978. He is currently 43 years old. The
[plaintiff] is classified as a “younger individual” for Social Security purposes (20
CFR 404.1563).
13. The [plaintiff] has a high-school education and about one year of college credits
(20 CFR 404.1564).
14. The [plaintiff] does not have “transferable” work skills within the meaning of
the Social Security Act (20 CFR 404.1568).
15. Since December 21, 2016, considering the [plaintiff]’s age, education, work
experience, and residual functional capacity based on the impairments present since
December 21, 2016, the [plaintiff] has been able to perform a significant number
of jobs in the national economy (20 CFR 404.1560(c) and 404.1566).4
16. The [plaintiff]’s disability ended on December 21, 2016, and the [plaintiff] has
not become disabled again since that date (20 CFR 404.1594(f)(8)).
(Tr. 2020-35).
IV. Specific Errors
On appeal, plaintiff alleges that the ALJ erred by 1) failing to properly explain or
demonstrate how plaintiff’s condition improved to the point where plaintiff was no longer
disabled and (2) including an arbitrary definition of “superficial” in the residual functional
capacity finding with no accompanying explanation. (Doc. 11).
1. The ALJ’s finding that plaintiff experienced medical improvement as of
December 21, 2016 is supported by substantial evidence.
In the first assignment of error, plaintiff alleges the ALJ erred by failing to “properly
explain or demonstrate how [plaintiff’s] condition improved to the point where he was no longer
disabled.” (Id. at PAGEID 2906). Plaintiff argues he was “awarded disability benefits by way
of a decision dated July 11, 2013,” and the ALJ erred in finding plaintiff’s “medical conditions
4The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of
representative medium, unskilled occupations such as marker (125,000 jobs in the national economy), laundry aide
(50,000 jobs in the national economy), and routing clerk (100,000 jobs in the national economy). (Tr. 2034, 2074-
75).
improved to a point where he could now sustain gainful activity.” (Id. at PAGEID 2908).
Plaintiff contends the ALJ’s decision in finding medical improvement is not supported by
substantial evidence for three reasons. First, plaintiff argues medical records before and after
December 21, 2016 “document very similar mental health findings.” (Id. at PAGEID 2908).
Plaintiff cites treatment records from Dr. Matthew Stevenson, plaintiff’s psychiatrist at the
Department of Veterans Affairs (“VA”), which plaintiff alleges demonstrate “ongoing issues
with mental health such as mood swings, irritability, poor sleep, and aggression.” (Id. at
PAGEID 2909, citing Tr. 959, 975, 2537). Second, plaintiff contends no medical improvement
occurred because Dr. Aracelis Rivera, the state agency psychologist who reviewed plaintiff’s file
on reconsideration, opined that plaintiff “had been found unable to reliably complete a work
week on a regular and continuing basis.” (Id., citing Tr. 692). Third, plaintiff cites a 70%
disability rating that he received by the VA in September 2012 as “further evidence that the ALJ
has not sufficiently proven that [plaintiff’s] medical condition improved to the extent that he can
now sustain competitive employment.” (Id. at PAGEID 2909-10).
The Commissioner argues the ALJ’s decision is supported by substantial evidence
because the ALJ reasonably articulated the ways in which plaintiff experienced significant
medical improvement. (Doc. 12). The Commissioner contends the ALJ properly cited to VA
treatment records which show plaintiff’s mental impairments and accompanying symptoms
improved since the July 11, 2013 comparison point decision (“CPD”). (Id. at PAGEID 2921-
23). The Commissioner further argues the ALJ’s evaluation of and reliance upon the opinions of
the state agency psychologists substantially support his decision in this case. (Id. at PAGEID
2923-25).
On July 11, 2013, the Social Security Administration found plaintiff disabled. (Tr. 72-
83).5 In that decision, the prior ALJ noted that plaintiff’s impairments resulted in “seizures,
reduced stress tolerance, decreased attention and concentration, and markedly diminished
interpersonal skills.” (Tr. 81). The decision stated that due “to the effects of [plaintiff’s] bipolar
disorder,” plaintiff “would be unable to reliably complete a workweek on a regular and
continuing basis.” (Id.). Further, the prior ALJ found that plaintiff’s mental impairments
resulted in “mild restriction[s] of activities of daily living; marked difficulties in maintaining
social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and
no repeated episodes of decompensation, each of extended duration.” (Tr. 80).
Following the continuing disability review process and first court remand, ALJ Kenyon
issued an unfavorable decision on February 25, 2022. The ALJ found that plaintiff’s disability
ended as of December 21, 2016, and that plaintiff had not become disabled again since that date.
(Tr. 2014-48). In this decision, which plaintiff alleges is not supported by substantial evidence,
the ALJ explained:
The medical evidence supports a finding that, by December 21, 2016, there had
been a decrease in medical severity of the impairments present at the time of the
CPD. Most notably, as discussed at Finding No. 4, the evidence supports a finding
that the claimant no longer experiences “marked” limitation in his capacity to
interact with others. Since December 21, 2016, the claimant’s capacity to interact
with others has been no worse than “moderately” limited. . . .
(Tr. 2027). In finding medical improvement, the ALJ evaluated the opinions of state agency
psychologists Drs. Bruce Goldsmith and Aracelis Rivera. (Tr. 2024-25). The ALJ noted that
Drs. Goldsmith and Rivera were the “only medical sources of record who presented opinion
5 The July 11, 2013 decision is the CPD because it is the most recent favorable medical decision finding that
plaintiff was disabled. (See Tr. 2017, 2020).
evidence as to the claimant’s mental functioning[.]” (Tr. 2024). The ALJ gave the opinions of
Drs. Goldsmith and Rivera “substantial weight.” The ALJ reasoned as follows:
In the opinion of Dr. Goldsmith and Dr. Rivera, the claimant continues to have a
“severe” mental impairment. Dr. Goldsmith assessed the claimant’s condition in
2016 under the prior criteria and concluded that the claimant experiences “mild”
limitation in his ability to do activities of daily living; “moderate” limitation in his
ability to maintain social functioning; and “moderate” limitation in his ability to
maintain concentration, persistence, and pace. The claimant did not experience
repeated episodes of decompensation each of extended duration in the relevant past
according to Dr. Goldsmith. Dr. Rivera (using the new assessment criteria)
concluded in 2017 that the claimant experiences no limitation in his ability to
understand, remember, or apply information. He experiences “moderate”
limitation in his ability to interact with others. The claimant experiences
“moderate” limitation in his ability to concentrate, persist, or maintain pace. He
experiences “moderate” limitation in his ability to adapt and manage oneself.
Consequently, both Dr. Goldsmith and Dr. Rivera presented assessments indicating
significant improvement in the claimant’s mental functioning capabilities since the
CPD. This is most evident in the difference shown in the claimant’s capacity to
interact with others (i.e., improved from “markedly” limited at the time of the CPD
to “moderately” limited by 2016). Dr. Rivera concluded that the claimant is able
to think, act, and complete multiple-step tasks (Exhibit B9F at 4). According to Dr.
Goldsmith, the claimant is capable of following and completing simple task
instructions. He can do simple tasks that are not fast paced and which do not have
unusual production demands. He is limited to performing tasks that would involve
only occasional and superficial interpersonal contact. He is limited to performing
routine tasks with infrequent changes (Exhibit B2A at 18-20).
* * *
It is found that, by December 21, 2016, the claimant’s mental capabilities had
improved to the extent that he now experiences “mild” limitation in his ability to
understand, remember, or apply information; “moderate” limitation in his ability to
interact with others; “moderate” limitation in his ability to concentrate, persist, or
maintain pace; and “mild” limitation in his ability to adapt or manage oneself.
(Tr. 2024-25; see also Tr. 2027).
The ALJ examined the medical evidence of record and determined there had been
substantial medical improvement with regard to plaintiff’s level of functioning since 2013, the
CPD. The ALJ acknowledged plaintiff “continued to exhibit chronic irritability and difficulty
getting along with other persons (Exhibits B4F, B5F, B8F, B13F, B15F, and B22F).” (Tr. 2023).
In examining the medical evidence of record and finding medical improvement, the ALJ cited
VA records showing a stable mood with no indicia of psychosis such as hallucinations,
delusions, or paranoid ideation. The ALJ cited evidence showing that plaintiff’s activities of
daily living were inconsistent with plaintiff’s allegations of pain and resulting limitations. The
ALJ also noted that plaintiff had full contact with reality and was able to control his temper and
conform his conduct to socially acceptable standards. (Tr. 2028, citing Tr. 675, 790, 959, 1648,
2832, 2845; see also Tr. 2024-25).
Plaintiff argues the ALJ’s medical improvement finding is not supported by substantial
evidence because the record before and after December 21, 2016 document very similar mental
health findings as reflected in the VA medical records. Specifically, plaintiff contends treatment
records from Dr. Stevenson reflect incidents with the police, family members, and other
individuals in plaintiff’s neighborhood; symptoms of mood swings, irritability, poor sleep, and
aggression; and signs including dysphoric mood and irritable affect, all of which demonstrate
ongoing issues with mental health. (Doc. 11 at PAGEID 2909, citing Tr. 675, 678, 802-03, 812,
819, 959, 975, 2537).6
Plaintiff first cites a January 23, 2017 treatment note from Dr. Stevenson as evidence that
plaintiff had “a dysphoric mood and irritable affect.” (Id., citing Tr. 678). Plaintiff further
contends that on March 23, 2017, Dr. Stevenson noted that plaintiff “was suffering from mood
swings.” (Id., citing Tr. 675). The ALJ, however, expressly cited the exhibit containing these
treatment records, among others, in finding plaintiff “continued to exhibit chronic irritability and
difficulty getting along with other persons.” (Tr. 2023, citing Exhibit 8F, which includes Dr.
Stevenson’s treatment notes from January 23 and March 23, 2017). Further, state agency
6 There is no evidence in the record that Dr. Stevenson issued any opinions as to plaintiff’s functional limitations
resulting from his impairments.
psychologist Dr. Rivera, who reviewed plaintiff’s file upon reconsideration on May 9, 2017
expressly considered Dr. Stevenson’s January 23 and March 23, 2017 treatment records in
formulating her opinion on plaintiff’s mental functioning limitations. (Tr. 692). Dr. Rivera
noted that at the CPD, plaintiff was having significant difficulties managing his interactions with
others, including physical fights and domestic violence. (Tr. 693). Dr. Rivera noted that
“currently” plaintiff has not experienced physical altercations and denied domestic violence
issues. (Id.). Based on these and other medical records, Dr. Rivera opined that the severity of
plaintiff’s mental health symptoms had decreased such that plaintiff was now “moderately” as
opposed to “markedly” limited in his ability to interact with others. The ALJ gave Dr. Rivera’s
opinions “substantial weight,” and plaintiff included no specific error relating to the ALJ’s
weighing of the state agency psychologists’ opinions. The ALJ appropriately considered the
records cited by plaintiff when determining whether there was a decrease in medical severity
based on improvement in the symptoms, signs, and/or laboratory findings associated with
plaintiff’s impairments. See 20 C.F.R. § 404.1594(b)(1). These records do not undermine the
ALJ’s finding of medical improvement.
Plaintiff also cites to Dr. Stevenson’s records from June, August, and November 2017,
which he alleges document “incidents with the police, his wife’s family, and other individuals in
[plaintiff’s] neighborhood” (Doc. 11 at PAGEID 2909, citing Tr. 812, 819) and note “problems
with mood swings, irritability, poor sleep, and aggression.” (Id., citing Tr. 802-03). Plaintiff
cites a June 2017 record in which he reported “he has been having problems with a neighbor. . .
.” (Tr. 819). Plaintiff also reported, however, that “the police have now talked to the neighbor
and told the neighbor to leave him alone so he feels better about the situation.” (Id.). Two
months later plaintiff reported “the situation with his neighbor has worked out and they now
have a ‘truce.’” (Tr. 813). Plaintiff also reported during that same visit that his “medications
work well when he takes them.” (Id.).
The August 31, 2017 record cited by plaintiff involves his call to a crisis hotline after an
argument with his in-laws, during which the police were called. Plaintiff initially eluded police
but subsequently reunited with his family. A sheriff’s deputy responded to the home and
determined there was no threat and, thus, no action was taken. (Tr. 812). The following day,
plaintiff reported he was doing better and was safe. (Tr. 813). He sounded “a bit anxious” but
“was pleasant and polite.” (Id.).
The November 21, 2017 record plaintiff cites is a periodic updated “Treatment Plan” in
which the “Active Problem” identified was “[BIPOLAR]: My mood has been unstable in the
following ways: mood swings, irritable, poor sleep, aggression.” (Tr. 803). In progress notes
from plaintiff’s actual visit that day, however, plaintiff reported he was feeling better since he
called the crisis hotline in August; he has gotten “distance” from people he was having conflicts
with previously; and he was intoxicated the day he called the crisis hotline. (Tr. 1050). He also
reported “only partial compliance with lithium.” (Tr. 1051). On objective examination, Dr.
Stevenson reported plaintiff’s mood was euthymic, his affect was anxious but not irritable or
expansive, he was goal directed without paranoia or delusions, and he denied hallucinations or
suicidal ideation. (Id.). Plaintiff fails to explain how these records from 2017 undermine the
ALJ’s finding of medical improvement in this case.
Plaintiff also alleges that “[e]ven into 2018 and through 2021, Dr. Stevenson’s notes
documented ongoing issues with mental health such as mood swings irritability, poor sleep, and
aggression.” (Doc. 11 at PAGEID 2909, citing Tr. 959, 975, 2537). The records plaintiff cites,
however, do not undercut the ALJ’s finding of medical improvement. Rather, they appear to
support the ALJ’s finding that plaintiff’s mood was stable with the use of prescribed
psychotropic medication, and he was able to maintain control and act appropriately while
maintaining a therapeutic level of prescribed medication. (Tr. 2024). Tr. 975 is a treatment note
from the VA reflecting that plaintiff “lost it” during a pulmonary function study, becoming very
agitated and violent and verbally threatening suicide. (Tr. 975). When he spoke with Dr.
Stevenson ten minutes later, plaintiff reported he was able to compose himself and was feeling
calm. Plaintiff denied that he was feeling suicidal when he made that statement or currently, and
he reported stress with taking a lot of tests and with Social Security. Dr. Stevenson discussed
medication changes, which plaintiff declined. Plaintiff indicated he missed a dose of his
medication that morning and the previous evening, and Dr. Stevenson encouraged compliance
with medication. (Id.).
Tr. 959 is a September 11, 2018 treatment note from Dr. Stevenson. (Tr. 959). The
treatment note reflects plaintiff’s “frustration with social security and their interpretation of his
activity level.” (Id.). Plaintiff “report[ed] stable mood other than feeling irritated about the
disability issue.” (Id.). Contrary to plaintiff’s argument in his statement of errors that this
treatment note reflects that he suffered from “poor sleep” (Doc. 11 at PAGEID 2909), the
September 11, 2018 treatment note reflects that plaintiff was “staying up late at night, but
sleeping at least 6-7 hours.” (Tr. 959). Plaintiff further reported that he was “able to stay in
control and act appropriately” while on his medication. (Id.).
Tr. 2537, which plaintiff cites as evidence that no medical improvement occurred, is a
page from an April 29, 2021 Treatment Plan reiterating plaintiff’s “Active Problem” as
“[BIPOLAR]: My mood has been unstable in the following ways: mood swings, irritable, poor
sleep, aggression.” (Tr. 2537). However, in the very next sentence in the comment section,
plaintiff reported he was “progressing, [] had stable mood, and [was] med[ication] compliant[.]”
(Id.). Plaintiff further reported that he was getting along well with his wife, although they were
separated, and he has another relationship for “companionship” that was going well. He denied
any violent thoughts of behavior; was thinking of volunteering in the local food pantry; was
doing bible study online; and reported his mood was stable. (Tr. 2538). On mental status
examination, Dr. Stevenson reported that plaintiff was oriented to person, place, and time; he had
euthymic mood, coherent and appropriate speech, and appropriate thought content and process;
and he was goal directed. (Tr. 2538-39).
Plaintiff fails to explain how the above cited records undercut the ALJ’s conclusion on
medical improvement. The ALJ acknowledged plaintiff’s “well-documented history of mental
symptoms attributable to bipolar disorder.” (Tr. 2022). However, the ALJ also pointed to
records showing that plaintiff’s mood was stable when he took his medications as prescribed.
(Tr. 2028, citing Tr. 2538, 2541, 2557, 2583, 2819, 2845). The ALJ noted that plaintiff was
briefly hospitalized when his wife left him in 2019, but he was not suicidal and his “mental
health seems improved to an even greater extent since the turmoil of the divorce has subsided.”
(Tr. 2028, citing 2832, 2845). See Tr. 2583 (1/21/20: plaintiff reported his “relationship with his
wife was exacerbating his mood and anxiety symptoms as his stress has decreased greatly since
she is out of his life. He denies any aggressive behavior since he was last seen. He denies
having any thoughts or plans of harming self or others.”); Tr. 2845 (7/28/21: plaintiff reported
“he completed his dissolution with his wife” and “feels they were able to talk and he feels it went
well”; “feels he and his son get along well since he and his wife separated. His step daughter
came up to visit and spent more time with him than her own mother. He feels happy to support
his children. He has had several relationships in interim, but nothing long term. He finds his
mood continues to be stable as long as he takes the medication.”; he denied “reckless,”
aggressive or threating behavior); Tr. 2819-20 (11/21/21: “Pt reports feeling better since he was
last seen. He feels he has been able to get some closure with his ex-wife”; “feels he has learned
to manage his emotions regarding his relationship better than in the past”; “his mood has been
‘pretty good’”; “He has been able to make some friends. He reports medication compliance. He
feels the medication is working well to maintain mood stability”; “He has been sleeping well.”).
The ALJ thoroughly reviewed the medical record, and his finding of medical improvement is
substantially supported by the record evidence. (Tr. 2023, 2024-26, 2027-29, 2031-33).
Second, and as best the Court can discern, plaintiff contends the ALJ’s decision is not
supported by substantial evidence because state agency psychologist Dr. Rivera opined that
plaintiff “had been found unable to reliably complete a work week on [a] regular and continuing
basis.” (Doc. 11 at PAGEID 2909, citing Tr. 692). Dr. Rivera’s statement simply reflects the
finding of the previous ALJ, which Dr. Rivera included as background prior to discussing her
medical findings and opinions related to plaintiff’s mental functioning. (Tr. 80, 692). It does not
reflect Dr. Rivera’s opinion on plaintiff’s then-current functioning. (Tr. 690-692, mental residual
functional capacity assessment). To the extent plaintiff argues that the ALJ’s decision is not
supported by substantial evidence based upon this statement, plaintiff’s argument is belied by the
record.
Third, plaintiff points to a September 2012 finding by the VA that plaintiff was 70%
disabled due to his bipolar disorder as further evidence that medical improvement did not occur.
(Doc. 11 at PAGEID 2909). Plaintiff argues the VA disability “rating has not changed” and the
“VA never found that [plaintiff’s] bipolar improved, or found that [plaintiff] could go back to
substantial gainful activity.” (Id. at PAGEID 2909-10). While plaintiff acknowledges “the VA
decision is not binding,” he argues that “the fact that the VA has not deemed [his] condition to
have improved is further evidence that the ALJ has not sufficiently proven that [his] medical
condition improved to the extent that he can now sustain competitive employment.” (Id. at
PAGEID 2910).
For claims filed before March 27, 2017, the ALJ is required to consider the VA disability
determination and explain how he analyzed that decision.7 However, “a determination made by
another agency that you are disabled or blind is not binding” on the Commissioner. 20 C.F.R. §
404.1504 (effective until March 26, 2017). See Turcus v. Soc. Sec. Admin., 110 F. App’x 630,
632 (6th Cir. 2004) (“[A] decision by another government agency as to an individual’s disability
is not binding upon the Social Security Administration.”). Nevertheless, as the ALJ must
consider all the evidence in the record in making a disability determination, he must consider
disability decisions made by other governmental agencies like the VA and explain the
consideration given to such evidence. See Soc. Sec. Ruling 06-3p, 2006 WL 2329939 (evidence
of a disability decision by another governmental or nongovernmental agency cannot be ignored
and must be considered). Likewise, the Sixth Circuit has held that an ALJ must consider a
disability decision of the Veterans Administration and articulate reasons for the amount of
weight assigned to that decision. Rothgeb v. Astrue, 626 F. Supp. 2d 797, 809 (S.D. Ohio 2009)
(citing Harris v. Heckler, 756 F.2d 431, 434 (6th Cir. 1985)). See also Orr v. Comm’r of Soc.
Sec., No. 3:13-cv-346, 2014 WL 3666791, at *6 (S.D. Ohio July 22, 2014).
The ALJ addressed the VA disability rating as follows:
As noted in the prior decision, Veterans Administration records document a 70-
percent disability rating due to bipolar disorder (Exhibits 8D at 3 [prior file]; B13F
7 For claims filed after March 27, 2017, however, the applicable regulations expressly “state that the ALJ need not
provide an analysis concerning plaintiff’s disability rating from the VA.” Raymond R. v. Comm’r of Soc. Sec., No.
1:21-cv-539, 2022 WL 1590817, at *4 (S.D. Ohio May 19, 2022), report and recommendation adopted, 2022 WL
2965289 (S.D. Ohio July 27, 2022) (citing 20 C.F.R. § 404.1504).
at 39; B24F at 164 and 166). The Veterans Administration assigned the claimant a
100-percent disability rating (Exhibit 8D at 3 [prior file]). The Veterans
Administration determined that the claimant was rendered 100 percent disabled
effective August 30, 2011, because he was “unable to work” due to his service
connected disability (Exhibit B22D at 3). A determination of “individual
unemployability” was made by the Veterans Administration (Exhibit B22D at 12).
* * *
The Veterans Administration (VA) medical evidence detailed above has been given
due consideration in reaching this decision, but it is given no weight. What this
agency meant by “individual unemployability” is not clear nor is such a generic
statement consistent with the specific and precise definition of “disability” for
Social Security purposes. Whether any reduction in an individual’s functional
capability renders the individual “disabled” (i.e., ultimately, whether he is unable
to perform work existing in significant numbers in the national economy) is an issue
to be resolved under Social Security rules and regulations. Hence, the conclusion
of this agency that the claimant was unable to work due to “individual
unemployability” is given no weight. Similarly, the VA findings of a 70-percent
disability rating due to bipolar disorder and a 100-percent disability rating overall
have been given due consideration but, as explained above, those conclusions are
not binding on the Social Security Administration. The VA disability ratings are
given limited (little) weight. A primary reason for this is because the VA disability
ratings appear to be diagnosis driven while the Social Security Administration’s
analysis is more concerned with the functional effect(s) of any documented
impairments.
(Tr. 2022-23).
To the extent plaintiff argues the ALJ erred in giving little weight to the VA’s disability
rating, the Court finds no error. First, the ALJ reasonably discounted the VA’s disability rating
on the basis that the VA’s disability rating differs from a disability determination made by the
Social Security Administration. See Kessans v. Comm’r of Soc. Sec., 768 F. App’x 531, 535 (6th
Cir. 2019) (finding no error in ALJ’s decision to give only “some consideration” to the VA’s
decision where the ALJ “acknowledged the VA’s disability rating but explained that the VA uses
different standards for making disability determinations and that the VA’s records on [the
claimant] contained neither function-by-function analysis nor language describing how [the
claimant’s] PTSD limits her ability to work”); see also Joseph v. Comm’r of Soc. Sec., 741 F.
App’x 306, 310 (6th Cir. 2018) (finding no error where the ALJ discounted the VA’s disability
rating, in part, because of the differences between the VA’s disability system and the Social
Security’s disability system).
Second, the ALJ’s decision to give little weight to the VA’s disability rating is supported
by substantial evidence. Reading the ALJ’s decision as a whole, the ALJ reasonably determined
that the VA treatment records and subsequent medical opinions by the state agency psychologists
show that medical improvement occurred, and the “medical evidence supports a finding that, by
December 21, 2016, there had been a decrease in medical severity of the impairments present at
the time of the CPD.” (Tr. 2027). As noted above, VA treatment records “from September 2018
show that [plaintiff’s] mood was stable with the use of prescribed psychotropic medication. It
was noted that he was able to maintain control and to act appropriately while maintaining a
therapeutic level of prescribed medication.” (Tr. 2024, citing Tr. 959; see also Tr. 2025, 2028).
The ALJ thoroughly examined the medical records from Dr. Stevenson and the VA and
reasonably found that medical improvement occurred. Therefore, the Court finds that the ALJ
properly considered and explained his reasons for giving little weight to the VA’s disability
rating and those reasons are supported by substantial evidence.
Accordingly, the ALJ reasonably determined that plaintiff experienced medical
improvement as of December 21, 2016, and this finding is supported by substantial evidence. 20
C.F.R. § 404.1594(b)(1). The Court therefore recommends that plaintiff’s first assignment of
error be overruled.
2. The ALJ’s residual functional capacity is supported by substantial evidence.
This matter was previously remanded because, among other reasons, the “ALJ omitted
Dr. Goldsmith’s assessed limitation for superficial interpersonal contact from the RFC based on
the weight accorded to the opinion.” (Tr. 2122). In vacating the ALJ’s prior decision, the
Appeals Council stated as follows:
While the ALJ adopted a number of limitations in the RFC assessment related to
the quality and not just the quantity of contact with others, such as limitations on
close supervision, tandem tasks, and teamwork, he did not provide an explanation
for why he deviated from the language used by Dr. Golds[mith] nor how these
restrictions accounted for the opined restriction to superficial contact. This issue is
significant in this case because the cessation of the claimant’s benefits was based
on his improved ability to interact with others. While an ALJ does not have to rely
on opinion evidence to formulate the limitations in the RFC, he or she does have to
provide a narrative discussion with cites to evidence in the record for how the
restrictions were derived pursuant to Social Security Ruling 96-8p. The hearing
decision does not contain such a narrative discussion for the assessed mental
limitations regarding the claimant’s ability to interact with others. Further
consideration of Dr. Golds[mith’s] non-examining opinion is necessary.
(Tr. 2123).
On remand, the ALJ’s RFC included Dr. Goldmith’s finding that plaintiff was limited to
“superficial” contact. The ALJ explained:
The issue raised in the remand order has been rectified. . . . Dr. Goldsmith’s opinion
evidence has been afforded substantial weight (as set forth above). His asserted
limitation for superficial interpersonal contact has been included in the residual
functional capacity found to be applicable since December 21, 2016. . . .
(Tr. 2025). The RFC crafted by the ALJ limited plaintiff to “no more than occasional,
superficial contact with co-workers and supervisors (with ‘superficial’ contact defined as able to
receive simple instructions, ask simple questions, and receive performance appraisals but as
unable to engage in more complex social interactions such as persuading other people and
resolving interpersonal conflicts)” and “no contact with the general public.” (Tr. 2029)
(emphasis added).
In his second assignment of error, plaintiff alleges the RFC finding is not supported by
substantial evidence because the ALJ included an arbitrary definition of the term “superficial.”
(Doc. 11 at PAGEID 2910). Plaintiff argues the ALJ “overstepped by creating some arbitrary
definition of the term ‘superficial’ without providing any sort of explanation as to how he arrived
at that definition.” (Id. at PAGEID 2911). Plaintiff contends that by failing to include an
explanation as to the definition of “superficial,” it is “impossible for a subsequent reviewer to
understand how the ALJ arrived at the conclusions he did.” (Id. at PAGEID 2912).8
The Commissioner disagrees, arguing the ALJ’s RFC was more restrictive than any
medical opinion of record because the ALJ “entirely banned all public contact” and added
“additional social interactions, by limiting Plaintiff to no close or ‘over-the-shoulder’ supervision
and no duties involving tandem tasks or teamwork.” (Id., citing Tr. 2029). The Commissioner
contends plaintiff failed to explain “how he was harmed by the extra social interaction
limitations the ALJ added to the RFC.” (Id. at PAGEID 2928). Moreover, the Commissioner
argues that plaintiff failed to carry his burden that the restrictions in the ALJ’s RFC “were
inconsistent with the term ‘superficial’ or by showing he would be unable to perform the jobs
identified at step five if ‘superficial’ had not been defined this way.” (Id.).
The ALJ alone is responsible for determining a plaintiff’s RFC. See 20 C.F.R. §
404.1546(c). While medical source opinions are considered, the final responsibility for deciding
the RFC is reserved to the Commissioner. See former 20 C.F.R. § 404.1527(d)(2); Coldiron v.
Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The Social Security Act instructs
that the ALJ—not a physician—ultimately determines a claimant’s RFC.”). “Even where an
ALJ provides ‘great weight’ to an opinion, there is no requirement that an ALJ adopt a state
8 Plaintiff argues the term “superficial” has “been defined by the Appeals Council” in a “notice dated July 27,
2022[.]” (Doc. 11 at PAGEID 2912, citing Exhibit A, page 4). Plaintiff, however, fails to attach any exhibits to his
statement of specific errors, and the Court cannot identify in the record where this purported definition of
“superficial” is located. Further, even if the Appeals Council defined the term “superficial” in a “notice dated July
27, 2022,” the ALJ’s decision is dated February 25, 2022, which is over five months prior to any “notice” allegedly
issued by the Appeals Council. Plaintiff fails to explain how the Appeals Council’s definition of the term
“superficial,” which occurred five months after the ALJ’s decision, would have any consequence in this action
currently before the Court.
agency psychologist’s opinions verbatim; nor is the ALJ required to adopt the state agency
psychologist’s limitations wholesale.” Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275
(6th Cir. 2015). “However, if the ALJ accepts a medical opinion but does not include a
restriction recommended by that expert in the RFC, the ALJ must explain why he did not do so.”
Hankinson v. Comm’r of Soc. Sec., No. 2:18-cv-58, 2020 WL 240812, at *2 (S.D. Ohio Jan. 16,
2020). “[A] district court cannot uphold an ALJ’s decision, even if there ‘is enough evidence in
the record to support the decision, [where] the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.’” Ephraim v. Saul, No. 1:20-cv-
00633, 2021 WL 327755, at *7 (N.D. Ohio Jan. 8, 2021), report and recommendation adopted
sub nom. Ephraim v. Comm’r of Soc. Sec., 2021 WL 325721 (N.D. Ohio Feb. 1, 2021) (quoting
Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011)).
There is no dispute that the ALJ adopted Dr. Goldsmith’s opinion that plaintiff was
limited to superficial interaction with coworkers and supervisors.9 Plaintiff takes issue with the
ALJ’s definition of “superficial,” which the ALJ defined as able to receive simple instructions,
ask simple questions, and receive performance appraisals but as unable to engage in more
complex social interactions such as persuading other people and resolving interpersonal
conflicts. (Tr. 2029). Plaintiff argues the ALJ created his own arbitrary definition of the term
superficial without any explanation for that definition or for the specific limitations included
therein.
The issue is whether the ALJ’s failure to explain how he arrived at his definition of
“superficial” interaction requires a remand for further proceedings. In Betz v. Comm’r of Soc.
Sec., No. 3:21-cv-2408, 2022 WL 17717496 (N.D. Ohio Nov. 8, 2022), report and
9 The ALJ went a step further and restricted plaintiff to no contact with the public, and plaintiff does not take issue
with this finding.
recommendation adopted, 2022 WL 17985680 (N.D. Ohio Dec. 29, 2022), the court addressed a
similar situation where the ALJ found the plaintiff was limited to “superficial contact,” and the
ALJ defined that term as “no tasks involving arbitration, negotiation, confrontation, directing the
work of others, persuading others or being responsible for the safety or welfare of others.” Id., at
*1. The plaintiff in Betz similarly argued the ALJ erred by failing to provide any reasoning or
explanation for using that definition or for rejecting counsel’s alternative definition. Id., at *10.
The Betz court rejected that argument, explaining in relevant part:
The term “superficial interaction” is not defined under the Dictionary of
Occupational Titles (“DOT”) or Selected Characteristics of Occupations (“SCO”).
See Stoodt v. Comm’r of Soc. Sec., No. 3:20-cv-2370, 2022 U.S. Dist. LEXIS
43108, at *49, 2022 WL 716105 (N.D. Ohio Jan. 13, 2022). And there have been
contrary findings as to whether the “plain meaning” of the term requires further
definition. See Beulah v. Comm’r of Soc. Sec., No. 1:20-cv-2271, 2022 U.S. Dist.
LEXIS 92055, at *94, 2022 WL 1609236 (N.D. Ohio Mar. 25, 2022) (holding that
the term “superficial” does not have a defined meaning for purposes of vocational
testimony); but contrast Dawn M. v. Comm’r of Soc. Sec., No. 3:20-cv-0258, 2022
U.S. Dist. LEXIS 102055, at *18, 2022 WL 2037804 (S.D. Ohio June 7, 2022)
(holding that the term “superficial” “is a well-defined limitation in the Social
Security context.”). In cases in which the definition of “superficial” interaction has
been in dispute, however, it has been tied to the consideration of VE testimony or
a medical opinion. See e.g., Stoodt, 2022 U.S. Dist. LEXIS 43108 at *47-54, 2022
WL 716105 (remanding the ALJ’s decision because the ALJ failed to build a logical
bridge between the evidence and the ALJ’s finding that the claimant was limited to
“superficial” interactions when such findings were contrary to the state agency
consultants’ opinions); Beulah, 2022 U.S. Dist. LEXIS 92055, at *86-98, 2022 WL
1609236 (remanding the ALJ’s decision because the ALJ failed to adequately
explain her failure to include a “superficial” interaction limitation in the RFC after
putting one to the VE).
***
At its core, Betz’s argument rests on the contention that the ALJ failed to adequately
explain how he chose his definition of the term superficial contact, making the
definition arbitrary. The ALJ, however, defined the scope of “superficial”
interactions and used that definition both in posing hypothetical questions to the
VE and in articulating his RFC findings. (Tr. 20, 57-58). Further, none of the
opinion evidence provided a conflicting definition of superficial contact. Thus,
unlike other cases that have addressed an ALJ’s use of the term “superficial”
interactions, this case does not hinge on whether the ALJ’s definition was consistent
with the VE’s or other opinions’ articulations.
***
Looking at the decision as a whole and with common sense allows for meaningful
review of the ALJ’s evaluation of Betz’s RFC. See Reynolds, 424 F. App’x at 416.
Although the ALJ must connect the RFC limitations to the evidence and build a
logical bridge between the two, this does not require that the ALJ provide explicit
reasoning for why he defined superficial the way he did. Rather, the ALJ needed
to explain why he determined that Betz was limited to superficial contact as he
defined it, and it is sufficient that the record not be clearly contrary to that definition.
See Fleischer, 774 F. Supp. 2d at 877. And here, the ALJ’s discussion of the record
evidence related to Betz’s mental health conditions built such a bridge.
***
Although the ALJ did not explicitly provide a reason for why he chose to define
“superficial” as he did, the evidence both makes such a definition reasonable and
does not directly contradict any portion of it. Nor has Betz identified any
contradictory evidence. As such, for us to nitpick the ALJ’s definition of
“superficial” would risk involving us with invading the zone of choice within which
the Commissioner operates. . . .
Id., at *10-12 (citation omitted). See also Charlee N. A. v. Comm’r of Soc. Sec., No. 2:22-cv-
3085, 2023 WL 312791, at *5 (S.D. Ohio Jan. 19, 2023) (“The undersigned agrees with those
courts that find no reversible error where the opining source neglects to define the term
‘superficial interaction’ and the ALJ provides a sufficient explanation for why he or she
determined that the claimant was limited to superficial contact as the ALJ defines that term.”)
(citing Betz, 2022 WL 17717496), report and recommendation adopted, 2023 WL 1766096
(S.D. Ohio Feb. 3, 2023).
In the instant case, Dr. Goldsmith opined that plaintiff was limited to “superficial
interpersonal contact,” without defining the term “superficial.” (Tr. 102). The ALJ adopted Dr.
Goldsmith’s limitation of “superficial interpersonal contact,” and the ALJ defined that term as
meaning “able to receive simple instructions, ask simple questions, and receive performance
appraisals but as unable to engage in more complex social interactions such as persuading other
people and resolving interpersonal conflicts.” (Tr. 2029).
Although the ALJ did not explain how he arrived at his definition of superficial, the
definition he chose is supported by substantial evidence and is not contradicted by the other
record evidence. Dr. Goldsmith opined plaintiff was not significantly limited in the ability to
understand, remember, and carry out very short and simple instructions and ask simple questions
or request assistance. (Tr. 101). In turn, the ALJ’s definition of “superficial” includes Dr.
Goldsmith’s opinions by defining “superficial” “as able to receive simple instructions [] and ask
simple questions[.]” (Tr. 2029). Further, Dr. Goldsmith opined that plaintiff was moderately
limited in the ability to work in coordination with or in proximity to others without being
distracted by them, accept instructions and respond appropriately to criticism from supervisors,
get along with coworkers or peers without distracting them or exhibiting behavioral extremes,
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness,
respond appropriately to changes in the work setting, and set realistic goals or make plans
independently of others. (Tr. 101-03). Dr. Rivera likewise opined that plaintiff was moderately
limited in his social interactions, including his ability to accept instructions and respond
appropriately to criticism from supervisors and to get along with coworkers or peers without
distracting them of exhibiting behavioral extremes. (Tr. 691). The ALJ accommodated these
moderate limitations and restrictions by finding plaintiff was able to “receive performance
appraisals,” but he was “unable to engage in more complex social interactions such as
persuading other people and resolving interpersonal conflicts.” (Tr. 2029). In addition, the
ALJ’s hypothetical questions to the VE incorporated the ALJ’s definition of superficial, and
based on this definition, the VE testified there were a significant number of available jobs. (Tr.
2074-75).
The ALJ’s defined scope of “superficial” interactions was incorporated into the RFC
determination and the hypothetical questions posed to the VE. Plaintiff has not cited to opinion
evidence that contradicts the ALJ’s superficial interaction definition. Similar to Betz, the ALJ
here was required “to explain why he determined that [plaintiff] was limited to superficial
contact as he defined it, and it is sufficient that the record not be clearly contrary to that
definition.” Betz, 2022 WL 17717496, at *11. The ALJ’s discussion of the medical record and,
in particular, the opinions of the state agency psychologists, substantially support the ALJ’s
definition of “superficial” enabling this Court to meaningfully review the decision. As the ALJ
adequately explained the basis for his RFC finding—a finding that the ALJ alone is empowered
to craft—the Court recommends that plaintiff's second assignment of error be overruled.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's Statement of Errors (Doc. 11) be OVERRULED and the Commissioner’s
non-disability finding be AFFIRMED.
2. Judgment be entered in favor of the Commissioner and this case be closed on the
docket of the Court.
Date: 4/5/2023 Herm K Rethovr-
Karen L. Litkovitz
Chief United States Magistrate Judge
27
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RICHARD S., Case No. 2:22-cv-2176
Plaintiff, Sargus, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).