The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK WAYNE MOORE, JR. CASE NO. 1:25-cv-1156
Plaintiff, DISTRICT JUDGE
JOHN R. ADAMS
vs.
COMMISSIONER OF SOCIAL MAGISTRATE JUDGE
SECURITY, JAMES E. GRIMES JR.
Defendant.
REPORT AND
RECOMMENDATION
Plaintiff Mark Wayne Moore Jr. filed a complaint against the
Commissioner of Social Security seeking judicial review of the Commissioner’s
decision denying his applications for child’s disability benefits and
supplemental security income. Doc. 1. This Court has jurisdiction under 42
U.S.C. §§ 405(g) and 1383(c). The Court referred this matter to a Magistrate
Judge under Local Rule 72.2(b)(1) for the preparation of a Report and
Recommendation. Following review, and for the reasons stated below, I
recommend that the District Court affirm the Commissioner’s decision.
Procedural Background
In August 2021 and October 2023, Moore filed applications for
supplemental security income and child’s insurance benefits, respectively,
alleging a disability onset date of March 1, 2014.1 Tr. 175, 184, 236.2 Moore
alleged disability due to learning difficulties, emotional disorder, and mild
“MR.” Tr. 210. The Commissioner denied Moore’s application initially and on
reconsideration. See Tr. 109, 121.
In October 2023, Moore requested a hearing. Tr. 125. Administrative
Law Judge (“ALJ”) Penny Loucas held a telephonic hearing in May 2024. Tr.
46. Moore appeared, testified, and was represented by counsel at the hearing.
Id. Qualified vocational expert Lauren Petkoff also testified. Id. Later in May
2024, the ALJ issued a written decision, which found that Moore was not
entitled to benefits. Tr. 14.
In July 2024, Moore appealed the ALJ’s decision to the Appeals Counsel.
Tr. 171. In April 2025, the Appeals Counsel denied Moore’s appeal, Tr. 1,
making the ALJ’s April 2024 decision the final decision of the Commissioner.
Tr. 14–45; see 20 C.F.R. § 404.981.
1 “Once a finding of disability is made, the [agency] must determine the
onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x
422, 425 (6th Cir. 2006).
2 Moore’s opening brief alleges a disability onset date of March 1, 2014,
and supports this date with a citation to three pages in the administrative
record. See Doc. 7 (citing Tr. 89, 175, 184). Of the pages Moore cites, only Tr.
89 and 184, which pertain to Moore’s child’s insurance benefits application,
indicate an onset date of March 1, 2014. By contrast, Moore’s application for
supplemental security income alleges that “[m]y disability began on September
1, 2018.” Tr. 175. Neither party, nor the ALJ, remark on this discrepancy and
all describe that Moore’s disability began in March 2014. So I have included a
disability onset date of March 1, 2014.
Evidence3
Personal, Educational, Vocational
Moore was born in 1996 making him 17 years old as of the alleged onset
date. Tr. 175. He completed high school. Tr. 211.
Medical Evidence
The ALJ summarized the undisputed medical evidence as follows:
The record supports that the claimant has
experienced functional limitations related to BIF,
intellectual disability, ADHD, MDD, mood disorder,
and anxiety disorder.
For the period March 1, 2014, through March 1,
2018, the record contains the following remarkable
education and medical records:
The claimant’s education records indicate that he
was on an Individualized Education Program (IEP),
but he was dismissed from speech and language
services based on his progress in these areas. In his
12th grade Evaluation Team Report (ETR) (B2F/16-
46 (12/10/14)), his behavior assessments indicated
low scores in learning problems, interpersonal
difficulties, inappropriate behavior, and
unhappiness/depression; he had difficulty
communicating and regulating his emotions
(B2F/26-27). In testing dated November 6, 2014, the
claimant had a full-scale IQ score of 77, a
performance IQ score of 79, and a verbal IQ score of
78 (B2F/29 (11/06/14)).
Additional testing showed he was functioning at an
elementary school level in all measured areas
(B2F/30 (11/12/14)). His 12th grade IEP indicated
that he was social and outgoing with peers and with
supervisors at work sites; he had positive behavior
3 The recitation of evidence and testimony is not intended to be exhaustive
and is generally limited to the evidence relevant to the parties’ arguments.
and was attentive; and he worked best in
environments that were predictable and routine and
where he could receive one-to-one attention. He
became distracted and off task around others, and
he had periods of time where he would engage in
work refusal, ignoring requests of others, shutting
down, and being physical or aggressive with other
students in the classroom. He received specially
designed instruction in vocational reading and
math, and behavior, in a resource classroom weekly.
He also had a paraprofessional aide for support for
art classes, lunch, and on the bus. His
accommodations included extra time, breaks,
opportunities for movement, repeat directions, and
assignment modifications. He was not excused from
the Ohio Graduation Test and did not participate in
alternate assessments (B2F/2-15 (12th grade IEP
effective 12/10/14-12/09/15)).
In August of 2017, the claimant attended a physical
examination with his sister. On examination, his
judgment and insight were intact; and his mood and
affect were normal (B1F/4- 6 (08/04/17)). At a
consultative psychological examination on January
3, 2018, the claimant reported caring for his sister’s
young children for several hours each day. On
examination, he was well-groomed, at ease, and
cooperative; his eye contact was good; his
intelligence was assessed as lower than average; he
had no abnormal motor activity; his speech was
unremarkable; he was calm and established easy
rapport; he was not paranoid, did not make
delusional statements, and there was no indication
of overt psychosis; he was alert and oriented times
three; he could not spell “world” either forward or
backward; he could not perform basic mathematical
calculations; his immediate, short, and long-term
memory recall for three items was perfect; and his
insight was fair (B4F/3-5).
After this period, the record does not contain
evidence that the claimant received specialized
mental health treatment between the time of his
graduation from high school and 2021. Rather, it
shows that beginning in September of 2021, the
claimant underwent individual counseling, and
beginning in November of 2022, he received
psychiatric medication management, as well (see
B11F/152-235 (09/21/21-11/29/22)). The undersigned
notes that the claimant underwent psychological
testing on May 8, 2019, where his full-scale IQ score
was 75, his performance IQ score was 80, and his
verbal IQ score was 74. He also underwent an
achievement test, which showed the claimant’s
reading to be at about a fourth-grade level. He was
assessed with anxiety disorder, and BIF (B13E/62-
64 and B5F/3-4 (05/28/19)).
For the period beginning October 17, 2023, there are
some remarkable findings relating to the claimant’s
concentration and mood, but his examinations were
otherwise unremarkable. His remarkable
psychiatric/mental status examination findings and
reports include the following: At a counseling
session in October of 2023, the claimant reported his
medication was working well, his mood was
improving, and his ADHD medication was helping.
On examination, he was engaged; his appearance
was appropriate; his behavior was cooperative; his
speech was monosyllabic; his mood was nervous and
anxious, and his affect was appropriate for the
circumstances; he had depressive cognitions; and his
insight and judgment were appropriate (B11F/47-9
(10/16/23)). At a psychiatric medication
management appointment later that month, he
reported doing “pretty good;” on examination, his
appearance was neat; his eye contact was good, and
he was cooperative; his motor activity was restless;
his speech was rapid; his affect was full range, and
his reported mood was depressed, anxious, and
worried; he had depressive cognitions and racing
thoughts; he was distracted; and his insight and
judgment were poor (B11F/40-46 (10/25/23)). At
counseling a few days later, his mood was
nervous/anxious, and he had depressive cognitions,
but the rest of his examination was unremarkable
(B11F/37-39 (10/30/23)).
In November of 2023, the claimant reported having
a migraine; his counseling notes indicate his
appearance was disheveled, and he had depressive
cognitions, but his examination was otherwise
unremarkable (B11F/34-36 (11/08/23)). A few weeks
later, he was relaxed, engaged, and cooperative; his
speech was monosyllabic; and his examination was
otherwise unremarkable (B11F/31-33 (11/22/23)). At
counseling in early December, his speech was rapid;
his mood was nervous/anxious; and he had
depressive cognitions (B11F/28-30 (12/06/23)). At a
physical examination that month, he was alert and
oriented times three; his mood and affect were
within normal limits; and his insight and judgment
were intact (B8F/6-8 (12/19/23)). At his next
counseling session, he was engaged and made good
eye contact; he had depressive cognitions, but his
examination was otherwise unremarkable
(B11F/25-27 (12/20/23)).
At counseling in January of 2024, he reported
having been sick and not having taken his ADHD
medication for a few days, and on examination, he
was disheveled; his mood was nervous and anxious,
and the rest of his examination was unremarkable
(B11F/22-24 (01/03/24)). At a medication
management appointment the next day, his
appearance was neat; his eye contact was good; his
motor activity was restless; his speech was rapid; his
affect was full range; his mood was depressed,
anxious, and worried; he had depressive cognitions
and racing thoughts; he was distracted, but
cooperative; and his insight and judgment were poor
(B11F/16-21 (01/04/24)).
At counseling in mid-January of 2024, his
examination was unremarkable (B11F/13-15
(01/17/24)). At the end of the month, his speech was
rapid, and he had depressive cognitions, but his
examination was otherwise unremarkable
(B11F/10-12 (01/31/24)).
At counseling in February of 2024, he was engaged;
his appearance was appropriate; his speech was
unremarkable; his mood was neutral and his affect
was appropriate; he had depressive cognitions; and
his insight and judgment were appropriate (B11F/7-
9 (02/14/24)). At his medication management
examination, which he attended with his
stepmother, his appearance was neat; his eye
contact was good; his motor activity was restless; his
speech was rapid; his affect was full range; his mood
was depressed, anxious, and worried; he had
depressive cognitions and racing thoughts; he was
distracted; he was cooperative; and his insight and
judgment were poor. His mood disorder and ADHD
were assessed as improving, and his medication
regimen was continued (B12F/3-7 (02/29/24)). The
undersigned notes that all the examination findings
at the claimant’s medication management
appointments were identical, and in each of them, he
is “improving” as to his mood disorder and “improved
on medication” as to his ADHD (B11F/4, 19, 45).
At counseling in April of 2024, the claimant reported
some depression after a friend passed away; on
examination, his appearance was appropriate; his
behavior was cooperative; his speech was
unremarkable; his mood was neutral; his affect was
appropriate for the circumstances; and his insight
and judgment were appropriate (B12F/1-2
(04/09/24)).
Tr. 31–33.
Vocational Expert Testimony
Qualified vocational expert Lauren Petkoff testified, in relevant part,
regarding whether jobs exist in the national economy for a hypothetical
individual with Moore’s RFC, age, education and work experience. See Tr. 40,
58–9. Ms. Petkoff also discussed what it meant, to her understanding, to
require “supported employment services” and the possible effect if an employee
needed accommodations or engaged in certain conduct during that employee’s
probationary period. Tr. 60–66.
The ALJ’s Decision
The ALJ made the following findings of fact and conclusions of law:
1. Born on March 2, 1996, the claimant had not
attained age 22 as of March 1, 2014, the alleged
onset date (20 CFR 404.102(c)(4) and 404.350(a)(5)).
2. The claimant has not engaged in substantial
gainful activity since March 1, 2014, the alleged
onset date (20CFR 404.1571 et seq., and 416.971 et
seq.).
3. The claimant has the following severe
impairments: borderline intellectual functioning
(BIF); intellectual disability; attention-deficit
hyperactivity disorder (ADHD); major depressive
disorder (MDD); mood disorder; and anxiety
disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire
record, the undersigned finds that the claimant has
the residual functional capacity to perform a full
range of work at all exertional levels but with the
following nonexertional limitations: can understand,
remember, and apply information to complete
simple instructions; can maintain concentration,
persistence, and pace for work tasks that are routine
in nature and do not require hourly production
quotas; can avoid hazards and make simple plans;
and can interact with others so long as work does not
require arbitrating conflicts between parties or
directing the work of others.
6. The claimant has no past relevant work (20
CFR 404.1565 and 416.965).
7. The claimant was born on March 2, 1996, and
was 18 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school
education (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue
because the claimant does not have past relevant
work (20 CFR 404.1568 and 416.968).
10. Considering the claimant’s age, education,
work experience, and residual functional capacity,
there are jobs that exist in significant numbers in
the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569a, 416.969, and
416.969a).
11. The claimant has not been under a disability,
as defined in the Social Security Act, from March 1,
2014, through the date of this decision (20 CFR
404.350(a)(5), 404.1520(g), and 416.920(g)).
Tr. 20–41.
Standard for Disability
Eligibility for social security benefit payments depends on the existence
of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which 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); see also 42 U.S.C.
§ 1382c(a)(3)(A).
An ALJ is required to follow a five-step, sequential analysis to make a
disability determination:
1. Is the claimant engaged in substantial gainful
activity? If so, the claimant is not disabled.
2. Does the claimant have a medically
determinable impairment, or a combination of
impairments, that is “severe”? If not, the
claimant is not disabled.
3. Does the claimant’s impairment meet or equal
one of the listed impairments and meet the
duration requirement? If so, the claimant is
disabled. If not, the ALJ proceeds to the next
step.
4. What is the claimant’s residual functional
capacity and can the claimant perform past
relevant work? If so, the claimant is not
disabled. If not, the ALJ proceeds to the next
step.
5. Can the claimant do any other work
considering the claimant’s residual functional
capacity, age, education, and work
experience? If so, the claimant is not disabled.
If not, the claimant is disabled.
20 C.F.R. §§ 404.1520, 416.920; see Jordan v. Comm’r of Soc. Sec., 548 F.3d
417, 422 (6th Cir. 2008); see also Social Security Ruling 11-2p, 2011 WL
4055665, at *3 (Sept. 12, 2011) (setting out the same five-step analysis for cases
involving “young adults”). Under this sequential analysis, the claimant has the
burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden
shifts to the Commissioner at step five “to prove the availability of jobs in the
national economy that the claimant is capable of performing.” Id. “The
claimant, however, retains the burden of proving her lack of residual functional
capacity.” Id. If a claimant satisfies each element of the analysis and meets the
duration requirements, the claimant is determined to be disabled. Walters
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Standard of Review
A reviewing court must affirm the Commissioner’s conclusions unless it
determines “that the ALJ has failed to apply the correct legal standards or has
made findings of fact unsupported by substantial evidence in the record.”
Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which
“a court … asks whether” the “existing administrative record … contains
‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek
v. Berryhill, 587 U.S. 97, 102 (2019) (citations omitted). The substantial
evidence standard “is not high.” Id. Substantial evidence “is ‘more than a mere
scintilla’” but it “means only[] ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id. at 103 (citations
omitted). The Commissioner’s “findings … as to any fact if supported by
substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at
99.
A court may “not try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
2007). Even if substantial evidence or a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the
Commissioner’s decision “so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003). This is so because there is a “zone of choice within which”
the Commissioner can act, without fear of judicial “interference.” Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).
Discussion
Moore presents one issue statement in support of his appeal:
The ALJ’s RFC determination is not supported by
substantial evidence because the ALJ failed to
properly evaluate whether Plaintiff maintained the
capability to perform and sustain work during the
probationary period.
Doc. 9, at 8. At the outset, the Court notes that that Moore attempts to present
multiple other arguments under this single-issue, one argument heading.
Moore’s attempt to brief multiple issues and subparts under a single heading
is not only ineffective it contravenes this Court’s initial order. Doc. 5, at 3
(“Each introductory heading in the Argument or Analysis section of a brief
must correspond to the argument presented under the heading. Failure to
comply with this requirement may result in (a) waiver of the arguments in the
heading and in the text following the heading; (b) striking of the offending
brief; and (c) other appropriate sanctions. Similarly, bald assertions of error––
those unsupported by explanation and argument––will be deemed waived.”).
As a sanction for this approach to briefing, the Court could strike all portions
of Moore’s arguments that are not clearly contemplated by his argument
heading.4
Turning to Moore’s overarching argument, Moore argues that the ALJ
erred because she “failed to evaluate whether [Moore] is capable of sustaining
work during [a] probationary period.” Doc. 9, at 9.5 Relevant to this argument,
in August 2019, an entity called Opportunities for Ohioans with Disabilities
provided Moore with an individualized plan for employment. See Tr. 315–19.
The plan included the following question and answer:
What is the projected need for Supported
Employment Services?
None are anticipated at the is time.
Id. at 316. It also included the statement that:
We agreed that job coaching will help you transition
back into employment, especially as you begin a new
job. You will be working closely with a
supervisor/trainer for the first few weeks and a job
coach can assist with your early training.
Id. at 317.
4 Should Moore’s counsel continue to employ this approach in future
briefs, the Court may determine that any argument not properly raised is
forfeited.
5 In this report and recommendation, the Court refers to the CM/ECF-
generated page numbers at the top of the parties’ filings.
In July 2019, Moore met at a local library with Randi J. Elder, who
completed a vocational evaluation.6 See Tr. 329–59. In a resulting
supplemental vocational evaluation report, Elder stated that given Moore’s
“very limited work experience,” she recommended the use of a “job coach … to
assure a smooth transition into the work force.” Tr. 358.
Without citing the record, Moore asserts that the vocational expert
testified that the need for a job coach during a probationary period would be
work preclusive.7 Doc. 9, at 8–9. From this, Moore concludes that the ALJ erred
by not including in the RFC the need for a job coach during a probationary
period. Id. at 10.
There are a few problems with this line of argument, starting with the
fact that Moore omits its factual basis—Elder’s evaluation and
recommendation—from his recitation of the facts. The Court may thus
disregard Elder’s evaluation. See Doc. 5, at 3–4. And without Elder’s
evaluation, Moore’s argument lacks an essential premise.
Further, even putting aside this omission aside, Moore ignores the fact,
noted by the ALJ, that his individualized plan for employment concluded that
he did not need supportive employment services. Tr. 40, 316. Indeed, Elder’s
6 In the record, Elder’s name is followed by the following credentials:
“M.A., M.Ed., C.R.C., C.C.M., LP.C.” Tr. 359.
7 Although Moore cites page 59 of the transcript at the beginning of the
paragraph containing this assertion, the relevant testimony is found at page
63.
comment that “job coaching will help [Moore] transition back into
employment,” is simply a truism. But the fact that job coaching would help
does not mean that, contrary to Moore individualized employment plan, Moore
requires it to work.8
Finally, the basis for Elder’s recommendation that Moore use a job coach
was not a physical or mental limitation, but the fact that Moore had “very
limited work experience.” Tr. 358.
In the end, the ALJ’s decision is supported by substantial evidence and
Moore’s own briefing shows that the ALJ considered and weighed the evidence
Moore references. See Doc. 9, at 12–13 (citing for example Dr. Rindsberg and
Nurse Colucci’s opinions and citing the ALJ’s discussion of the same).
Additionally, the ALJ explicitly stated that she considered the entirety of the
record in reaching her decision. See e.g., Doc. 7, at 29. And the fact that Moore
can cite other evidence in the record which may, in his view, support a different
outcome is irrelevant to this Court’s inquiry. The ALJ, not Moore or this Court,
is solely responsible for weighing the evidence. See 20 C.F.R. § 404.1520c(a)
(explaining how the ALJ will consider and weigh medical opinions and prior
administrative medical findings); see also Rottmann v. Comm’r of Soc. Sec., 817
8 Notably, ALJs “may rationally rely on specific imperatives regarding a
claimant’s limitations, rather than recommendations.” Rounds v. Comm’r Soc.
Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Elder’s recommendation is
self-evidently not stated in mandatory terms.
F. App’x 192, 196 (6th Cir. 2020)) (“this court does not weigh evidence, assess
credibility, or resolve conflicts in testimony—that’s the ALJ’s job.”).
Oddly enough, Moore provides nothing to support his claim that the
ALJ’s decision “is not supported by substantial evidence” or that the ALJ failed
to consider the evidence. And this matters because “so long as substantial
evidence supports the conclusion reached by the ALJ” it doesn’t matter that
Moore can show substantial evidence also supports his position. Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997). To succeed on a substantial
evidence argument, Moore must show the ALJ’s decision is unsupported by
substantial evidence, not that his position is supported. See Warner v. Comm’r
of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). Moore has failed to do so. His
sole argument thus fails.
Additionally, while it is clear that Moore believes the ALJ should have
provided a limitation for job-coaching support during the probationary period,
it is not clear why Moore believes that a failure to include this limitation could
support remand in his circumstances. Moore claims that “the ALJ failed to
properly evaluate whether [he] maintained the capability to perform and
sustain work during the probationary period,” see Doc. 9, at 8, but fails to
explain what evaluative process the ALJ failed to conduct.
In his opening brief, Moore focuses on a portion of vocational expert
Petkoff’s comments made during her testimony. See Doc. 9, at 9 (stating that
“[t]he VE testified that an individual who required supported employment
services would need a job coach or special accommodations in order to perform
work” and that “any type of accommodation would be work preclusive.”). In his
reply, Moore asserts that because he “required a job coach to successfully
transition to new employment, he was not capable of competitive employment
under the Agency’s regulations.” See Doc. 13, at 1 (citing Doc. 9, at 7–12).
Moore, however, does not provide a citation to support his assertion that he
required a job coach and the record belies his premise. See Tr. 40, 316.
In fact, Petkoff’s testimony does not support Moore’s premise. Her
statement that an individual who required supported employment services
would need a job coach or special accommodations in order to perform work,
came in response to the ALJ’s question regarding Moore’s individualized plan
for employment. Again, that document stated that Moore did not need any
“supported employment services” at that time. See Tr. 40. The following
discussion occurred during Petkoff’s testimony:
Q Ms. Petkoff, are you familiar with the Bureau of
Vocational Rehabilitation Services and the services
that they provide?
A Yes. According to my CV, I have experience
working for that agency through a contract.
Q Okay, so I'm going to ask you some questions
about some of the terminology and the things that I
saw in the claimant's BVR records. What does it
mean when they say projected need for supported
employment services? That's at Exhibit B13 Page 7.
I know that you don't have access to B13. Maybe it's
13E. Yeah, it's 13E. Yeah, do you know what that
means?
A So Supported Employment Services, that was
something that was developing more and more as I
was actually transitioning out of the system. But to
my recollection, it’s basically Supported
Employment Services means that the individual
may require like the use of a job coach or special
accommodations in order to perform work.
Q Okay, so I'm looking at Page 7. I got that from
Page 7. When completing the job search on
Indeed.com using zip code for this area, 14 jobs were
generated, okay? What is the projected need for
Supported Employment Services? They say none are
anticipated at this time. So that means that they
didn’t anticipate back then that he would need
Supported Employment Services even for the 14 jobs
they appeared to have identified back then. Is that
how I can interpret that? Is that a fair interpretation?
A Yes, that would be my interpretation as well.
Q Okay.
Tr. 58–59 (emphasis added).
Moore’s specific contention––that the ALJ failed to properly evaluate
Moore’s ability to work during the probationary period––arises out of a line of
inquiry initiated by Moore’s attorney, during which the ALJ interjected to
explain the agency’s policy regarding evaluation of probationary periods:
Q Okay, so if an individual required that type of job
coaching accommodation that you mentioned even
short term or the beginning stage of the job, would
that type of necessary support be work preclusive in
competitive employment?
A Oh, goodness. So this is a difficult question to
answer and I may be over-analyzing that question
because the idea of having that job coach initially for
the first maybe two to four weeks is to maybe you
know, help the individual learn that job maybe or
perform or learn how to perform the job tasks in a
different way. I mean, there's a multitude of reasons
why the job coach may be necessary but the idea
behind that kind of the job coach is so that the
individual can transition into that competitive job.
So from a BVR to OOD standpoint, that individual
hopefully after the 90 days no longer needs a job
coach and you know, they can remain at that
competitive job. But I also understand too from a
Social Security perspective any type of
accommodations you know, could render the
individual work preclusive. So I guess if we're
strictly looking at it from a Social Security
perspective, I guess any type of accommodation
would be work preclusive.
ALJ: Well, and then at this point I do need to
interject that the policy, this question about 90 days
and what kind of assistance or modifications are
needed during the probationary period. Policy is that
whenever you are a vocational expert or even a
hypothetical, it's addressing that period of time after
the initial 90-day probationary period. Whatever
accommodations or limits are part of that 90-day
period to help the person learn is not a part of the
policy consideration in assessing whether or not the
person could continue on a fulltime basis and
maintain competitiveness. So you know, that I think
kind of addresses where you and or Mr. Bloom are
addressing. You know, well if you can't get through
the 90 days without some assistance well, that's not
really a part of the policy. The policy is you know,
after that 90 days. The question is as to whether or
not the person can sustain work is after that 90-day
probationary period. It doesn't apply for what is
going on during or prior to the 90-day period being
complete.
ATTY: I would object to that interpretation, Your
Honor. I think that's incorrect.
ALJ: That's fine.
ATTY: Yeah.
ALJ: You can go ahead and object and it's so noted.
Q So going back to Ms. Petkoff so if an individual in
competitive employment, someone had 30 days to
learn a job or whatever. You know, it's an unskilled
job as you listed those jobs in response to the Judge's
first hypothetical. Those jobs, if a person showed up
and said I need a job coach to be here, would that
preclude those jobs?
A I feel like -- I'm so sorry, I don't know if I can
answer that question.
Q Yeah. Well, so if the -- I'm sorry, can you tell me
the jobs you identified in the response to the Judge's
hypothetical one more time? I didn't write them
down, I'm sorry.
A That's okay. Cleaner II, a store's laborer, and linen
room attendant.
Q Okay, so if a person shows up to the linen room
attendant job and then they're unable to do the job
without the job coach being involved for the first 30
days, would they be fired?
A Well, I guess I'm in an interesting predicament
because I'm kind of caught in the middle between
interpretations here. But you know, if the individual
is still able to maintain that competitive job after 90
days after needing that job coach, then it wouldn't
be work preclusive.
Q But from a vocational expert standpoint having
placed people in jobs, not coached them in the jobs
but you've placed them in jobs, and they're there and
they can't do it in the first two weeks because they
need additional support to learn how to do the job.
To understand the job and without the additional
support, then they just aren't doing it right, right?
Or aren't doing it at all and so surely an employer
would just fire someone if they can't do the job that
they hired them to do, right?
A If the hypothetical individual is not meeting
employer expectations within that probationary
period, that individual can be met with reprimand
up to and including termination.
Tr. 62–65.
As this excerpt illustrates, Moore’s argument is a red herring because
he has not established his premise that he required a job coach during a
probationary period. At most, he’s raised the possibility that a job coach would
be helpful. And his argument extrapolates on his disagreement with the ALJ’s
explanation of agency policy during the hearing. See Doc. 9, at 11–12. But the
ALJ explained that she considered and rejected Moore’s earlier arguments, see
Tr. 30, and Moore has not pointed to any binding authority that contradicts
the ALJ’s explanation regarding her consideration of an employee’s needs
during probationary periods, see Tr. 40. Instead, Moore explains that he
“disagrees” with the policy cited by the ALJ. Doc. 9, at 10. To the extent that
Moore disagrees with the Commissioner’s policy on considering probationary
periods and the potential effect of an individual’s need for assistance during
the probationary period––which, as noted, the record shows Moore did not
require––his disagreement without more is not basis to remand.
Additionally, the cases on which Moore relies, concerned claimants who,
unlike Moore, were found to be incapable of completing a probationary period.
See Doc. 9, at 10 (citing cases in which individuals were found unable to
complete a probationary period of employment). So Moore’s argument does not
provide a basis for remand.
Moore presents several additional arguments, none of which are
properly presented. See Doc. 5, at 3. But construing them as supporting
Moore’s main argument, they fail. The fact Dr. Rindberg’s or Nurse Colucci’s
opinions could support an alleged need for a job coach during a probationary
period, Doc. 9, at 12–13, is irrelevant given the absence of evidence that Moore
required a coach. And the fact that the record could support a different
conclusion does mean that substantial evidence does not support the ALJ’s
determination.
Finally, Moore’s argument that the ALJ erred at step five when she
failed to explain why a job coach would not be required, id. at 14, fails at the
threshold because Moore hasn’t shown that a job coach would be required.
Conclusion
For all of the reasons stated, I recommend that the ALJ’s decision be
affirmed.
Dated: February 6, 2026 /s/ James E. Grimes Jr.
James E Grimes Jr.
United States Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).