UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONDAL M. CORNELL,

Plaintiff,

Civil Action 2:11-cv-00097

vs. Judge Edmund A. Sargus

Magistrate Judge E.A. Preston Deavers

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff, Rondal M. Cornell, brings this action under 42 U.S.C. §§405(g) for review of a

final decision of the Commissioner of Social Security (“Commissioner”) denying his application

for disability insurance benefits. Plaintiff filed his application for disability insurance benefits in

March 2006, alleging that he has been disabled since February 26, 2004 due to various mental

and physical impairments. (R. at 61–67, 86.) The application was denied initially and again

upon reconsideration. Plaintiff requested a de novo hearing before an administrative law judge

(“ALJ”).

On September 9, 2009, ALJ Robert S. Habermann held a hearing at which Plaintiff,

represented by counsel, appeared and testified. A vocational expert also appeared and testified at

the hearing. On October 17, 2008, the ALJ issued a decision finding that Plaintiff was not

disabled within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s

request for review and adopted the ALJ’s decision as the Commissioner’s final decision on

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December 20, 2010. Plaintiff timely commenced this action.

This matter is before the Magistrate Judge for a Report and Recommendation on

Plaintiff’s Statement of Errors, the Commissioner’s Memorandum in Opposition, and Plaintiff’s

Reply. In his Statement of Errors, Plaintiff maintains that the ALJ failed to properly account for

his mental limitations in assessing his residual functional capacity (“RFC”). For the reasons that

follow, it is RECOMMENDED that the Court REMAND this case for further consideration

consistent with this Report and Recommendation.

II. PLAINTIFF’S TESTIMONY

Plaintiff was fifty-two years old at the time of the administrative hearing. (R. at 238.) 

He has past relevant work operating vehicles including a dump truck. (R. at 257.)

At the hearing Plaintiff chose February 26, 2004 as his disability onset date because on

that day his legs gave out while he was working, causing him to fall off a trailer and break his

left femur. (R. at 244–45.) Plaintiff stated that he experiences back pain everyday and that this

pain runs down his back through his legs. (R. at 249–50.) He also testified to continuing

problems with his legs with pain radiating into his feet. (R. at 251–52.) Plaintiff reported using

a cane and also noted that sometimes his right leg will give out. (R. at 251, 256.) Plaintiff stated

that he has some problems with his right arm and shoulder as well as arthritis in his hands. (R. at

252–53.)

During the hearing, Plaintiff testified regarding his mental limitations and impairments. 

Plaintiff stated that after completing the seventh grade he was transferred to vocational school. 

(R. at 239.) Ultimately, Plaintiff finished the tenth grade. (Id.) He reported having difficultly

with reading and writing. (R. at 239–40.) Plaintiff explained that he suffers from depression. 

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(R. at 254.) He stated that he good days and bad days, estimating that he averaged two good

days a week. (Id.) On his good days Plaintiff is able to get up, walk around, and go out into his

yard. (Id.) On his bad days Plaintiff testified to being unable to do anything and not wanting to

talk to anyone. (R. at 254–55.)

With regards to daily activities, Plaintiff stated that he has trouble sleeping and getting up

in the mornings. (R. at 240–41.) Plaintiff reported needing some assistance in his daily

grooming and noted that his wife prepares his meals. (R. at 241–42.) Plaintiff testified that after

getting up he normally goes and sits on his porch and rides his four wheeler to go feed his

animals. (R. at 243.) Plaintiff noted that he tries to go for walks and can walk to his mailbox

and back, which is approximately one-hundred yards away. (Id.) He stated that he needs to rest

about an hour and a half each day. (R. at 244.)

Finally, during the hearing Plaintiff testified to his past relevant work. (R. at 247–48.) 

Plaintiff reported being a self-employed truck driver for approximately four years. (R. at 247.) 

He indicated that during this time he drove both semi and dump trucks. (R. at 247–48.) 

According to Plaintiff, he did not typically have to drive far from home when doing this work. 

(R. at 248.) Although Plaintiff was self employed, he did not complete his own business records. 

(R. at 248.)

III. MEDICAL RECORDS

On February 13, 2006, Dr. Balusamy Subbiah, Plaintiff’s primary care physician,

diagnosed Plaintiff with severe depression.1

 (R. at 153, 171.) At this time, Plaintiff was already

1

 The Court notes that the record contains medical evidence dating back to Plaintiff’s

femur fracture in February 2004. Nevertheless, in his Statement of Errors, Plaintiff does not

challenge the ALJ’s decision with respect to his physical impairments. Accordingly, the Court

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on Wellbutrin for his depression. (Id.) Dr. Subbiah told him to continue on this medication. 

(Id.) Plaintiff, however, did not feel the medication was helping. (Id.)

Dr. Evelyn L. Kirkhart saw Plaintiff for two consulting appointments in September and

October 2005, and completed a written evaluation detailing Plaintiff’s impairments. (R. at

148–50.) Dr. Kirkhart found Plaintiff to be chronically-passive aggressive and opined that

Plaintiff was either angry or depressed most of the time. (R. at 149.) She noted that Plaintiff

was resistant to authority; tended to perceive that others were causing him problems; had a low

frustration tolerance; had a short temper; did not like public places; and lacked social skills. (Id.) 

Dr. Kirkland concluded that Plaintiff was functionally illiterate, but had average intelligence. 

(Id.) She opined that Plaintiff’s inability to read or write caused him to feel socially inferior. 

(Id.) Dr. Kirkland also noted that Plaintiff’s recent accident had exacerbated his previous

difficulties. (Id.) Plaintiff reported to Dr. Kirkland that he was a chronic alcohol user. (Id.) Dr.

Kirkland opined that his alcohol use exacerbated his chronic pain and that he would need a

period of sustained alcohol abuse rehabilitation before he would be able to tolerate stress. (R. at

150.) Ultimately, Dr. Kirkland diagnosed Plaintiff with psychological factors affecting medical

condition and coping style; mood disorder due to substance induced mood (alcohol abuse); and

bipolar disorder. (Id.)

On June 3, 2006, Psychologist Richard E. Sexton examined Plaintiff and completed a

disability assessment. (R. at 160–65.) Plaintiff reported occasional alcohol use to Dr. Sexton,

but denied that it was a problem. (R. at 160.) Dr. Sexton concluded from testing that Plaintiff

was within the borderline range of overall intelligence. (R. at 162.) Plaintiff’s testing further

will focus its review of the medical evidence on Plaintiff’s mental impairments.

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demonstrated that Plaintiff was at a fifth grade level in reading, a second grade level in spelling,

and a fourth grade level in arithmetic. (R. at 163.) Dr. Sexton diagnosed Plaintiff with

dysthymic disorder; somatoform disorder—not otherwise specified; and borderline intelligence. 

(R. at 164.) He assigned Plaintiff a current global assessment of functioning (“GAF”) score of

55 to 59.2 (R. at 164.) 

Dr. Sexton opined that Plaintiff was capable of performing simple repetitive tasks and

could understand, recall, and carry out simple instructions. (R. at 165.) Dr. Sexton indicated

that as tasks became more complicated and challenging, Plaintiff’s overall performance tended to

be maintained at a comparable level, with Plaintiff being stronger at non-verbal tasks. (Id.) 

According to Dr. Sexton, Plaintiff’s ability to interact with others was fair. (Id.) Dr. Sexton

suggested that Plaintiff’s ability to tolerate stress was also fair although this depended on

Plaintiff’s emotional and physical status. (Id.)

In July 2006, state agency physician Dr. Bruce Goldsmith completed a psychiatric review

technique and mental RFC assessment of Plaintiff. (R. at 178–95.) Dr. Goldsmith diagnosed

Plaintiff with dysthymic disorder and mood disorder due to substance abuse, but did not find that

these conditions rose to the level of § 12.04 of the Commissioner’s Listing of Impairments, 20

C.F.R. Subpart P, Appendix 1. (R. at 185.) Dr. Goldsmith also diagnosed Plaintiff with

borderline intellectual functioning, but found that it did not satisfy the requirements of mental

retardation under the Listings. (R. at 186.) Finally, Dr. Goldsmith diagnosed Plaintiff with

2

 “A GAF score of fifty-one to sixty indicates moderate symptoms (e.g., flat affect and

circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational,

or school functioning (e.g., few friends, conflicts with peers or co-workers).” Collins v. Comm’r

of Soc. Sec., 357 F. App’x 663, 665 n.2 (6th Cir. 2009).

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somatoform disorder, not otherwise specified, which did not meet the Listing requirements. (R.

at 189.) Dr. Goldsmith opined that Plaintiff’s was mildly limited as to his activities of daily

living; moderately restricted in maintaining social functioning; and moderately limited in

maintaining concentration, persistence, or pace. (R. at 192.)

In assessing Plaintiff’s functional capacity, Dr. Goldsmith found Plaintiff capable of

understanding and remembering simple 1-2 step tasks, but opined that Plaintiff would have more

difficulty with complex tasks. (R. at 180.) According to Dr. Goldsmith, Plaintiff’s

“concentration and attention are adequate for simple and routine tasks.” (Id.) Dr. Goldsmith

concluded that Plaintiff was moderately limited in a variety of areas relevant to understanding

and memory; sustained concentration and persistence; social interaction; and adaptation. (R. at

178–79.) Dr. Goldsmith further concluded:

[Plaintiff] does report difficulty getting along with the general public, so he would

likely do better in a work environment with limited public interaction. He would be

able to relate to coworkers and supervisors on a very superficial level. His ability to

adapt to workplace stressors is somewhat reduced, especially given physical

symptoms. He should be able to adapt to a low stress work environment, without

strict quotas.

(Id.) State agency physician Dr. Karen Stailey-Steiger affirmed the decisions of Dr. Goldsmith. 

(R. at 207.)

Plaintiff saw Dr. Subbiah for follow up in October 2007 and reported anxiety problems. 

(R. at 217.) Dr. Subbiah noted that Plaintiff’s anxiety “is always bad for him.” (Id.) In

February 2008, Dr. Subbiah again noted that anxiety was a major problem for Plaintiff. (R. at

218.) Finally, in May 2008, Dr. Subbiah noted that Plaintiff experienced frequent mood swings

and opined that Plaintiff may have bipolar disorder. (R. at 220.) At this time, Dr. Subbiah

prescribed Ativan to help with Plaintiff’s anxiety. (R. at 221.)

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IV. EXPERT TESTIMONY

Olen Dodd testified as a vocational expert at the September 2008 hearing. Mr. Dodd

testified that Plaintiff’s past relevant work consisted of vehicle operation, including driving both

semi and dump trucks. (R. at 257.) Mr. Dodd indicated that a dump-truck driver is unskilled

work and a semi-truck driver is semiskilled work. (R. at 257.) Overall, Mr. Dodd characterized

Plaintiff’s work as “truck driver,” which he classified as medium and semiskilled work. (Id.)

The ALJ then asked Mr. Dodd to consider three different hypothetical people. First, Mr.

Dodd considered a person with Plaintiff’s background who could read and write below a sixth

grade level; perform medium level extertional activity; and had a mild reduction in

concentration, persistence, and pace due to fatigue and depression. (R. at 259.) Mr. Dodd

provided that such a person could perform Plaintiff’s past work as a truck driver. (Id.) Second,

the ALJ asked Mr. Dodd to consider an individual with the same characteristics as the first

hypothetical individual, except that fatigue and depression now caused a moderate reduction in

concentration. (Id.) Mr. Dodd concluded that such a person could still perform Plaintiff’s truckdriving activities, but suggested that the person be limited to the unskilled dump-truck driving

that Plaintiff performed. (R. at 259–60.) Finally, the ALJ proposed a third hypothetical person,

who retained all of the same characteristics as the first individual, except that depression and

fatigue caused this person to be severely restricted in concentration causing abandonment of

task. (R. at 260.) Mr. Dodd stated that such a person would not be capable of any of Plaintiff’s

past work nor any other work. (Id.) 

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V. ADMINISTRATIVE DECISION

The ALJ issued a decision on October 17, 2008. The ALJ determined that Plaintiff last

met the insured status requirements for the purposes of disability benefits on September 30,

2007. (R. at 15.) At the first step of the sequential evaluation process,3

 the ALJ found that

Plaintiff had not engaged in substantially gainful activity from the alleged onset date, February

26, 2004, through September 30, 2007. (R. at 16.) 

Next, the ALJ found that Plaintiff had severe impairments including “degenerative

arthritis; dysthymic disorder; mood disorder due to substance abuse; borderline intellectual

functioning; somatoform disorder, not otherwise specified; and substance addiction disorder.” 

(R. at 16.) At step three, the ALJ determined that Plaintiff did not have an impairment or

combination of impairments that met or equaled the level of severity described in 20 C.F.R. Part

404, Subpart P, Appendix 1. (R. at 20–22.) 

3

 Social Security Regulations require ALJs to resolve a disability claim through a

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). Although a

dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d

727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five

questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or

equal the criteria of an impairment set forth in the Commissioner’s Listing

of Impairments, 20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant's residual functional capacity, can the claimant

perform his or her past relevant work?

5. Considering the claimant's age, education, past work experience, and

residual functional capacity, can the claimant perform other work

available in the national economy?

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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At step four of the sequential process, the ALJ evaluated Plaintiff’s RFC. The ALJ found

Plaintiff physically capable of performing medium work with a number of physical restrictions. 

(R. at 22.) In terms of mental capacity, the ALJ concluded the following:

[Plaintiff] has about a 10th grade education and can read and write at less than the

6th grade level; he has pain in [his] back, wrists, arms, fingers, and feet; takes some

medication that causes drowsiness; has some depression and good days and bad

days; doesn’t sleep well and has fatigue from lack of sleeping; and any combination

of these would cause moderate reduction in concentration, persistence and pace. 

(Id.) In reaching this determination, the ALJ gave determinative weight to the medical opinions

of opinions of Drs. Sexton and Goldsmith and appeared to credit all of the mental limitations

these physicians assigned. (R. at 23–25.) The ALJ also gave some weight to the treatment

records of Drs. Subbiah and Kirkhart.4

 (R. at 25.)

The ALJ concluded that the RFC he assigned did not preclude Plaintiff from his previous

work as a dump-truck driver. (R. at 26.) The ALJ relied on the testimony of Mr. Dodd to reach

this conclusion, noting that his second hypothetical question to Mr. Dodd closely matched

Plaintiff’s RFC. (Id.) Based on his conclusion that Plaintiff could perform past relevant work,

the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act

during the relevant period. (Id.)

4

 The ALJ also gave some weight to Dr. Edward Dachowski, who he believed to be a

treating psychiatrist. (R. at 25.) Nevertheless, as Defendant notes, there is no medical evidence

from Dr. Dachowski in the record. (See R. at 205.) Defendant suggests, and the record appears

to indicate, that the ALJ considered some records pertaining to Plaintiff’s son, who shares the

same name. (R. at 45, 55–56.) Plaintiff, however, has not raised any contention of error as to

this issue. 

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VI. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.

1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the [Commissioner’s] decision, this Court defers to that finding ‘even if there

is substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). Finally, even if the Commissioner’s decision meets the substantial evidence standard,

“‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own

regulations and where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d

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742, 746 (6th Cir. 2007)).

VII. LEGAL ANALYSIS

Plaintiff maintains that the ALJ failed to adequately incorporate all of the relevant mental

limitations into his RFC analysis. The undersigned agrees. Specifically, neither the ALJ’s

evaluation of Plaintiff’s RFC or hypothetical questions to the vocational expert account for all of

Plaintiff’s mental limitations the ALJ accepted.5

 Furthermore, the undersigned concludes that

the ALJ’s errors were not harmless.

A. Residual Functional Capacity and Hypothetical Question

Residual functional capacity (“RFC”) is an assessment of the most a claimant can still do

despite his or her limitations. 20 CFR § 404.1545(a). A claimant’s RFC is used to assess

whether that claimant can perform past relevant work and whether the claimant can adjust to

other work. 20 C.F.R. § 404.1520(a)(4). In assessing a claimant’s RFC, the ALJ must consider

“all relevant evidence and findings regarding an individual’s work related limitations.” Cooper

v. Comm’r of Soc. Sec., 217 F. App’x 450, 452 (6th Cir. 2007); see also Thompson v. Astrue, No.

5

 As Defendant notes, Plaintiff did not explicitly raise any statement of error as to the

ALJ’s failure to incorporate all of Plaintiff’s mental limitations into the hypothetical questions. 

Under the circumstances of this case, however, this issue is essentially the same as Plaintiff’s

challenge to the ALJ’s RFC determination. As Plaintiff notes, the RFC is of crucial importance

because it is used to determine whether Plaintiff can perform past relevant work or adjust to any

other work. 20 C.F.R. § 404.1520(e). In this case, the ALJ used the RFC to determine whether

Plaintiff could perform past relevant work by asking a hypothetical question to the vocational

expert that mirrored the RFC. Cf. Burt v. Astrue, Civ. No. 1:09-CV-227, 2010 WL 3851733, at

*12 (E.D. Tenn. July 6, 2010) (“The purpose of hypothetical questions is to find out if jobs are

available in response to a question that matches the vocational characteristics of Plaintiff,

including her RFC.”) (Report & Recommendation later adopted). Finally, the ALJ relied on the

vocational expert’s answer to this hypothetical question to reach the ultimate decision that, given

the assigned RFC, Plaintiff was not disabled. Given these circumstances, to the extent the

hypothetical question and RFC failed to account for Plaintiff’s mental impairments, neither

serves as valid support for the ALJ’s disability decision.

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3:10–cv–01688, 2011 WL 3298904, at *12 (N.D. Ohio Aug. 2, 2011) (“Clearly, significant

limitations in a claimant’s mental work capabilities must be accurately accounted for if an RFC

finding is to be supported by the record as a whole.”).

An RFC includes an assessment of a claimant’s mental abilities and limitations. 20

C.F.R. § 404.1545(c). Notably, limitation categories within the “paragraph B criteria” are not

equivalent to a mental RFC assessment.6 SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).

Instead, a mental RFC “requires a more detailed assessment by itemizing various functions

contained in the broad categories found in paragraph[] B.” Id. Examples of limitations that may

reduce a claimant’s ability to work include “limitations in understanding, remembering, and

carrying out instructions, and in responding appropriately to supervision, co-workers, and work

pressures in a work setting . . . .” 20 C.F.R. § 404.1545(c).

Relatedly, in complex cases, an ALJ may choose to rely on vocational expert testimony

“given the [vocational expert’s] ability to tailor [his or] her finding to an individual’s particular

residual functional capacity.” Beinlich v. Comm’r of Soc. Sec., 345 F. App’x 163, 168 (6th Cir.

2009) (internal quotations omitted). In such situations, the ALJ will ask the vocational expert

hypothetical questions reflecting potential RFC determinations. For vocational expert testimony

6

 The Sixth Circuit has provided:

There are four areas of functional loss which have been found especially relevant to

the ability to work. They correspond to the paragraph B criteria of the various mental

disorders listed in 20 § C.F.R. Pt. 404, Subpt. P, App. 1, and are known as the “B”

criteria. The four areas are: activities of daily living; social functioning;

concentration, persistence and pace; and deterioration or decompensation in work or

work-like settings.

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1993).

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to serve as substantial evidence in support of the ALJ’s decision, however, a hypothetical

question “must accurately portray a claimant’s physical and mental impairments.” Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). Consequently, various federal courts,

including the Court of Appeals for the Sixth Circuit, have found hypothetical questions

inappropriate when such inquiries do not fully account for a plaintiff’s mental limitations. See,

e.g., id. (hypothetical question limiting a person to simple, repetitive tasks, in a non-public

setting, did not account for psychological consultant’s conclusion that limited the plaintiff to

“[two-hour] segments over an eight-hour day where speed was not critical”); Ball v. Comm’r of

Soc. Sec., No. 1:09-cv-684, 2011 WL 765978, at *4 (S.D. Ohio Feb. 25, 2011) (finding that an

ALJ’s hypothetical question limiting a plaintiff to low stress jobs; simple, routine, repetitive

tasks; and no fast-paced production requirements, “incorporated some but not all of the moderate

limitations the ALJ found to exist”); Renn v. Comm’r of Soc. Sec., No. 1:09-CV-319, 2010 WL

3365944, at *6 (S.D. Ohio Aug. 24, 2010) (holding that an RFC limiting Plaintiff to simple,

routine repetitive tasks; occasional interaction with public; and only routine changes in work

setting, did not properly account for the plaintiff’s moderate deficits in memory, attention, and

concentration).

In this case, the ALJ relied on the vocational expert’s testimony regarding the second

hypothetical question to conclude that Plaintiff could perform his past work as a dump-truck

driver. The second hypothetical question mirrored the RFC the ALJ assigned in his written

opinion. Within his RFC and this hypothetical question, the ALJ included limitations

concerning Plaintiff’s ability to read and write as well as a moderate reduction in concentration,

persistence, and pace. The ALJ, however, did not include any additional mental limitations. The

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ALJ’s conclusions regarding Plaintiff’s concentration, persistence, and pace appear to be based

on Dr. Goldsmith’s B criteria conclusions. (See R. at 192.)

In his decision, however, the ALJ apparently accepted different, and more detailed,

mental limitations. For example, the ALJ’s decision echoed Dr. Goldsmith opinions that

“[Plaintiff] should be able to understand and remember simple 1-2 step tasks, but may have more

difficulty with complex tasks. He was able to perform serial 3 tasks. His concentration and

attention were adequate for simple and routine tasks.” (See R. at 23, 180.) The decision also

suggests that the ALJ agreed with a series of moderate restrictions Dr. Goldsmith assigned in his

mental RFC assessment. (R. at 24, 178–79.) Furthermore, the ALJ’s decision repeated various

other mental-limitation opinions of Dr. Goldsmith. For instances, the ALJ made the following

assessments:

[Plaintiff] does report difficulty getting along with the general public, so he would

likely do better in a work environment with limited public interaction. He would be

able to relate to co-workers and supervisors on a very superficial level. His ability

to adapt to workplace stressors is somewhat reduced, especially given physical

symptoms. He should be able to adapt to a low stress work environment, without

strict quotas.

(R. at 23–24.) The ALJ gave Dr. Goldsmith’s opinions determinative weight and provided no

indication that he disagreed with any aspect of Dr. Goldsmith’s determinations. (R. at 25.)

Ultimately, the ALJ’s RFC and second hypothetical question failed to account for the

various mental limitations the ALJ accepted. The RFC and hypothetical question contain

moderate restrictions to concentration, persistence, and pace. A number of the limitations the

ALJ accepted, however, fall within different mental-ability categories such as understanding and

memory, social interaction, and adaptation. (See R. at 178–79.) Because the RFC and

hypothetical question upon which the ALJ relied do not accurately account for all of Plaintiff’s

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mental impairments, substantial evidence does not support the ALJ’s determination that Plaintiff

can perform his past relevant work. 

B. Harmless Error

To the extent Defendant maintains that the ALJ’s error in this case was harmless, the

undersigned disagrees. As the Sixth Circuit has highlighted, the Court generally “reviews

decisions of administrative agencies for harmless error.” Rabbers v. Comm’r Soc. Sec. Admin.,

582 F.3d 647, 654 (6th Cir. 2009). “Accordingly, if an agency has failed to adhere to its own

procedures, we will not remand for further administrative proceedings unless the claimant has

been prejudiced on the merits or deprived of substantial rights because of the agency’s

procedural lapses.” Id. Furthermore, the Sixth Circuit has suggested that “where remand would

be an idle and useless formality, courts are not required to convert judicial review of agency

action into a ping-pong game.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir.

2004) (internal quotations omitted).

In this case, the ALJ’s error was not harmless. As the Sixth Circuit implied in Ealy, for

the ALJ to rely on vocational expert testimony in his decision, he must fully inform the

vocational expert of the relevant limitations. See 594 F.3d at 516 (“[T]he [hypothetical] question

must accurately portray a claimant’s physical and mental impairments.”). Failure to accurately

portray a claimant’s impairments results in a lack of substantial evidence. Id. Here, the ALJ

relied on vocational expert testimony to conclude that Plaintiff could perform his past relevant

work, and, therefore, was not disabled. Nevertheless, the hypothetical question and RFC upon

which the vocational expert based his testimony did not accurately portray Plaintiff’s accepted

limitations. These circumstances cast considerable doubt on the ALJ’s ultimate conclusion

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regarding Plaintiff’s disability.

Defendant maintains that even crediting the various mental limitations omitted from the

RFC and hypothetical question, it is still apparent that Plaintiff can perform his past relevant

work. In making this assertion Defendant contends that Plaintiff’s work-related testimony, as

well as the definition of “unskilled work” within the regulations, indicate that Plaintiff could

perform his past unskilled work as a dump-truck driver. See 20 C.F.R. § 404.1568 (“Unskilled

work is work which needs little or no judgment to do simple duties that can be learned on the job

in a short period of time.”). This contention, however, is highly speculative. As detailed above,

Dr. Goldsmith found a number of mental limitations, influencing a variety of functional

categories, that the ALJ accepted, but failed to include in his RFC or hypothetical question. 

Adding these limitations to those already present within the RFC results in an array of factors

that the Commissioner must consider to determine whether Plaintiff can still perform his past

relevant work. Considering these factors and the current record evidence, it is not readily

apparent that Plaintiff could perform his past relevant work. Rather, the circumstances suggest

that additional vocational evidence, or at the very least further explanation, is required for such a

determination. Even noting the lenient definition of unskilled work, the undersigned cannot

conclude that remand would be an idle and useless formality in this case.

Finally, the undersigned finds that remand, rather than an award of benefits, is

appropriate. “The Court can reverse a decision of the Commissioner and immediately award

benefits only if all essential factual issues have been resolved and the record adequately

establishes a plaintiff's entitlement to benefits.” Kennedy v. Astrue, 247 F. App’x 761, 768 (6th

Cir. 2007). Here, as essential factual issues remain, the Court finds remand for further

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consideration proper.

VIII. CONCLUSION

Based on the foregoing, it is RECOMMENDED that the Court REMAND this case for

further consideration consistent with this Report and Recommendation.

IX. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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Date: January 9, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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