IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Christopher A. McLaughlin, :

Plaintiff, :

v. : Case No. 2:11-cv-454

Michael J. Astrue, : JUDGE JAMES L. GRAHAM

Commissioner of Social Security, Magistrate Judge Kemp

 

Defendant. :

OPINION AND ORDER

On February 4, 2012, the Magistrate Judge issued a Report

and Recommendation in this social security case recommending that

the plaintiff’s statement of errors be sustained to the extent

that this case be remanded to the Commissioner pursuant to 42

U.S.C. §405(g), sentence four. On February 28, 2012, the

Commissioner filed timely objections to that recommendation. 

Plaintiff responded on March 16, 2012. For the following

reasons, the objections will be overruled.

I.

When objections are received to a Magistrate Judge's Report

and Recommendation on a dispositive matter, the assigned District

Judge “shall make a de novo determination ... of any portion of

the Magistrate Judge's disposition to which specific written

objection has been made ....“ Fed.R.Civ.P. 72(b). After review,

the District Judge “may accept, reject, or modify the recommended

decision, receive further evidence, or recommit the matter to the

Magistrate Judge with instructions.” Id.; see also 28 U.S.C. §

636(b)(1)(B). General objections are insufficient to preserve

any issues for review “[a] general objection to the entirety of

the Magistrate's report has the same effects as would a failure

to object.” Howard v. Secretary of Health and Human Servs., 932

F.2d 505, 509 (6th Cir.1991).

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II.

Plaintiff applied for disability benefits at a fairly young

age. He was only 28 at the time of the administrative hearing,

which was held in 2010. He claimed that psychological problems

prevented him from working, and testified that those problems had

cost him jobs in the past. Medical records showed a profound

history of substance abuse as well as a history of treatment for

mental health problems beginning in plaintiff’s teenage years. 

He was variously diagnosed as suffering from depression, anger,

and a paranoid personality disorder, and medical notes recorded

symptoms such as hallucinations, hearing voices, thoughts of

suicide, oppositional behavior, inattention, impulsivity, and

disturbed reality contact. One consultative examiner did not

think plaintiff could work at all; a state agency reviewer

reached the opposite conclusion, noting that the consultative

examiner did not, in the reviewer’s opinion, account for the fact

that many of plaintiff’s symptoms could be attributed to

substance abuse and that they decreased in severity once he was

sober and taking medication.

 The Administrative Law Judge found that plaintiff suffered

from personality disorder with paranoia, borderline and antisocial features, substance abuse disorder currently in early

remission, post traumatic stress disorder, and depression, but

concluded that he could still handle some low stress work without

high production standards if he refrained from substance abuse. 

Because a vocational expert testified that someone with those

limitations could work as a general laborer, which was a job

plaintiff had performed in the past, the Administrative Law Judge

denied the claim for benefits. 

The Report and Recommendation found this decision was

plagued by inconsistencies in its reasoning process, noting that

the key finding about plaintiff’s ability to interact with others

was apparently misstated by the ALJ (he characterized it as

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marked “ability” to relate to others, when he apparently meant to

find that plaintiff had a marked “inability” in that area), and

that it was difficult to tell exactly how the ALJ reached his

conclusion regarding plaintiff’s residual functional capacity or

what he meant when he posed the key hypothetical question to the

vocational expert. The Report and Recommendation also identified

problems with the ALJ’s approach to plaintiff’s substance abuse

disorder and the effect it had on his ability to work, noting

that the administrative decision often mentioned substance abuse

as a factor but did not follow the Commissioner’s own regulations

about how substance abuse is to be evaluated in terms of whether

its effects are disabling, and whether, if those effects are

eliminated, a claimant would still be disabled taking other

factors into account. Those inconsistencies were exacerbated by

the fact that the vocational expert’s testimony was couched in

terms of what might be “possible” in the workplace with respect

to avoiding interaction with others, and it was not clear how

that testimony lined up with either the ALJ’s or the state agency

reviewer’s evaluation of plaintiff’s difficulties in that area. 

The Report and Recommendation concluded by stating that

[a] remand will assist in resolving these conflicts and

ambiguities and produce a decision much more

susceptible to meaningful judicial review. Cf. McHugh

v. Astrue, 2011 WL 6130824, *9 (S.D. Ohio Nov. 15,

2011), adopted and affirmed 2011 WL 6122758 (S.D.Ohio

Dec. 8, 2011)(“‘“[W]here the ALJ's decision ... is so

poorly articulated as to prevent meaningful review, the

case must be remanded.’”), quoting Steele v. Barnhart,

290 F.3d 936, 940 (7th Cir. 2002).

Report and Recommendation, ECF No. 13, at 10-11.

III.

The Commissioner has objected to the recommendation that the

case be remanded for a more clearly reasoned and articulated

decision. While acknowledging that the Report and Recommendation

“reasonably points out that the ALJ’s decision was less-than3

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perfect,” the Commissioner argues that “perfection is not the

relevant standard.” Objections, ECF No. 14, at 1. The

Commissioner asserts that plaintiff’s limitations were either

accurately conveyed to the vocational expert, or overstated, and

that either way, the vocational expert testified that plaintiff

could return to his past employment. The Commissioner also

contends that the ALJ did not actually consider plaintiff’s drug

use as a factor in deciding what plaintiff’s residual functional

capacity actually was, but only in finding his testimony to be

less than credible. Consequently, the Commissioner concludes

that the ALJ’s decision was based on substantial evidence and

should be affirmed. In response, plaintiff argues that the ALJ

did make a finding about the ability to interact with others

which was at odds both with the residual functional capacity

determined by Dr. Finnerty, the state agency reviewer, and with

the hypothetical question posed to the vocational expert, and

that this error alone requires a remand.

IV.

Focusing on this last issue first, the Court agrees that the

way in which the ALJ both phrased his questions to the vocational

expert and articulated his findings about plaintiff’s ability to

interact with others creates very serious difficulties for the

Court in understanding the record. The precise question posed to

the vocational expert asked him to assume the limitations

described in Exhibit 8F, which is Dr. Finnerty’s report. Those

limitations included “moderate” restrictions in “[t]he ability to

work in coordination with or proximity to others without being

distracted by them,” to “interact appropriately with the general

public,” to “accept instructions and respond appropriately to

criticism from supervisors,” to “get along with coworkers or

peers without distracting them or exhibiting behavioral

extremes,” and “to maintain socially appropriate behavior ....” 

(Tr. 291-92). By contrast, assuming that the ALJ’s use of the

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word “ability” was incorrect and that in his finding he meant

“inability,” the ALJ found as a fact that plaintiff had a “marked

[in]ability to work and deal with people secondary to his

personality disorder as complicated historically by the abuse of

drugs.” (Tr. 45). Because all of the categories quoted from Dr.

Finnerty’s report fall under the general heading of how well a

claimant is able to deal with people (co-workers, supervisors,

and the general public), it may be that the ALJ disagreed with

Dr. Finnerty as to the severity of plaintiff’s ability to

function in as many as five of the areas reflected in Exhibit 8F. 

Nevertheless, the vocational expert was not asked any questions

about someone with marked, as opposed to moderate, limitations in

those areas. Even then, he hesitated in responding to the

hypothetical question, admitting that he did not know enough

about the specific laborer job which plaintiff had performed to

evaluate whether plaintiff could still do that particular job. 

Ultimately, the vocational expert testified that in “some”

laborer positions - and he did not specify how many, or what they

were - a worker was “pretty much out on [his] own,” although such

positions “vary” in how closely one must work with others. 

The Commissioner’s position is that in order for plaintiff

to be able to do his prior job, he need only be able to perform

it as it is generally performed in the economy rather than in the

exact way his job functioned. That is true. But, had the

vocational expert been told what the ALJ’s view of plaintiff’s

ability to get along with others was - and a marked inability to

do that is much more pronounced than a moderate inability,

according to the Listing of Impairments, Section 12.00, which

defines a marked impairment as one which “interfere[s] seriously

with your ability to function independently, appropriately,

effectively, and on a sustained basis” - he might well have given

different testimony. There is no way to know, because he was not

asked that question. The Court does not believe his general

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response that in some laborer positions, one is “pretty much out

on your own,” is the equivalent of a response that no matter how

seriously limited someone is in his ability to deal appropriately

with others in the workplace - be it supervisors, co-workers,

members of the public, or all three - there are still laborer

jobs that person can do. The record simply does not support the

determination made by the ALJ, and when that is so, remand is

required. This conclusion makes it unnecessary to reach the

other grounds set forth in the Report and Recommendation, but the

Court generally concurs that the underlying decision is not just

“less-than-perfect,” as the Commissioner contends, but

sufficiently difficult to understand that the Court’s ability to

review the decision will be enhanced greatly by a more carefully

crafted opinion which clearly delineates, among other things,

what role plaintiff’s history of substance abuse actually played

in the ALJ’s decision-making process. 

 VI.

For all of these reasons, and after a de novo review of

those portions of the Report and Recommendation to which

plaintiff objected, the Court OVERRULES the objections (#14) and

ADOPTS AND AFFIRMS the Report and Recommendation (#13). The

plaintiff’s statement of specific errors (#10) is SUSTAINED and

to the extent that this case is REMANDED to the Commissioner for

further proceedings pursuant to 42 U.S.C. §405(g), sentence four.

IT IS SO ORDERED.

Date: April 30, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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