IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TERESA L. BALDWIN, 

 Plaintiff, 

 Civil Action 2:12-cv-298 

 v. Judge Michael H. Watson 

 Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

REPORT AND RECOMMENDATION 

 Plaintiff brings this action under 42 U.S.C. § 405(g) for review of a final decision of the 

Commissioner of Social Security (“Commissioner”) denying her application for social security 

disability insurance benefits. This matter is before the United States Magistrate Judge for a 

Report and Recommendation on Plaintiff’s Amended Statement of Errors, the Commissioner’s 

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

administrative record. (ECF Nos. 20, 15, 21, 8.) For the reasons that follow, it is 

RECOMMENDED that the decision of the Commissioner be REVERSED and that this action 

be REMANDED to the Commissioner and the ALJ under Sentence Four of § 405(g). 

I. BACKGROUND

 Plaintiff filed her application for benefits on June 2, 2008, alleging that she has been 

disabled since April 6, 2007, at age 52. (R. at 124.) Plaintiff alleges disability as a result of 

bipolar disorder. (R. at 146.) Plaintiff’s application was denied initially and upon 

reconsideration. (R. at 1-4, 49-52.) Plaintiff sought a de novo hearing before an administrative 

law judge (“ALJ”). (R. at 50-60.) 

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 ALJ Timothy G. Keller held a hearing on August 12, 2010, at which Plaintiff, represented 

by counsel, appeared and testified. (R. at 26-46.) William Keiger, a Vocational Expert, also 

appeared and testified at the hearing. (R. at 38-46.) On September 24, 2010, the ALJ issued a 

decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. 

(R. at 8-19.) On February 8, 2012, the Appeals Council denied Plaintiff’s request for review and 

adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1-4.) Plaintiff thereafter 

timely commenced the instant action. 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony 

 At the administrative hearing, Plaintiff testified that she last worked on April 6, 2007. 

(R. at 28.) She testified that she was collecting unemployment benefits from 2007 through May 

2010. Id. According to her testimony, Plaintiff made herself available for work and looked for a 

job during that period. (R. at 29.) She stated that if she would have received a job offer during 

that period, she would have accepted it. 

Nevertheless, Plaintiff stated that she would have “a lot of trouble” if she were to go back 

to work. Id. She stated that she could not keep up the pace, because she can no longer function 

and think as she used to. (R. at 30.) She testified that she experiences difficulty concentrating. 

(R. at 32.) She stated that she has difficulty picking out groceries and adding up the cost of 

items. (R. at 31.) She testified that she gets lost when she leaves the house, and that sometimes 

she experiences episodes in which she blacks out. (R. at 32.) 

 Plaintiff testified that she has a high school diploma. (R. at 33.) She indicated during the 

hearing that she took special education classes in high school. The ALJ pointed out that 

Plaintiff’s final class rank was 66 out of 88 students, and that her school records showed that she 

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took English, spelling, science, math and social studies. Id. Plaintiff testified that a “special 

teacher” would come into her class and teach the courses. (R. at 34.) She subsequently clarified 

that she received “special help” from teachers during school hours. Id. 

 Plaintiff testified that she sees a mental health professional who prescribes medication for 

her condition. (R. at 30.) She also indicated that she treats with a therapist on a bi-weekly basis. 

She stated that she had a six-month period after her alleged onset-date in which she possessed the 

ability to think clearly. (R. at 36.) She stated that her doctor told her that her medication 

contributed to her lack of clarity in thought. (R. at 37.) 

B. Vocational Expert Testimony

 William Kieger testified as the Vocational Expert (“VE”) at the administrative hearing. 

(R. at 38-46.) The ALJ asked the VE to assume that an individual suffered no exertional 

limitations and that she was able to understand, remember and carry out simple tasks and 

instructions; maintain concentration and attention for two-hour segments in an eight-hour work 

day; respond appropriately to supervisors and coworkers in a task-oriented setting with 

infrequent and casual contact with others; and adapt to simple changes and avoid hazards. (R. at 

38.) Under those circumstances, the VE testified that such an individual could perform all of 

Plaintiff’s previous work experience, which includes positions as a power drill operator, press 

operator, and warehouseman. 

 On cross-examination, Plaintiff’s counsel asked the VE to further assume that the 

hypothetical individual required explanations in very simple, concrete terms, as well as repeated 

demonstrations as to tasks. (R. at 39.) The VE testified that such a restriction would not prevent 

the individual from competitive work so long as the repeated demonstrations were part of the 

new-hire process. If, on the other hand, the person required repeated demonstrations beyond 

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starting and learning the new job, she would require an accommodation. He further testified that 

if the individual were off-task twenty-five percent of the time, she would be precluded from 

competitive employment. (R. at 44.) 

III. MEDICAL RECORDS 

A. Central Ohio Mental Health Center 

The record contains treatment notes from Central Ohio Mental Health Center from as 

early as 2003. The record indicates that Plaintiff saw various professionals at Central Ohio 

Mental Health Center who prescribed medication to control her mental health condition. On July 

9, 2003, it was noted that Plaintiff suffers from auditory and visual hallucinations, and that she 

was hospitalized twelve years prior. (R. at 268.) She was diagnosed with a psychotic disorder 

not otherwise specified, and potential paranoid schizophrenia. Id. 

On September 4, 2007, Plaintiff presented requesting a note stating that she could return 

to work. (R. at 244.) The mental-health professional who evaluated Plaintiff noted that she 

displayed less difficulty adjusting her body position than she had during previous visits; but that 

she displayed more involuntary movements such as tongue-thrusting and jaw rotation. The 

professional prescribed antipsychotic medication. 

On October 30, 2007, Plaintiff reported that she was doing “so good – real good.” (R. at 

238.) She reported feeling more alert and coherent. Her affect was noted as “objectively a bit 

flat” and “constricted.” Id. Her insight and judgment were noted to be “fair at best.” Id. 

 On December 20, 2007, Plaintiff reported that her new medication was working well. (R. 

at 242.) She reported that she doesn’t “feel like [she’s] being invaded by spiritual things.” Id.

She was seen again on March 20, 2008, and reported that she was “doing fine.” (R. at 233.) The 

professional who evaluated her noted her mood as “fair.” 

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 On June 12, 2008, Plaintiff again went to Central Ohio Mental Health Center. (R. at 

334.) She reported a minor increase in energy with a recent change in medication. She indicated 

that she had not been seeing a therapist, but that she would accept a referral. On August 5, 2008, 

she reported a minor increase in energy and sense of well-being. (R. at 329.) On June 18, 2008, 

she reported struggling with not having been able to work. (R. at 333.) 

 The record indicates that on March 25, 2009 Plaintiff started to see Deb Marshall, 

Certified Nurse Practioner (“CNP”) at Central Ohio Mental Health. (R. at 373.) On March 25, 

2009, Plaintiff reported her mood as stable. CNP Marshall noted that Plaintiff appeared “a bit 

disheveled,” and that she had “a bit of an odd, blank stare.” Id. 

 Plaintiff saw Nurse Marshall again on May 20, 2009. (R. at 371.) She stated that one of 

her medications was causing her to have vivid dreams. She indicated that she did not want to 

continue taking that medication. CNP Marshall noted that Plaintiff had an “[o]dd blank stare.” 

Id. 

Plaintiff again reported to CNP Marshall on August 5, 2009 that she was doing well, and 

denied continued problems with sleep or mood. (R. at 369.) She next visited CNP Marshall on 

October 28, 2009. (R. at 367.) Plaintiff stated that she felt “pretty good,” and reported her mood 

as stable. CNP Marshall noted that Plaintiff’s thought content appeared somewhat impoverished. 

She noted her thought process as mildly slow with delayed responses. 

 At her January 21, 2010 appointment with CNP Marshall, Plaintiff denied feeling 

depressed or anxious, and reported that she had been doing well. (R. at 365.) She reported low 

energy and stated that she sleeps 8-10 hours per night and then naps for one to two hours per day. 

CNP Marshall noted Plaintiff’s thought process as “mildly slowed” with a lack of spontaneous 

thought. Id. 

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On March 25, 2010, Plaintiff reported that she began to feel “funny” earlier that morning. 

(R. at 363.) She reported feeling “mentally clouded” and experiencing problems with her 

memory. She indicted that she had been experiencing instances in which she cannot account for 

prior periods of time. CNP Marshall recommended that she go to the emergency room for 

evaluation. Id. 

B. Marion General Hospital 

Plaintiff presented to the emergency room on August 5, 2007, complaining that she feels 

“like [she is] going to burst into flames.” (R. at 247.) She reported hearing voices, receiving 

various messages from the television and radio, and feeling paranoid. Plaintiff denied suicidal or 

homicidal thoughts. Doctors noted that Plaintiff has a history of schizoaffective disorder. (R. at 

253.) Plaintiff reported that professionals at Central Ohio Mental Health had recently changed 

her medication. She also admitted to using “street drugs.” Id. The attending physician 

described Plaintiff as “acutely psychotic, frightened, disorganized, [and] emotionally labile.” Id. 

She was diagnosed with schizoaffective disorder, substance abuse disorder, and mixed character 

disorder. Doctors assigned her a GAF score of 15.1

 She was admitted and underwent individual 

and group therapy, milieu management, and occupational therapy. (R. at 255.) Plaintiff 

remained in the hospital until her August 13, 2007 discharge. Id. 

C. Deb Marshall, CNP 

 

1 The GAF scale is used to report a clinician’s judgment of an individual’s overall level of 

functioning. Clinicians select a specific GAF score within the ten-point range by evaluating 

whether the individual is functioning at the higher or lower end of the range. See American 

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 33–34 (American 

Psychiatric Association, 4th ed. text rev. 2000) (DSM-IV-TR). A GAF score of 15 is indicative 

of some danger of hurting one’s self or others (e.g., suicide attempts without clear expectation of 

death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal 

hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or 

mute). DSM-IV-TR at 34.

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On April 2, 2010, Deb Marshall, CNP prepared a statement concerning Plaintiff’s mental 

impairments. (R. at 360.) Ms. Marshall opined that Plaintiff suffers marked impairment in her 

ability to maintain attention and concentration for two hour time-periods. She indicated that 

Plaintiff suffers from poor attention and focus, that she is easily distracted, and that she has 

“slowed cognition.” Id. Ms. Marshall further opined that Plaintiff suffers marked impairment in 

her ability to interact appropriately with others. (R. at 361.) She indicated that Plaintiff becomes 

“highly anxious around strangers,” and that she “tends to withdraw as a result.” Id. Ms. 

Marshall opined marked impairment in Plaintiff’s ability to withstand the stresses and pressures 

of routine, simple, unskilled work. She indicated that although Plaintiff’s psychiatric state is 

stable with a stable environment, she is likely to decompensate with increased stress and 

pressure. She described Plaintiff’s condition as “fragile.” Id. Ms. Marshall further opined that 

Plaintiff suffers marked impairment in her ability to make judgments commensurate with the 

functions of unskilled work, such as the ability to make simple, work-related decisions. Id. She 

reported that Plaintiff suffers from an “impaired, superficial and slowed throught process,” and 

that her thought content is impoverished. Id. Ms. Marshall concluded that Plaintiff’s psychiatric 

state would prevent her from sustaining full-time as well as part-time employment. Id. 

D. Richard Litwin, Ph.D. 

On January 10, 2008, Dr. Richard Litwin examined Plaintiff on behalf of the state 

agency. (R. at 284-91.) Plaintiff reported that she was diagnosed with a psychotic disorder in 

2008. She indicated that she experiences “racing thoughts, visual hallucinations[, and] 

premonitions of things that will happen in the future.” Id. 

 Upon administering the Wechsler Adult Intelligence Test-III, Dr. Litwin noted that 

Plaintiff’s verbal IQ placed her in the range of mild mental retardation; her performance IQ 

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placed her in the borderline range; and her full scale IQ placed her in the range of mild mental 

retardation. (R. at 285.) Plaintiff scored at the fifth-grade level in word reading, spelling, and 

reading rate. Id. She scored at the fourth-grade level in calculations and reading accuracy. She 

scored at the third-grade level in reading comprehension. 

 Dr. Litwin diagnosed Plaintiff with a psychotic disorder not otherwise specified and mild 

mental retardation, and assigned her a GAF score of 68.2 He opined that Plaintiff is best suited 

for low-skilled, trade-oriented work involving hands-on learning. (R. at 287.) He further 

indicated that Plaintiff will work better with objects or tools than people, and that she should not 

be expected to assume much responsibility or decision making. In addition, Dr. Litwin opined 

that Plaintiff “would need to avoid jobs that involve much reading, writing or working with 

figures or operating a cash register.” Id. He further indicated that “[s]he will need directions 

explained in very simple[,] concrete terms coupled with demonstration and repetition.” Id. 

E. Marva Dawkins, Ph.D. 

On July 18, 2008, Dr. Dawkins reviewed Plaintiff’s records on behalf of the state agency. 

(R. at 299-312.) She noted that Plaintiff alleges that she suffers from bipolar disorder, but that 

she had reported an increase in energy on June 18, 2008. (R. at 311.) She opined that Plaintiff 

suffers moderate limitations in her ability to understand and remember detailed instructions; 

carry out detailed instructions; complete a normal workday and workweek without interruptions 

from psychologically based symptoms and to perform at a consistent pace without an 

unreasonable number and length of rest periods; get along with coworkers or peers; and respond 

 

2 A GAF score of 68 is indicative of some or mild symptoms or some difficulty in social, 

occupational, or school functioning (e.g., occasional truancy, or theft within the household), but 

generally functioning pretty well, with the ability to have some meaningful interpersonal 

relationships. DSM-IV-TR at 34.

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appropriately to changes in the work setting. (R. at 295-96.) Other than those restrictions, Dr. 

Dawkins concluded that Plaintiff is not significantly limited in her ability to function. 

Dr. Dawkin found Dr. Litwin’s opinion to be fairly consistent with other evidence in the 

file. Dr. Dawkin accorded weight to Dr. Litwin’s determination that Plaintiff is able to perform 

low-skilled work that does not involve much contact with others, reading or writing, or working 

with figures or operating a cash register. Id. In another section of her assessment, Dr. Dawkin 

noted that Plaintiff “retains the mental capacity to perform and sustain simple routine work[-

]related tasks and activities in a work setting where she would have minimal contact with 

supervisors, coworkers and the general public.” (R. at 297.) 

IV. THE ADMINISTRATIVE DECISION 

 On September 24, 2010, the ALJ issued his decision. (R. at 8-19.) At step one of the 

sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged in substantially 

gainful activity since her alleged onset date of April 6, 2007. (R. at 10.) The ALJ found that 

Plaintiff suffered from the severe mental impairment of bipolar disorder. Id. He further found 

that Plaintiff did not have an impairment or combination of impairments that met or medically 

 

1

 Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential 

evaluation of the evidence. See 20 C.F.R. §416.920(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. §416.920(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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equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. 

(R. at 12.) At step four of the sequential process, the ALJ evaluated Plaintiff’s residual 

functional capacity (“RFC”). The ALJ found: 

The claimant has the residual functional capacity to perform work at all levels of 

physical activity, with the exception that she is limited to understanding, 

remembering, and carrying out simple tasks and instructions for two hours periods 

[sic] of time throughout an eight hour work day, which involves only casual and 

infrequent contact with supervisors and coworkers in a task oriented setting. This 

residual functional capacity is consistent with the opinions of Dr. Litwin and Dr. 

Dawkins, and it is well-supported by the record as a whole. 

(R. at 14.) In reaching this determination, the ALJ found the opinions of Drs. Litwin and 

Dawkins “consistent with and well-supported by the objective medical evidence,” and he 

accepted them “as an accurate representation of the claimant’s status.” Id. 

 Relying on the VE’s testimony, the ALJ determined that Plaintiff could perform her past 

relevant work experience as a drill operator, press operator, and warehouse worker. (R. at 18.) 

Accordingly, the ALJ concluded that Plaintiff is not disabled within the meaning of the Social 

Security Act. (R. at 20.)

V. 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. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 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 

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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 & Hum. 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 

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

evidence supports the ALJ’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 ALJ’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 742, 746 (6th 

Cir. 2007)). 

VI. LEGAL ANALYSIS 

 In her Statement of Errors, Plaintiff raises numerous challenges to the ALJ’s decision. 

(Statement of Errors, ECF No. 20.) Among the challenges she raises, Plaintiff contends that the 

ALJ failed to incorporate all of the relevant mental limitations into his RFC analysis. Id. at 19-

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20. The Undersigned agrees, and concludes that the ALJ committed reversible error in failing to 

incorporate all of the mental limitations that he accepted into his RFC.3 

A. Residual Functional Capacity 

 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. 

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. 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). 

 

3 This finding obviates the need for in-depth analysis of Plaintiff’s remaining assignments of 

error. The Undersigned need not, and does not, resolve the alternative bases that Plaintiff asserts 

support reversal and remand. 

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 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 

to serve as substantial evidence in support of the ALJ’s decision, 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 they fail to 

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). 

 Here, the ALJ relied on the vocational expert’s testimony to conclude that Plaintiff can 

perform her past work as a power drill operator, press operator, and warehouseman. (R. at 18.) 

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The hypothetical question the ALJ presented to the VE mirrored the RFC the ALJ assigned in his 

written opinion. The ALJ included in his RFC and the hypothetical question limitations 

concerning Plaintiff’s ability to understand, remember, and carryout simple tasks and 

instructions for two-hour periods of time, as well as her ability to engage in more than casual or 

infrequent contact with supervisors and coworkers. (R. at 14.) The ALJ also included 

restrictions based on Plaintiff’s ability to work in a task-oriented setting. Id. The ALJ failed to 

include in the RFC assessment, however, and consequently in his hypothetical questions to the 

VE, limitations related to Plaintiff’s ability to read, write, work with figures, and operate a cash 

register, as well as her need for very simple and concrete directions coupled with repeated 

demonstration and repetition. Id. These restrictions were included in Dr. Litwin’s RFC 

assessment, which the ALJ accepted as “consistent with and well-supported by the objective 

medical evidence and . . . as an accurate representation of [Plaintiff’s] status.” (R. at 14.) With 

the exception of the need for repeated demonstrations, these restrictions were also noted in Dr. 

Dawkins assessment, which the ALJ likewise accepted.4

 Id. Although the ALJ accepted both of 

these opinions, he failed to include in his RFC all of the limitations contained within them. Nor 

did he provide a reason for omitting these restrictions. Accordingly, the Undersigned cannot 

conclude that the ALJ’s opinion is supported by substantial weight because his RFC does not 

account for all the limitations that he accepted. 

 Defendant’s argument to the contrary is not well taken. Defendant posits that Plaintiff 

could perform her past relevant work even if all the relevant restrictions were included in the 

RFC. (Op. 13, ECF No. 15.) To support her position, she points to a function report that 

 

4 It is unclear from the record why Dr. Dawkin adopted all of Dr. Litwin’s restrictions except the 

need for repeated demonstrations. Dr. Dawkin does not mention the restriction regarding 

repeated demonstrations, which suggests that he may have overlooked it. (R. at 297.) 

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Plaintiff completed regarding her position as a warehouseman. Id. In that report, Plaintiff 

indicated that her warehouseman position required neither technical knowledge and skills, nor 

“writing, completing reports, or perform[ing] duties like this.” Id. (citing R. at 147.) According 

to Defendant, “Plaintiff’s description of her job duties indicate that she did not do much reading 

or writing, working with figures, or operat[ing] a cash register.” Id. Thus, Defendant concludes 

that Plaintiff is capable of performing her past relevant work. 

 Defendants’ conclusion is speculative at best, and cannot be reached based on the record 

before the Court. In the function report upon which Defendant relies, Plaintiff also indicated that 

as a warehouseman she spent two hours per day “writ[ing], typ[ing] or handl[ing] small objects.” 

(R. at 147.) She also indicated that she was a “lead worker,” and that she supervised four 

employees. (R. at 148.) Even without the benefit of expert testimony, it would appear that these 

aspects of Plaintiff’s position as a warehouseman are inconsistent with the limitations set forth in 

the opinions of Drs. Litwin and Dawkins. Moreover, the ALJ and not this Court must decide 

whether Plaintiff is capable of performing her past relevant work. But the ALJ must take into 

account all of Plaintiff’s limitations when he does so. The ALJ failed to do so here. 

 Based on the foregoing, it is RECOMMENDED that the decision of the Commissioner 

be REVERSED and that this action be REMANDED to the Commissioner and the ALJ under 

Sentence Four of § 405(g). 

VII. PROCEDURE ON OBJECTIONS 

 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 

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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)). 

Date: July 22, 2013 /s/ Elizabeth A. Preston Deavers____ 

Elizabeth A. Preston Deavers 

 United States Magistrate Judge 

Case: 2:12-cv-00298-MHW-EPD Doc #: 22 Filed: 07/23/13 Page: 16 of 16 PAGEID #: <pageID>