UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MATICIA A. HANKINSON, 

 

 Plaintiff, 

 Case No. 2:18-cv-58 

 v. JUDGE JAMES L. GRAHAM 

 Chief Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

 

REPORT AND RECOMMENDATION 

 Plaintiff, Maticia A. Hankinson, 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 disability insurance benefits and supplemental security income. This matter is 

before the United States Magistrate Judge for a Report and Recommendation on Plaintiff’s 

Statement of Errors (ECF No. 9), the Commissioner’s Memorandum in Opposition (ECF No. 

16), Plaintiff’s Reply (ECF No. 17), and the administrative record (ECF No. 7). For the reasons 

that follow, it is RECOMMENDED that the decision of the Commissioner be REVERSED and 

that this action be REMANDED under Sentence Four of § 405(g). 

I. BACKGROUND

 In May 2014, Plaintiff filed an application for supplemental security income, and in July 

2014, she applied for disability insurance benefits, alleging that she had been disabled since June 

30, 2011. (R. at 84–85, 106–07, 166–73.) Plaintiff’s applications were denied initially and upon 

reconsideration. (R. at 134–39, 141–45.) Plaintiff sought a de novo hearing before an 
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administrative law judge. (R. at 146–47.) Administrative Law Judge (“ALJ”) Paul E. Yerian 

held a hearing on September 23, 2016, at which Plaintiff, who was represented by counsel, 

appeared and testified. (R. at 51–79.) On December 30, 2016, the ALJ issued a decision finding 

that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 33–45.) On 

November 30, 2017, the Appeals Council denied Plaintiff’s request for review and adopted the 

ALJ’s decision as the Commissioner’s final decision. (R. at 1–6.) Plaintiff then timely 

commenced the instant action. 

II. RELEVANT MEDICAL RECORDS 

 On August 11, 2014, Cynthia Waggoner, Psy.D., a state-agency psychologist, reviewed 

Plaintiff’s medical record. (R. at 91–93, 101–03.) Dr. Waggoner opined that Plaintiff was able 

to perform tasks that require no more than superficial social interactions, infrequent changes, and 

no strict production quotas. (R. at 92–93, 102–03.) Dr. Waggoner further opined that Plaintiff 

was able to perform simple, repetitive one to two step tasks. (R. at 92, 102.) 

 On November 8, 2014, Karen Terry, Ph.D., a state-agency psychologist, reviewed the 

medical record upon reconsideration. (R. at 116–18, 129–31.) Dr. Terry opined Plaintiff had, 

inter alia, the following restrictions: 

[C]lmt is able to perform simple, repetitive, one to two step tasks. . . .Claimant can 

relate superficially and minimally with others; however, she will perform optimally 

in a more solitary setting, where she doesn’t have to work around large groups of 

people and she is not required to interact with the general public. . . . Clmt is able 

to perform tasks that require infrequent changes, no strict production quotas. Due 

to her anxiety, she should not be made to travel in unfamiliar places, frequently 

interact with unfamiliar others, or use public transportation as a part of her job 

duties. 

(R. at 117–18, 130–31.) 

 
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III. ADMINISTRATIVE DECISION 

 On December 30, 3016, the ALJ issued his decision. (R. at 33–45.) The ALJ found that 

Plaintiff met the special earnings requirements of the Social Security Act on the alleged onset 

date through December 31, 2016. (R. at 35.) 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 June 30, 2011. (Id.) 

 At step two, the ALJ concluded that Plaintiff had the following severe impairments: 

obesity, hypertension, an affective disorder, an anxiety disorder, and a personality disorder. (R. 

at 36.) 

 At step three of the sequential process, the ALJ concluded that that Plaintiff did not have 

an impairment or combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 36–38.) At step 

four, the ALJ assessed Plaintiff’s RFC as follows: 

 

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. § 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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After careful consideration of the entire record, I find that the claimant has the 

residual functional capacity to perform a full range of work at all exertional levels; 

however, she cannot climb ladders, ropes, or scaffolds and cannot work around 

hazards such as unprotected heights or dangerous machinery. Mentally, she can 

perform simple, repetitive tasks where there are infrequent changes in work duties 

or processes. Work tasks should not involve fast assembly line pace, strict 

production quotas, more than occasional contact with supervisors and coworkers, 

or direct interaction with the public. 

(R. at 38.) In reaching this determination, the ALJ accorded “great weight” to the state agency 

consultants’ mental assessments but accorded “very little weight” to the opinion of Plaintiff’s 

treating psychiatrist, Dr. Eric Lane. (R. at 41–42.) 

 Relying on the VE’s testimony, the ALJ determined that Plaintiff can perform jobs that 

exist in significant numbers in the national economy, including labeler/marker, racker, and 

surveillance system monitor. (R. at 43–44.) He therefore concluded that Plaintiff was not 

disabled under the Social Security Act. (R. at 45.) 

IV. 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 & 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 
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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 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 (6th Cir. 2009) (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)). 

V. ANALYSIS 

Plaintiff advances two contentions of error. Plaintiff first asserts that the ALJ failed to 

give good reasons for discounting the findings of her treating psychiatrist, Dr. Layne. Plaintiff 

next contends that the ALJ’s decision should be reversed because the ALJ failed to explain why 

the RFC failed to include limitations in the state agency consultants’ mental assessments after the 

ALJ gave “great weight” to those findings. 

Turning first to Plaintiff’s second contention of error, the Commissioner contends that 

Plaintiff waived this argument because Plaintiff did not specify what restrictions were not 

accommodated by the RFC determination. (ECF No. 16 at 7.) The undersigned disagrees. A 

party waives an argument when “advert[ing] to [it] in a perfunctory manner, unaccompanied by 

some effort at developed argumentation[.]” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th 

Cir. 1997) (internal quotation marks and citations omitted). Here, Plaintiff did not waive her 

RFC argument. She identified appropriate legal authority and discussed record evidence to 
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support her position. (ECF No. 9 at 12–13.) See Rivera v. Colvin, No. 5:16-cv-00105, 2016 WL 

6811041, at *15 (N.D. Ohio Nov. 2, 2016), report and recommendation adopted by 2016 WL 

6804422 (N.D. Ohio Nov. 17, 2016) (finding no waiver where “Plaintiff provides the relevant 

legal standards and cites to record evidence to support her argument. The argument is not 

waived, and, on review of the arguments and the record, the undersigned concludes that the 

ALJ’s credibility analysis is flawed”). 

Turning to the merits of Plaintiff’s second contention of error, the RFC “is defined as the 

most a [plaintiff] can still do despite the physical and mental limitations resulting from her 

impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009); see also 20 

C.F.R. §§ 404.1545(a), 416.945(a). The determination of RFC is an issue reserved to the 

Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e). Nevertheless, substantial evidence must 

support the Commissioner’s RFC finding. Berry v. Astrue, No. 1:09CV000411, 2010 WL 

3730983, at *8 (S.D. Ohio June 18, 2010). When considering the medical evidence and 

calculating the RFC, “‘ALJs must not succumb to the temptation to play doctor and make their 

own independent medical findings.’” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 

(6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)); see also Isaacs v. 

Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (holding that 

an “ALJ may not interpret raw medical data in functional terms”) (internal quotations omitted). 

 An ALJ is required to explain how the evidence supports the limitations that he or she set 

forth in the claimant’s RFC: 

The RFC assessment must include a narrative discussion describing how the 

evidence supports each conclusion, citing specific medical facts (e.g., laboratory 

findings) and nonmedical evidence (e.g., daily activities, observations). In 

assessing RFC, the adjudicator must discuss the individual’s ability to perform 

sustained work activities in an ordinary work setting on a regular and continuing 

basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and 
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describe the maximum amount of each work-related activity the individual can 

perform based on the evidence available in the case record. The adjudicator must 

also explain how any material inconsistencies or ambiguities in the evidence in the 

case record were considered and resolved. 

S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted). 

Here, as discussed above, the ALJ gave “great weight” to the state agency consultants’ 

mental assessments. (R. at 42.) The ALJ specifically noted that “the assessments are generally 

consistent with and well supported by the evidence of the record as a whole and are accepted as 

an accurate representation of the claimant’s mental status.” (Id.) The ALJ, therefore, appeared 

to adopt the state-agency consultants’ mental opinions in total. (Id.) 

 However, even though the ALJ gave “great weight” to these assessments and concluded 

that they were “consistent with” the record evidence, the ALJ did not include limitations 

regarding taking public transportation and travel to unfamiliar places. (R. at 38, 42.) Nowhere 

in his opinion does the ALJ explain why he failed to incorporate the state-agency physicians’ 

limitations even though he gave their assessments great weight. While it is true that the ALJ “is 

not required to recite the medical opinion of a physician verbatim in his residual functional 

capacity finding[,]” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009), the ALJ 

must nevertheless explain why he failed to include articulated limitations where he has found 

that the RFC is consistent with that medical opinion. See, e.g., Howard v. Comm’r of Soc. Sec., 

No. 2:16-cv-1104, 2018 WL 852361, at *5–6 (S.D. Ohio Feb. 14, 2018) (recommending remand 

where, inter alia, ALJ “appeared to adopt Dr. Swearingen’s opinion but failed to explain why he 

did not incorporate the limitations Dr. Swearingen assessed into Plaintiff’s mental RFC”) 

(collecting cases), adopted by 2018 WL 1136927 (S.D. Ohio Mar. 1, 2018); Reed v. Comm’r of 

Soc. Sec., No. 1:16-cv-572, 2017 WL 1531872, at *6 (W.D. Mich. Apr. 28, 2017) (remanding 

case where, inter alia, “[t]he ALJ did not explain why he did not adopt this portion of the 
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opinion [doctor’s opinion as to the plaintiff’s limitations] despite giving it great weight”); Kolasa 

v. Comm’r of Soc. Sec., No. 13-cv-14311, 2015 WL 1119953, at *10 (E.D. Mich. Mar. 11, 2015) 

(remanding where, inter alia, the ALJ gave considerable weight to the state-agency consultant’s 

opinion, “but he did not discuss why he omitted the occasional handling and fingering limitation 

and instead adopted the less restrictive frequent limitation, as required by SSR 96-8p”). The 

ALJ’s failure to do so in this case renders this Court unable to assess the ALJ’s reasoning and 

understand why he did not incorporate the state-agency physicians’ limitations of public 

transportation and travel to unfamiliar places in his RFC. See S.S.R. 96–8p, 1996 WL 374184, at 

*6–7; Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011). 

 The Commissioner, however, goes on to argue that the limitations “are clearly not 

applicable to the representative jobs listed[.]” (ECF No. 16 at 9 (citing R. at 38, 44).) The 

Commissioner specifically contends that “[t]here is no indication that the jobs of labeler/marker, 

racker, or surveillance system monitor would require the use public transportation as part of the 

job.” (Id.) The Commissioner’s argument is not well taken. The ALJ, after giving great weight 

to the state-agency consultants’ mental assessments, failed to include these two limitations from 

those assessments and did not explain this omission. The ALJ’s failure to include such 

limitations is not harmless error because based on this record, the Court cannot evaluate the 

ALJ’s reasoning and accepting the Commissioner’s attempt to explain this omission would result 

in the Court “engaging in post hoc rationalization, which is prohibited.” Miller v. Comm’r of 

Soc. Sec., No. 1:13–CV–1872, 2014 WL 3950912, at *13 (N.D. Ohio Aug. 12, 2014) (remanding 

action where, inter alia, “the Court is unable to ascertain the ALJ’s intent” because the ALJ “did 

not discuss her decision to omit the limitation” contained in a medical opinion to which the ALJ 

attributed “full weight”); see also S.S.R. 96-8p; Owens v. Comm’r of Soc. Sec., No. 1:17-cv-
9 

2453, 2018 WL 6244435, at *3 (N.D. Ohio Nov. 29, 2018) (remanding case where, inter alia, 

the Commissioner engaged in post hoc rationalization when arguing “that the jobs identified by 

the VE had DOT numbers that provided for minimal interaction with others, while conceding the 

VE, ALJ, and counsel herself did not reference this in their respective testimony, decision, or 

brief”); Davidson v. Comm’r of Soc. Sec., No. 3:16-cv-2794, 2018 WL 1453472, at *2 (N.D. 

Ohio Mar. 23, 2018) (stating that, where the failure of the ALJ to explain why he did not 

incorporate two limitations identified by a doctor “is all the more glaring, given that the ALJ 

afforded ‘great weight’ to” that doctor’s opinion and that “the ALJ’s failure to explain his 

decision deprived this court of a ‘logical bridge between the evidence on the record and his 

conclusion’. . . and left the Commissioner, in her brief on the merits . . . to defend the ALJ’s 

decision with impermissible, post-hoc rationalizations”) (citations omitted); Bookout v. Comm’r 

of Soc. Sec., No. 3:13-cv-463, 2014 WL 4450346, at *7 (E.D. Tenn. Sept. 10, 2014) (remanding 

case where, inter alia, “the ALJ adopted Dr. Fletcher’s opinion in its entirety” but “ignored” 

certain limitations and stating that the ALJ “had a duty to explain” why she declined to adopt the 

limitations).2

VI. CONCLUSION

 In sum, from a review of the record as a whole, the Undersigned concludes that 

substantial evidence does not support the ALJ’s decision denying benefits. Based on the 

foregoing, it is therefore RECOMMENDED that the decision of the Commissioner be 

REVERSED and that this action be REMANDED under Sentence Four of § 405(g). 

 

 

2

 This finding obviates the need to for in-depth analysis of Plaintiff’s remaining contention of 

error. The Court, however, encourages the Commissioner to address this contention if the Court 

ultimately remands the case. 
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VIII. 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 

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: December 9, 2019 s/ Elizabeth A. Preston Deavers _______ 

ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE