UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICHAEL POHL,

Plaintiff,

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:18-cv-00019

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

Plaintiff Michael Pohl has many health problems that interfere with his ability to 

work. He asserts in the present case—as he did in the Social Security Administration—that 

his health problems prevent him from working and thus constitute a “disability” under the 

Social Security Act. The Social Security Administration disagreed and found that he is not 

under a disability and not eligible to receive Disability Insurance Benefits. Those 

conclusions came mainly in Administrative Law Judge Mark Hockensmith’s decision. 

(Doc. #6, PageID #s 58-72).

Plaintiff presently challenges several aspects of ALJ Hockensmith’s decision, 

including, in part, his evaluation of the medical evidence of record, his conclusions that 

Plaintiff can perform light work with frequent handling and fingering bilaterally, and his 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

interpretations of raw medical data in functional terms. He seeks a remand of this case for 

payment of benefits or, at a minimum, for further administrative proceedings. The 

Commissioner finds no merit in Plaintiff’s contentions and seeks an Order affirming the 

ALJ’s decision.

II. Applicable Standards

Present review of ALJ Hockensmith’s decision proceeds along two lines: whether he 

applied the correct legal standards and whether substantial evidence supports his findings. 

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of 

Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Review for substantial evidence is not 

driven by whether the Court agrees or disagrees with the ALJ’s factual findings or by 

whether the administrative record contains evidence contrary to those findings. Gentry v. 

Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 

F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ’s factual findings are upheld if the 

substantial-evidence standard is met—that is, “if a ‘reasonable mind might accept the 

relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting 

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence 

consists of “more than a scintilla of evidence but less than a preponderance....” Rogers, 486 

F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.

If the ALJ applied incorrect legal criteria, reversal may be warranted even though the 

record contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. 

Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746.
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III. Plaintiff and his Testimony

Plaintiff was age forty-five on the date (July 1, 2014) his asserted disability began. 

He has a “limited” education, which the Social Security Administration generally considers 

to be “a 7th through the 11th grade level of formal education ....” 20 C.F.R. § 

404.1564(b)(3). He worked over the years as a dispatcher, an office manager, a service 

manager, and HVAC (heating, ventilation, and air conditioning) service technician.

Plaintiff testified during a hearing held by ALJ Hockensmith that he was 5′ 8.5′′ to 

5′9′′ tall and weighed approximately 450 pounds. He lived in a 2-story house with his 

mother and 2 sisters. He normally climbs the stairs once a day.

Plaintiff reported to ALJ Hockensmith that he had suffered a stroke 8 to 10 years 

before the hearing. Medical records show that this occurred in September 2010 (Doc. #6, 

PageID #357). About 3 months later, he returned but struggled and only worked half-time. 

This continued until Plaintiff started an in-home consulting business in 2014. His clients 

would email him their plans and other materials, and he could consult with them by mail or 

phone. Things went well until July 2014 when he had his “first real attack with the pain in 

[his] back.” (Doc. #6, PageID #88). It put him in bed for a month. He needed help to get 

to the bathroom, he couldn’t do housework, and his kids cleaned his house. Id. He lost 

about 10 percent of his clientele while he was laid up.

Things deteriorated further after he began to work again. He testified, “I would work 

... for like 15-20 minutes. Sometimes I would get an hour and I’d end up having to [lie] 

down because I would have a migraine, any number of things like that. And it’s just 

progressed since then.” Id. Plaintiff estimated that in 2015, he worked probably 30 or 
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sometimes 40 hours a week. But his ability to work progressively lessened from 40 to 30, 

then 30 to 20 hours a week due to back pain. He noted, “There are times when my back 

hurts so bad that I literally have to [lie] down.” Id. at 89. At the time of the ALJ’s hearing 

(in December 2016) he worked about 20 minutes a week.

Plaintiff can barely do the grocery shopping even in a cart. Id. He can occasionally 

vacuum depending on how he feels. He might be able to load the dishwasher but only once 

a day. Id. at 91.

The most comfortable position for Plaintiff was sitting—he could do that for at least 

20-30 minutes at a time. Id. at 91. He could stand for about 10 minutes, then his legs 

started shaking. He had “trouble breathing and stuff like that....” Id. at 92. He slept lying 

down but his pain interfered with his sleep. He only slept for 1.5 hours to two hours and 

then his pain required him to get up for an hour. He further explained, “The pain is from 

basically from the bottom of my skull down to the top of my knees.” Id.

What might be Plaintiff’s biggest difficulty is that he cannot carry anything anymore. 

He told the ALJ, “If I carry a Kleenex box upstairs from the [first (probably)] floor I’m 

hurting so bad by the time I get to the top of the stairs, it’s unreal.” Id. at 89. His ability to 

reach is restricted. If he attempts to put away groceries, he starts to lose feeling in his arms, 

causing him to drop items like small soup cans. He does not try to put away any large 

items. And he has issues with “no feeling in [his] hands.” Id. at 92. Plaintiff also noted 

during his hearing that his hands had become red in appearance and started burning: “It’s on 

fire right now. It’s tingling, but it’s tingling as such a point, it’s on fire. It’s burning,” he 

said. Id. Sitting for 30 to 45 minutes causes these issues in his hands. Id. at 93.
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His ability to stand is also limited. The outside of his legs goes numb from his hip to 

his knees. Before his hearing, he struggled to walk from a garage, where he had parked his 

car, to the building in which his hearing occurred. He testified, “I had to stop in the alley 

way lean against the wall and then when I got here, I had to stop and sit on the wall [sic], on 

the edge here in the alley way. It’s all about losing feeling in my hands and the pain in my 

back.” Id. at 93.

He has difficulty driving long distances because the pain in his back gets too serious, 

requiring him to stop and walk around. He can drive for about 30 minutes before needing to 

stop and walk around. He drives maybe twice a week, most often to the grocery store 5 

miles from his home. 

Plaintiff spends his days in his bedroom sitting in an office chair or using an electriclift chair to move to his bed. Id. at 96. He can slip on his shoes but has difficulty putting on 

pants and socks. It takes him 1 to 3 hours to shave, and he must shave in stages of 45 

minutes before he needs to sit down for 1 hour to 1 hour and 45 minutes. Id. at 97. He must 

shave in this manner mostly due to his back pain but also due to the combination of pain and 

fatigue. He cannot bend and stoop to pick a quarter off the floor. He must kneel to get it. 

Id.

IV. ALJ Hockensmith’s Decision

In reviewing the evidence connected to Plaintiff’s application for benefits, ALJ 

Hockensmith utilized the applicable 5-step analysis. See 20 C.F.R. § 404.1520; see e.g.,

Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 931 (6th Cir. 2018); Glenn v. Comm’r of Soc. 

Sec., 763 F.3d 494, 497 n.1 (6th Cir. 2014). Among the ALJ’s more significant findings, he 
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described, at step 2, Plaintiff’s many severe impairments as “cervical and lumbar 

degenerative disc disease, obesity, hypertension, migraines, bilateral carpal tunnel 

syndrome, peripheral neuropathy, depression, and cognitive disorder.” (Doc. #6, PageID

#60). At step 3, the ALJ found that Plaintiff was not automatically entitled to benefits under 

the Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. 

(Doc. #6, PageID at 61).

At Step 4, the ALJ concluded that Plaintiff could perform light work with many 

limitations:

(1) no climbing of ladders, ropes or scaffolds; (2) occasional climbing of ramps 

or stairs; (3) occasional balancing and stooping; (4) no kneeling, crouching or 

crawling; (5) frequent overhead reaching bilaterally; (6) frequent handling and 

fingering bilaterally; (7) no work at unprotected heights or with dangerous 

machinery; (8) limited to simple, routine tasks; (9) in a static work environment 

with few changes in routine; (10) no fast paced work or strict work production 

quotas; and (11) occasional contact with the public, coworkers, and supervisors. 

Id. at 63. Given these limited abilities, Plaintiff could no longer engage in his past relevant 

work, according to the ALJ. Id. at 70.

Continuing to step 5, ALJ Hockensmith determined that Plaintiff could perform a 

significant number of unskilled light jobs available in the national economy—namely, 

laundry worker, inspector, hand packager, and mail clerk. His ability to do such available 

jobs meant he was not under a disability and not eligible to receive Disability Insurance 

Benefits. Id. at 70-71.

V. Discussion

Plaintiff contends that the ALJ reversibly erred at Step 4 because his assessment of 

Plaintiff’s residual functional capacity is unreasonable in light of his obesity; his objectively 
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documented back impairment; and his objectively documented paresthesia, carpal tunnel 

syndrome, and peripheral neuropathy in his hands. Plaintiff also maintains that the ALJ 

erred by interpreting raw medical data into functional terms. He points out that neither of 

the record-reviewing state-agency physicians nor Dr. Vitols interpreted the July 2016 MRI 

of Plaintiff’s cervical spine, which—Plaintiff says—revealed significant findings. Plaintiff 

argues that because the ALJ relied on incomplete medical-expert opinion, he crossed the 

line between judge and medical doctor.

The Commissioner asserts that the ALJ engaged in a lengthy and thoughtful 

discussion of the effects of Plaintiff’s obesity on his other impairments and recognized that 

his obesity aggravated his other conditions. The Commissioner further contends that the 

ALJ pointed to three medical opinions that considered Plaintiff’s height and weight or 

otherwise mention his obesity and found him capable of light work. Because of this, the 

ALJ’s decision followed Coldiron v. Comm’r of Soc. Sec., 391 F.App’x 435, 443 (6th Cir. 

2010), according to the Commissioner.

Contrary to the Commissioner’s contention, the ALJ’s decision does not contain a 

lengthy and thoughtful discussion of Plaintiff’s obesity and its impact on his impairments. 

The ALJ’s initial findings concerning Plaintiff’s obesity arose at Step 2 where the ALJ 

found that Plaintiff’s severe impairments included obesity. The ALJ noted that Plaintiff’s 

hearing testimony indicated he stood 69 inches tall and weighed 450 pounds, equaling a 

body mass index of “66.4 at minimum.” (Doc. #6, PageID #60). The ALJ further found at 

Step 2 that Plaintiff “is considered obese and that condition could be expected to aggravate 

his other conditions.” Id. The ALJ did not otherwise mention Plaintiff’s obesity at Step 2
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or discuss which of Plaintiff’s other conditions aggravated by his obesity. Although this 

omission was not an error, the point here is that the ALJ’s Step 2 findings do not contain a 

lengthy and thorough discussion of Plaintiff’s obesity and its effects on him.

The ALJ similarly provided no indication at Step 3 that he considered whether 

Plaintiff’s obesity combined with his other impairments met or equaled the requirements of 

any Listing-level impairment. Although the ALJ generally found at Step 3 that Plaintiff’s 

impairments alone or in combination did not meet or medically equal a Listing-level 

impairment, he omitted specific mention of obesity in his Step 3 discussion. Consequently, 

and contrary to the Commissioner’s position, the ALJ’s decision at Step 3 does not provide 

a lengthy and thorough discussion regarding Plaintiff’s obesity and its impact on his other 

impairments. This also runs afoul of a mandate set forth in the regulations: 

The combined effects of obesity with musculoskeletal impairments can be 

greater than the effects of each of the impairments considered separately. 

Therefore, when determining whether an individual with obesity has a listinglevel impairment, and when assessing a claim at other steps of the sequential 

evaluation process, including when assessing an individual’s residual functional 

capacity, adjudicators must consider any additional and cumulative effects 

of obesity.

20 C.F.R. Part 404, Subpart P, App'x 1, § 1.00(Q) (emphasis added); see Soc. Sec. R. 02-1p, 

2002 WL 34686281, at *3 (Sept. 12, 2002); see Shilo v. Comm'r of Soc. Sec., 600 F. App’x

956, 959 (6th Cir. 2015) (obesity “must be considered throughout the ALJ’s determinations, 

‘including when assessing an individual’s residual functional capacity,’ precisely because 

“the combined effects of obesity with other impairments can be greater than the effects of 

each of the impairments considered separately.”). The Commissioner correctly recognizes 

that an ALJ’s decision satisfies this requirement when he or she credits the opinions of 
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physicians “ ‘who explicitly accounted for [a claimant’s] obesity.’ ” Miller v. Comm’r of 

Soc. Sec., 811 F.3d 825, 835 (6th Cir. 2016) (quoting Coldiron, 956 F. App’x at 959).

Did the ALJ sufficiently consider Plaintiff’s obesity at Step 4? 

The ALJ acknowledged at Step 4 that Plaintiff “alleged ... he was unable to work 

because of stroke, high blood pressure, depression, arthritis in lower back, morbid obesity, 

hand numbness, hip pain, and poor memory.” (Doc. #6, PageID #64). The ALJ also noted 

that Plaintiff had participated in diet-management counseling but had attempted to lose 

weight without success. The ALJ also knew that Plaintiff’s weight had fluctuated 

throughout his treatment and that he weighed 450 pounds (per his testimony) at the time of 

the ALJ’s hearing. Id. at 67. The ALJ generally observed that Dr. Vitols and nurse 

practitioner Ms. Zuhl had diagnosed Plaintiff with morbid obesity, among other conditions. 

Id. at 65-66.

The ALJ erred at Step 4 by providing no meaningful discussion of the impact 

Plaintiff’s obesity had on his other impairments. Although the ALJ certainly understood 

that Plaintiff had been diagnosed as morbidly obese and have the severe impairment of 

morbid obesity, his decision at Step 4 does not sufficiently identify morbid obesity as an 

impairment he considered when determining the combined impact his impairments have on 

his functional limitations. This omission is contrary to the regulations. See 20 C.F.R. Part 

404, Subpart P, App'x 1, § 1.00(Q) (“adjudicators must consider any additional and 

cumulative effects of obesity.” (emphasis added); see also Soc. Sec. R. 02-1p, 2002 WL 

34686281, at *7 (“As with any other impairment, we will explain how we reached our 
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conclusions on whether obesity caused any physical or mental limitations.” (emphasis 

added)).

The Commissioner’s reliance on Coldiron is misplaced. In Coldiron, the ALJ went 

much further in considering the claimant’s morbid obesity by finding “that Coldiron 

‘appeared to be limited primarily by obesity and deconditioning’ ....” 391 F. App’x at 443 

(quoting, in part, the ALJ’s decision). Coldiron also explained, “acknowledged that obesity 

contributed to Coldiron’s other medical conditions. [The ALJ] noted, for instance, that 

Coldiron’s weight exacerbated his mild restrictive lung disease, dyspnea, obstructive sleep 

apnea, and the musculoskeletal symptoms related to Coldiron’s knees and back.” Id. In the 

present case, unlike in Coldiron, the ALJ did not determine whether Plaintiff’s obesity 

constituted his primary limitation. Although the regulations do not specify this as a 

mandatory part of the obesity inquiry, it is a distinguishing feature between Coldiron and 

the present case. Additionally, in the present case, in contrast to Coldiron, the ALJ did not 

discuss or explain whether the claimant’s obesity contributed to any of his other specific 

impairments. And Plaintiff has such impairments to consider in combination with his 

obesity—namely, his severe impairments of cervical and lumbar degenerative disc disease, 

hypertension, migraines, carpal tunnel syndrome, peripheral neuropathy, or depression.

Accordingly, the ALJ’s errors regarding Plaintiff’s obesity requires a remand of this 

matter to the Social Security Administration.2

 2 In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of 

Plaintiff’s remaining contentions is unwarranted. 
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VI. Remand For Further Proceedings

Remand is warranted when an ALJ’s decision is unsupported by substantial evidence 

or when the ALJ failed to follow the Administration’s own regulations and that shortcoming 

prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial right. Bowen, 

478 F.3d at 746. Remand for an ALJ’s failure to follow the regulations might arise, for 

example, when the ALJ failed to provide “good reasons” for rejecting a treating medical 

source’s opinions, see Wilson, 378 F.3d at 545-47; failed to consider certain evidence, such 

as a treating source’s opinions, see Bowen, 478 F3d at 747-50; failed to consider the 

combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to 

provide specific reasons supported by substantial evidence for finding the plaintiff’s 

credibility lacking, Rogers, 486 F.3d at 249.

Under sentence four of 42 U.S.C. §405(g), the Court has authority to affirm, modify, 

or reverse the Commissioner’s decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under 

sentence four may result in the need for further proceedings or an immediate award of 

benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 

1994). The latter is warranted “only where the evidence of disability is overwhelming or 

where the evidence of disability is strong while contrary evidence is lacking.” Felisky, 35 

F.3d at 1041 (quoting Faucher v. Sec’y of Health & Humans Servs., 17 F.3d 171, 176 (6th 

Cir. 1994)).

A remand for an award of benefits is unwarranted in the present case because the 

evidence of disability is not overwhelming and because the evidence of disability is not 
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strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is 

entitled to an Order remanding this matter to the Social Security Administration pursuant to 

sentence four of § 405(g) due to errors identified above. On remand the ALJ should be 

directed to review Plaintiff’s disability claim to determine anew whether he was under a 

benefits-qualifying disability pursuant to the applicable five-step sequential evaluation 

procedure, including, at a minimum, (1) consideration and discussion of whether Plaintiff’s 

morbid obesity in combination with his other impairments meets or equals the 

Commissioner’s Listing criteria, see Soc. Sec. R. 02-1p, 2002 WL 34686281, at *5

(“Obesity may be a factor in both ‘meets’ and ‘equals’ determinations.”)3

; and, (2) a reassessment of Plaintiff’s residual functional capacity, including consideration and 

meaningful explanation of the impact his morbid obesity has in combination with other 

impairments on his functional limitations. The Administration need not proceed to Step 4 of 

the sequential evaluation in the event it is administratively determined that Plaintiff is 

automatically eligible for benefits at Step 3.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability finding be vacated;

2. No finding be made as to whether Plaintiff Michael Pohl was under a 

Adisability@ within the meaning of the Social Security Act;

3. This case be remanded to the Social Security Administration under sentence 4

of 42 U.S.C. '405(g) for further consideration consistent with this Report and 

any Decision and Entry adopting this Report and Recommendations; and

 3 Ruling 01-02p identifies an additional significant possibility concerning whether obesity alone may constitute a 

disability at Step 3: “If an individual has the medically determinable impairment obesity that is ‘severe’..., we may find 

that the obesity [alone] medically equals a listing.” 2002 WL 34686281, at *4.
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4. The case be terminated on the docket of this Court.

April 3, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise 

directs. A party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).