UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MARK A. SCOTT,

Plaintiff, Case No. 3:18-cv-171

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendant.

_____________________________________________________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY

FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, 

AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER 

UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS 

CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

_____________________________________________________________________________________________________________________

This is a Social Security disability benefits appeal. At issue is whether the Administrative 

Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to 

Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).

2

 This case 

is before the Court upon Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s 

memorandum in opposition (doc. 12), Plaintiff’s reply (doc. 13), the administrative record (doc. 

8), and the record as a whole.3

I.

A. Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of November 12, 2014. 

PageID 273-85. Plaintiff claims disability as a result of a number of alleged impairments 

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation.

2

“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are 

identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB 

regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.

3 Hereafter, citations to the electronically-filed record will refer only to the PageID number. 
2

including, inter alia, lumbar spine degenerative disc disease, fibromyalgia, carpal tunnel 

syndrome, depression, and anxiety. PageID 55. 

After an initial denial of his applications, Plaintiff received a hearing before ALJ Gregory 

Kenyon on April 11, 2017. PageID 80-118. The ALJ issued a written decision on September 18, 

2017 finding Plaintiff not disabled. PageID 53-65. Specifically, the ALJ found at Step Five that, 

based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light 

work,4“there are jobs in that exist in significant numbers in the national economy that [he] can 

perform[.]” PageID 57-64. The Appeals Council denied Plaintiff’s request for review, making 

the ALJ’s non-disability finding the Commissioner’s final administrative decision. PageID 38-40. 

See Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then 

filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).

B. Evidence of Record

Evidence of record is summarized in the ALJ’s decision (PageID 56-63), Plaintiff’s 

Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc. 12), and 

Plaintiff’s reply (doc. 13). The undersigned incorporates all of the foregoing and sets forth the 

facts relevant to this appeal herein.

II.

A. Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s nondisability finding is supported by substantial evidence, and (2) whether the ALJ employed the 

 

4 Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of 

objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most of 

the time with some pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can 

perform light work is presumed also able to perform sedentary work. Id. Sedentary work “involves lifting 

no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and 

small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking 

and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
3

correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46 

(6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner 

v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When 

substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if 

substantial evidence also exists in the record upon which the ALJ could have found Plaintiff 

disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of 

choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.

The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -- may 

result in reversal even if the ALJ’s decision is supported by substantial evidence in the record. 

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the 

Commissioner will not be upheld where the [Social Security Administration] fails to follow its 

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

of a substantial right.” Bowen, 478 F.3d at 746.

B. “Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined by 

the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a 

“disability” includes physical and/or mental impairments that are both “medically determinable” 

and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging 

in “substantial gainful activity” that is available in the regional or national economies. Id.

Administrative regulations require a five-step sequential evaluation for disability 

determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the 

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential 

review poses five questions:
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1. Has 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 (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?;

4. Considering the claimant’s RFC, can he or she perform his or her past 

relevant work?; and

5. Assuming the claimant can no longer perform his or her past relevant work 

-- and also considering the claimant’s age, education, past work experience, 

and RFC -- do significant numbers of other jobs exist in the national 

economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D. 

Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social 

Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).

III.

On appeal, Plaintiff argues that substantial evidence does not support: (1) the mental health 

limitations set forth by the ALJ in the RFC finding; and (2) the ALJ’s evaluation of opinion 

evidence submitted by examining physician William Smith, D.O. PageID 1523-31. Finding error 

in the ALJ’s RFC determination regarding Plaintiff’s mental health limitations, the undersigned 

does not address the merits of Plaintiff’s second alleged error and, instead, would direct -- as set 

forth below -- that the ALJ reweigh Dr. Smith’s opinion on remand in light of Plaintiff’s arguments 

and the undersigned’s comments below.

A. Mental Health Limitations

The Commissioner’s regulations provide that a claimant’s “impairment(s), and any related 

symptoms, such as pain, may cause physical and mental limitations that affect what [he or she] 

can do in a work setting.” 20 C.F.R. § 404.1545(a)(1). An individual’s RFC “is the most [he or 

she] can still do despite [his or her] limitations.” Id. While the determination of an RFC is within 

the ALJ’s province, “the RFC is ultimately a medical question that must find at least some support 
5

in the medical evidence of record.” Powell v. Comm’r of Soc. Sec., No. 3:15-CV-406, 2017 WL 

1129972, at *4 (S.D. Ohio Mar. 27, 2017) (citing Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 

2007)). In other words, “[t]he [RFC] opinions of treating physicians, consultative physicians, and 

medical experts who testify at hearings are crucial to determining a claimant’s RFC because ‘[i]n 

making the residual functional capacity finding, the ALJ may not interpret raw medical data in 

functional terms.’” Isaacs v. Astrue, No. 1:08-CV-00828, 2009 WL 3672060, at *10 (S.D. Ohio 

Nov. 4, 2009) (quoting Deskin v. Commissioner, 605 F.Supp.2d 908, 912 (N.D. Ohio 2008)). 

Here, Plaintiff argues that the ALJ committed error by failing to set forth an appropriate 

limitation concerning his ability to work around, and be in contact with, others in the workplace. 

PageID 1527. In this regard, Plaintiff points to the opinions of record-reviewers Kristen Haskins, 

Psy.D. and Carl Tishler, Ph.D., who both opine that, with regard to Plaintiff’s ability to sustain 

concentration and persist in the workplace, he possesses “the ability to attend [work] and 

concentrate for periods of two hours in a setting where [he] can work away from others.” PageID 

131, 162. In addition, Drs. Haskins and Tishler also both opine that, with regard to Plaintiff’s 

ability to socially interact with others, he “has the ability to interact appropriately. . . in [a]

workplace that has [an] expectation for occasional, superficial interactions.” Id. 

The ALJ gave “little weight” to the opinions of these record-reviewers, not because he 

found their opinions exaggerated, but because “some additional evidence added to the record after 

their review[] indicates greater limitation regarding [Plaintiff’s] contact with others.” PageID 61. 

In other words, the ALJ appears to have accepted the opinion that Plaintiff is limited in his ability 

to be in contact with others, but to a degree more restrictive than that opined by Drs. Haskins and 

Tishler. Id. However, when setting forth Plaintiff’s RFC in that regard, the ALJ found less

restrictive limitations than those opined by Drs. Haskins and Tishler. PageID 57. Specifically,

while the ALJ found -- as did Drs. Haskins and Tishler -- that Plaintiff was capable of “occasional 
6

contact with co-workers and supervisors[,]” he set forth no limitation regarding the quality of 

contact Plaintiff was capable of having with coworkers and supervisors (i.e., some limitation 

greater than superficial contact),

5

and neglected to address Plaintiff’s apparent need to work away 

from others so as to be capable of attending work and concentrating for two hour periods. Id.

The Commissioner argues that the ALJ’s statement relating to the need for “greater 

limitation regarding contact with others” is a statement intended to apply only to the recordreviewers’ opinions concerning Plaintiff’s abilities to socially interact with others in the 

workplace, not his apparent need to work away from others for purposes of maintaining 

concentration, persistence, and pace. Doc. 12. Even assuming, arguendo, that the Commissioner’s 

position is correct, and the ALJ’s statement applied only to Plaintiff’s ability to socially interact, 

the RFC found by the ALJ would still appear deficient because no greater limitation than that 

opined by the record-reviewers was given in that regard. Because the social interaction limitation 

set forth by the ALJ in the RFC is not “greater” than that opined by Drs. Haskins and Tishler, the 

ALJ’s analysis is unsupported by substantial evidence and a remand is needed for additional 

analysis and explanation by the ALJ in this regard. Cf. O’Ryan v. Comm’r of Soc. Sec., No. 3:14-

CV-125, 2015 WL 6889607, at *4 (S.D. Ohio July 30, 2015) (string citation omitted).

B. Weighing of Examining Source Opinion Evidence

In his second assignment of error, Plaintiff argues that the ALJ erred in weighing the 

opinion of examining physician Dr. Smith. PageID 1528. Dr. Smith, who examined Plaintiff one 

 

5

“[O]ccasional and superficial are not coterminous.” Danielson v. Comm’r of Soc. Sec., No. 3:18-

CV-84, 2019 WL 1760071, at *4 (S.D. Ohio Apr. 22, 2019), report and recommendation adopted, No. 

3:18-CV-84, 2019 WL 2011077 (S.D. Ohio May 7, 2019). “Instead, [o]ccasional contact goes to the 

quantity of time spent with [] individuals, whereas superficial contact goes to the quality of the interactions.” 

Id. (internal quotation marks omitted) (citing Hurley v. Berryhill, No. 1:17-CV-421-TLS, 2018 WL 

4214523, at *4 (N.D. Ind. Sept. 5, 2018)). Courts have found error where, as here, an ALJ fails to address 

a medical source’s opinion regarding both the nature and frequency of an individual’s ability to interact 

with others in the workplace. See Walsh v. Colvin, No. 3:15CV1708, 2016 WL 1752854, at *14 (N.D. 

Ohio May 3, 2016); Gonzalez v. Colvin, No. 1:13-CV-01358, 2014 WL 1333713, at *9 (N.D. Ohio Mar. 

28, 2014); Hill v. Colvin, No. 3:14-CV-2073-TLS, 2015 WL 8752361, at *5 (N.D. Ind. Dec. 14, 2015).
7

time in spring 2015,

6

found that, inter alia, Plaintiff “is incapable of any lifting, carrying, pushing, 

or pulling due to his back problem” and is limited to 45 minutes of sitting, standing, and walking 

“because of his lower back issues.” PageID 939. The ALJ gave Dr. Smith’s opinion “little weight” 

because objective evidence of record “indicates [Plaintiff] has [a] normal gait and does not have 

ongoing treatment related to gait disturbance, strength, or sensation difficulty”; and also because 

his “restrictions are wholly inconsistent with the mild objective findings, and with his own 

examination findings.” PageID 62.

Because the undersigned finds remand appropriate as set forth above, the undersigned need 

not address the merits of Plaintiff’s alleged error in this regard. Instead, the ALJ shall consider 

Plaintiff’s arguments on remand and reweigh Dr. Smith’s opinion anew. Although the undersigned 

does not reach the merits of Plaintiff’s second argument on appeal, the undersigned does note that 

the ALJ’s analysis concerning Dr. Smith’s opinion lacks specific explanation as to why MRI 

results documenting degenerative disc disease of the lumbar spine fail to support Dr. Smith’s 

opinion or why notations regarding Plaintiff’s “normal gait” undermine it.

IV.

When, as here, the ALJ’s non-disability determination is unsupported by substantial 

evidence, the Court must determine whether to reverse and remand the matter for rehearing or to 

reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the 

Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. 

§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded 

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

establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 

 

6

 It is not clear when Dr. Smith examined Plaintiff. PageID 937-39. The front page of Dr. Smith’s 

report is dated March 25, 2015, whereas the second and third pages of his report are dated May 25, 2015. 

Id. The date of Dr. Smith’s examination of Plaintiff, however, is not critical to the undersigned’s review 

on appeal.
8

F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); 

Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). In this instance, 

evidence of disability is not overwhelming, and a remand for further proceedings is necessary. 

V.

IT IS THEREFORE RECOMMENDED THAT: (1) the ALJ’s non-disability finding 

be found unsupported by substantial evidence, and REVERSED; (2) this matter be REMANDED 

to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings consistent 

with this opinion; and (3) this case be CLOSED.

Date: June 13, 2019 s/ Michael J. Newman

Michael J. Newman

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 Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, 

this Report and Recommendation was served upon you by mail, this deadline is extended to 

SEVENTEEN DAYS per Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to 

file objections by filing a motion for extension, which the Court may grant upon a showing of good 

cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected 

to and shall be accompanied by a memorandum of law in support. 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. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is extended 

to SEVENTEEN DAYS per Fed. R. Civ. P. 6(d). 

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

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 

(6th Cir. 1981).