United States District Court, N.D. Ohio, Eastern Division
ANGEL J. MEDINA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OF OPINION AND ORDER
Jonathan D. Greenberg United States Magistrate Judge.
matter is before the Court on consent of the parties,
pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1(a).
Plaintiff, Angel J. Medina (“Plaintiff”),
challenges the final decision of Defendant, Nancy A.
Berryhill,  Acting Commissioner of Social Security
(“Commissioner”), denying his application for
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. § 1381 et
seq. (“Act”). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). For the reasons set
forth below, the Commissioner's final decision is
August 2009, Plaintiff filed an application for SSI alleging
a disability onset date of June 1, 2009 and claiming
disability due to breathing problems, sleep apnea, and
depression. (Doc. No. 11 & 15, Transcript
(“Tr.”) at 133.). The applications were denied
initially and upon reconsideration, and Plaintiff requested a
hearing before an administrative law judge
(“ALJ”). (Tr. 84, 90, 93).
28, 2011, an ALJ held a hearing, during which Plaintiff,
represented by counsel, and an impartial vocational expert
(“VE”) testified. (Tr. 48). On December 12, 2011,
the ALJ issued a written decision finding Plaintiff was not
disabled. (Tr. 28). The ALJ's decision became final on
April 4, 2013, when the Appeals Council declined further
review. (Tr. 1).
sought review in district court. (Tr. 486). On September 23,
2014, the district court reversed the ALJ's decision and
remanded for further proceedings. See Medina v.
Comm'r, Case No. 1:13cv1183 (N.D. Ohio) (McHargh,
M.J.). Specifically, the court determined that the ALJ erred
by failing to proffer post hearing evidence to Plaintiff.
matter was remanded, and, on June 22, 2015, another
administrative hearing was held. (Tr. 511). Plaintiff,
represented by counsel, testified with the assistance of
Spanish language intepreter. (Id.). A vocational
expert also appeared and testified. (Id.). On
December 3, 2015, the ALJ issued a decision denying benefits.
(Tr. 479). The Appeals Council denied review and the
Commissioner's decision became fnial on August 19, 2016.
October 14, 2016, Plaintiff filed the instant action
challenging the Commissioner's final decision. (Doc. No.
1). The parties have completed briefing in this case. (Doc.
Nos. 22, 24). Plaintiff asserts the following assignments of
(1) Whether the administrative law judge's finding that
Mr. Medina had a limited education was supported by
substantial evidence where Mr. Medina was in special
education in Puerto Rico, he has required assistance with
medical appointments due to his language barrier, he receives
Spanish-language mental health care, and he has required
(2) Whether the administrative law judge's finding at
Step 5 of the sequential evaluation is supported by
substantial evidence where the administrative law judge erred
in failing to find any limitation on Mr. Medina's ability
to communicate in English or read in English and there is no
evidence that Mr. Medina could perform the jobs identified if
he is so limited?
No. 22 at 1).
noted above, the issues raised in this appeal relate strictly
to Plaintiff's English proficiency and literacy. The
recitation of evidence that follows is accordingly limited to
that particular issue.
was thirty-three years-old at the time he filed his
application for benefits. (Tr. 499). The record shows that
Plaintiff was a Spanish-speaker; that he was in special
education classes in Puerto Rico; that he dropped out of high
school before the 12th grade; that he never obtained a GED;
and that on a number of occasions he requested and used an
interpreter. (Tr. 239, 241, 246, 253, 280, 305, 764).
Plaintiff's disability report indicates that could not
speak and understand English, but he was able to read and
understand English. (Tr. 149). During emergency room visits
in March 2010 and January 2011, Plaintiff used Spanish
language interpreter. (Tr. 850, 862). One consultative
examination was completed with the assistance of an
interpreter. (Tr. 196). The examiner, Richard Halas, M.A.,
reported that “[t]he evaluation was completed with the
help of an interpreter as Mr. Medina speaks mostly in
Spanish.” (Tr. 196). A second consultative examination
was conducted in English, and the examiner, Thomas Zeck,
Ph.D., reported that
It was most difficult to get information from Mr. Medina. He
had difficulty with the English language and he seemed to
have difficulty explaining himself and giving information to
this examiner. * * * [I]t was very difficult to understand
him because of his not having a good command of the English
language. Very often is was necessary to ask him to repeat
himself and when he did he was mor understandable.
(Tr. 279). The third consultative examination was conducted
in Spanish. (Tr. 763).
the 2011 administrative hearing, no interpreter was present,
and Plaintiff appeared without representation. (Tr. 48).
Neither Plaintiff nor the ALJ indicated that Plaintiff was
having any difficulty understanding the ALJ's questions
or responding to them. During the hearing, Plaintiff
testified, in English, that he can could read and write
English “a little bit.” (Tr. 59). An interpreter
was present for and participated in the 2015 remand hearing.
(Tr. 513, 515, 521). Plaintiff testified that he knew how to
write in Spanish, but not correctly. (Tr. 535).
expert Robert Mosely also testified at the hearing. (Tr.
538). The ALJ posed a hypothetical question to the VE,
assuming an individual of Plaintiff's age, education, and
vocational background, who could perform medium work as
defined at 20 C.F.R. § 416.967(c), with additional
limitations as follows: could never climb ropes, ladders, or
scaffolds, limited to frequent handling and fingering with
the upper extremities, limited to simple, routine tasks with
no fast-paced work, no strict production quotas, only simple
work instructions and decisions, and minimal changes in the
work setting. (Tr. 539). Further, the hypothetical individual
was limited to occasional and superficial interaction with
the public, coworkers and supervisors. (Tr. 539).
testified that such an individual could perform the jobs of
cook helper (3, 000 regional jobs, 600, 000 jobs nationally);
folder (1, 200 regional jobs, 200, 000 jobs nationally); and
bagger (1, 200 regional jobs, 100, 000 nationally). (Tr.
SUMMARY OF COMMISSIONER'S DECISION
determined that Plaintiff was capable of performing a reduced
range of medium work. (Tr. 497). He was precluded from
climbing ladders, ropes and scaffolds and limited to no more
than frequent handling and fingering. (Tr. 497). Plaintiff
was further limited to simple, routine tasks with no
fast-paced work; no strict production quotas; only simple
work instructions and decisions; minimal changes in the work
setting; and occasional and superficial interaction with
supervisors, co-workers and the public. (Tr. 497). The ALJ
concluded, based on the VE's testimony, that Plaintiff,
despite his impairments, could perform a significant number
of other jobs, and, therefore, was not disabled under the
Act. (Tr. 500-01).
STANDARD OF REVIEW
Social Security Act authorizes narrow judicial review of the
final decision of the Social Security Administration
(SSA).” Reynolds v. Comm'r of Soc. Sec.,
2011 WL 1228165 at * 2 (6th Cir. April 1, 2011).
Specifically, this Court's review is limited to
determining whether the Commissioner's decision is
supported by substantial evidence and was made pursuant to
proper legal standards. See Ealy v. Comm'r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v.
Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir.
2009). Substantial evidence has been 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 v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting
Cutlip v. Sec'y of Health and Human Servs., 25
F.3d 284, 286 (6th Cir. 1994)). In determining whether an
ALJ's findings are supported by substantial evidence, the
Court does not review the evidence de novo, make
credibility determinations, or weigh the evidence.
Brainard v. Sec'y of Health & Human Servs.,
889 F.2d 679, 681 (6th Cir. 1989).
of the Commissioner's decision must be based on the
record as a whole. Heston v. Comm'r of Soc.
Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of
the Commissioner are not subject to reversal, however, merely
because there exists in the record substantial evidence to
support a different conclusion. Buxton v. Halter,
246 F.3d 762, 772-3 (6th Cir. 2001) (citing Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also
Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999) (“Even if the evidence could also
support another conclusion, the decision of the
Administrative Law Judge must stand if the evidence could
reasonably support the conclusion reached.”). This is
so because there is a “zone of choice” within
which the Commissioner can act, without the fear of court
interference. Mullen, 800 F.2d at 545 (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
addition to considering whether the Commissioner's
decision was supported by substantial evidence, the Court
must determine whether proper legal standards were applied.
Failure of the Commissioner to apply the correct legal
standards as promulgated by the regulations is grounds for
reversal. See, e.g., White v. Comm'r of Soc.
Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v.
Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.
2006) (“Even if supported by substantial evidence,
however, 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.”).
a district court cannot uphold an ALJ's decision, even if
there “is enough evidence in the record to support the
decision, [where] the reasons given by the trier of fact do
not build an accurate and logical bridge between the evidence
and the result.” Fleischer v. Astrue, 774
F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir.1996); accord
Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov.
1, 2012) (“If relevant evidence is not mentioned, the
Court cannot determine if it was discounted or merely
overlooked.”); McHugh v. Astrue, 2011 WL
6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v.
Astrue, 2010 WL 2837260 (E.D. Tenn. July 19, 2010);
Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9,
raises two questions on appeal: First, whether substantial
evidence supports the ALJ's determination that Plaintiff
had “a limited education and is able to communicate in
English”; and second, whether the ALJ erred by failing
to consider whether Plaintiff's lack of English
proficiency would have an impact on his ability to perform
other work at Step Five. The Court addresses each question
Whether the ALJ erred when determining that Plaintiff was
able to communicate in English
first argues that substantial evidence does not support the
ALJ's determination that Plaintiff had “a limited
education and is able to communicate in English. (Tr. 499).
Plaintiff further suggests that the ALJ erred by failing to
state any reasons for reaching this conclusion.
review of the administrative decision and the record as a
whole, the Court concludes that the ALJ did not err and that
substantial evidence supports his finding. While Plaintiff is
correct that the ALJ did not articulate his reasons for
reaching this conclusion, insofar as this was error,
Court finds it was harmless, given the evidence described
below. On June 28, 2011, Plaintiff appeared and testified
before an ALJ without counsel and without an interpreter. On
review of the transcript of this hearing, it is not evident
that Plaintiff had any difficulty understanding or
communicating with the ALJ. At the hearing Plaintiff
testified that he was able to read and write in English
“a little bit, ” but at no time during the
proceedings did either Plaintiff or the ALJ indicate that
oral communication was a problem. The following, typical
passages from the hearing transcript establish that Plaintiff
could both understand the ALJ's questions and communicate
coherent and meaningful answers:
Q ...Do you have a driver's license?
A Not at this time.
Q No? Did you have a driver's license before?
A Yeah. It was suspended.
Q Why was it suspended?
A Because they stopped me one time for my birthday and I was
drinking and ...