Martin v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION signed by Judge Claria Horn Boom on 9/8/21: The Magistrate Judge's Corrected Report and Recommendation [R. 21 ] is REVERSED in part. Plaintiff Shirl ey Martin's Objections to the Report and Recommendation [R. 24 ]are SUSTAINED IN PART. The decision of the Commissioner is REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g). A judgment will be entered contemporaneously with this Order. cc: Counsel(DJT)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
) Civil Action No. 3:20-CV-254-CHB-CHL
MEMORANDUM OPINION AND
ORDER ON OBJECTIONS TO
MAGISTRATE JUDGE’S REPORT
COMMISSIONER OF SOCIAL
Plaintiff Shirley Martin filed this action seeking review of the decision by Defendant
Commissioner of Social Security to deny Martin’s application for supplemental security income,
as well as disability and disability insurance benefits. [R. 1] Plaintiff submitted her Fact and Law
Summary on December 18, 2020 [R. 17], and Commissioner submitted his Fact and Law
Summary on January 18, 2021 [R. 18]. Magistrate Judge Lindsay issued a Report and
Recommendation on July 7, 2021 [R. 19], followed by a Corrected Report and Recommendation
on July 15, 2021 [R. 21], recommending that the Commissioner’s decision be affirmed. [R. 21]
This matter is before the Court on Plaintiff’s Objections to the Report and Recommendation. [R.
24] For the reasons laid out below, the Court will sustain Plaintiff’s Objections in part and
remand the case back to the Commissioner.
Magistrate Judge Lindsay’s Corrected Report and Recommendation ably sets out the full
factual background of this case. [R. 21] Briefly, Plaintiff seeks review of an Administrative Law
Judge’s (“ALJ’s”) unfavorable decision regarding her application for supplemental security
income benefits (“SSI”) under Title XVI and disability insurance benefits (“DIB”) under Title II.
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[R. 21, p. 3; R. 15 (Administrative Record), p. 14, 104–05] The ALJ engaged in the five-step
sequential process set forth in the regulations under the Social Security Act. 20 C.F.R. §
404.1520(a)–(e); 20 C.F.R. § 416.920; see Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 855 (6th
Cir. 2010). At step one, the ALJ determined that Martin had not engaged in substantial gainful
activity since January 1, 2017. [R. 15, p. 17] At step two, the ALJ determined that Plaintiff has
severe impairments of degenerative joint disease, left knee; degenerative disc disease, lumbar
spine; venous insufficiency, bilateral lower extremities, status-post left lower extremity venous
ablation; fibromyalgia; osteoarthritis, right shoulder; and obesity. Id. at 17–18. At step three, the
ALJ found that none of Plaintiff’s impairments met or medically equaled the severity of one of
the listed impairments. Id. at 18–19. The ALJ then determined that Plaintiff had the residual
functional capacity to perform light work with the following limitations:
lift and/or carry up to 20 pounds occasionally and up to 10 pounds frequently. The
claimant can stand and/or walk for 4 hours in an 8-hour workday and sit for 6 hours
in an 8-hour workday. She can occasionally climb ramps or stairs, but she can never
climb ladders, ropes or scaffolds. She can frequently balance and she can
occasionally stoop, kneel, or crouch; but she can never crawl.
Id. at 19–24. At step four, the ALJ determined that Plaintiff had no past relevant work. Id. at 24.
At step five, the ALJ determined that considering Plaintiff’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant numbers in the national
economy that she can perform, including Cashier, Office Helper, and Benchwork/Assembly. Id.
The ALJ consequently concluded that Plaintiff was not disabled as defined in the Social Security
Act from the alleged onset date through the date of the ALJ’s decision. Id. at 25. The Appeals
Council denied Plaintiff’s request for review. Id. at 5–7. Plaintiff filed this action challenging the
Commissioner’s denial of her benefits. [R. 1] The Court referred the matter to Magistrate Judge
Lindsay, who recommended that the Commissioner’s decision be affirmed. [R. 21]
Standard of Review
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When a party objects to a report and recommendation, the Court reviews de novo only
those portions of the report to which objection is made. 28 U.S.C. § 636(b)(1)(C). The Court
may adopt without review any portion of the report to which no objection is made. See Thomas
v. Arn, 474 U.S. 140, 150 (1985). On review, the Court “may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3). Accordingly, the Court will review de novo the
portions of Judge Lindsay’s Recommendation to which Plaintiff objects to determine whether
relief is warranted.
Judicial review of the Commissioner’s decision is restricted to determining whether it is
supported by substantial evidence and was made pursuant to proper legal standards. Colvin v.
Barnhart, 475 F.3d 727, 729–30 (6th Cir. 2007). “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.” Cutlip v. Sec’y of Health & Hum.
Servs., 25 F.3d 284, 286 (6th Cir. 1994). Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. Id. Rather, the Court must “affirm
the Commissioner’s conclusions unless the Commissioner failed to apply the correct legal
standard or made findings of fact that are unsupported by substantial evidence.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).
To determine disability, the ALJ conducts a five-step analysis:
1. First, plaintiff must demonstrate that she is not currently engaged in “substantial
gainful activity” at the time she seeks disability benefits.
2. Second, plaintiff must show that she suffers from a “severe impairment” in
order to warrant a finding of disability. . . .
3. Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, plaintiff is presumed to be disabled
regardless of age, education or work experience.
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4. Fourth, if the plaintiff’s impairment does not prevent her from doing her past
relevant work, plaintiff is not disabled.
5. For the fifth and final step, even if the plaintiff’s impairment does prevent her
from doing her past relevant work, if other work exists in the national economy
that plaintiff can perform, plaintiff is not disabled.
Colvin, 475 F.3d at 730 (quoting Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001)). If the ALJ makes a dispositive finding at any point in the five-step analysis, the review
terminates. Colvin, 475 F.3d at 730; 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden
of proof during the first four steps; this burden shifts to the Commissioner at step five to prove
the availability of other work in the national economy that the claimant is capable of performing.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The claimant always retains
the burden of proving lack of RFC. Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir.
In her Objections to the Report and Recommendation, Plaintiff argues that the Court
should not adopt Judge Lindsay’s analysis for several reasons. Plaintiff made the following
objections: First, the ALJ conflated Step 3 and Step 4 for Plaintiff’s obesity. [R. 24, p. 2] Second,
the ALJ did not look at how Plaintiff’s obesity would affect each of her specific impairments—
particularly in light of the fact that Plaintiff has extreme obesity (BMI of 58.4). Id. at 3–4. Third,
the finding that fibromyalgia is not a disabling limitation in the residual functional capacity
analysis is not supported by substantial evidence. Id. at 4–8. Fourth, the finding that Plaintiff’s
left knee impairment is not a disabling limitation in the residual functional capacity analysis is
not supported by substantial evidence. Id. at 9–10. Fifth, the ALJ disregarded evidence that
Plaintiff’s condition was not improving as quickly as she hoped. Id. at 10–12. Sixth, the ALJ
failed to properly explain why she was assigning “little weight” to treating physician opinions
that Plaintiff could never climb stairs and could only stand/walk for less than 2 hours in a
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workday. Id. at 11–12. Seventh, the ALJ improperly constructed the hypothetical question to the
vocational expert because she did not specify that certain tasks take longer for Plaintiff. Id. at
12–13. Because the objection is dispositive, the Court will only consider Plaintiff’s sixth
objection: the ALJ failed to properly explain why she was assigning “little weight” to treating
physician opinions. Id. at 11–12.
Treating Source Rule
The treating source rule prescribes a specific process the ALJ must go through to
discount the opinion of a treating physician. As the Sixth Circuit has explained,
If the ALJ declines to give a treating source’s opinion controlling weight, he must
then balance the following factors to determine what weight to give it: “the length
of the treatment relationship and the frequency of examination, the nature and
extent of the treatment relationship, supportability of the opinion, consistency of
the opinion with the record as a whole, and specialization of the treating source.”
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004)); see also 20 C.F.R. § 404.1527(d)(2). The ALJ has a “clear duty”
to “give good reasons” for determining how much weight to give to a treating physician’s
opinion, which “must be ‘supported by the evidence in the case record, and . . . sufficiently
specific to make clear to any subsequent reviewers . . . the reasons for that weight.” Cole, 661
F.3d at 937 (quoting SSR 96-2P, 1996 WL 374188 (July 2, 1996)).
However, a violation of the good reasons rule can be deemed to be “harmless error”
if “(1) a treating source’s opinion is so patently deficient that the Commissioner
could not possibly credit it; (2) if the Commissioner adopts the opinion of the
treating source or makes findings consistent with the opinion; or (3) where the
Commissioner has met the goal of § 1527(d)(2) . . . even though she has not
complied with the terms of the regulation.”
Id. at 940 (alteration in original) (quoting Friend v. Comm’r of Soc. Sec., 375 F. App’x
543, 551 (6th Cir. 2010)).
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The Sixth Circuit has clarified that it is a “‘rare case’ where the ALJ has met the
‘goal’ of § 404.1527, ‘if not meeting its letter.’” Thaxton v. Comm’r of Soc. Sec., 815 F.
App’x 955, 960 (6th Cir. 2020) (quoting Nelson v. Comm’r of Soc. Sec., 195 F. App’x
462, 472 (6th Cir. 2006)); see also Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 749 (6th
Cir. 2007). An ALJ does not meet the goals of § 1527(d)(2) if she “leaves this Court
without a clear understanding of why the ALJ credited [or discredited the treating source]
opinion. Cole, 661 F.3d at 940. An “ALJ’s failure to provide any reasons for ignoring [a
treating source] opinion is reversible error” and does not meet the goals of § 1527(d)(2).
Wilson v. Comm’r of Soc. Sec., 783 F. App’x 489, 499 (6th Cir. 2019); see also Bowen,
478 F.3d at 750 (“[I]nvoking the harmless-error exception here—where the ALJ entirely
failed to address the primary treating source’s presumptively supportable opinion—
plainly risks having the exception swallow up the rule.”). Further, “a reason . . . that relies
on a mischaracterization of the record cannot be a good reason [for disregarding a
treating source’s opinion].” Smith v. Comm’r of Soc. Sec., 337 F. Supp. 3d 216, 223
(W.D.N.Y. 2018) (alterations in original) (quoting Wilson v. Colvin, 213 F. Supp. 3d 478,
485 (W.D.N.Y. 2016)).
Key and Tarter
Plaintiff’s objection stems from evaluations by two physicians at Danville Orthopaedics
& Sports Medicine, Dr. Charles C. Key and Dr. Jeremy W. Tarter. Drs. Key and Tarter saw
Plaintiff three times in early 2017 for issues with her shoulder and knee. On January 4, 2017, Dr.
Key first saw Plaintiff for pain in her left knee. [R. 15, pp. 426–27] He examined Plaintiff and
took x-rays of her knee, diagnosing her with “moderately severe left knee osteoarthritis.” Id. Dr.
Key concluded that “ultimately a knee replacement surgery will be her best chance at pain-free
function of the left knee” but recommended against it because of her age and obesity. Id. at 426.
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He referred her to Dr. Tarter for a second opinion. Id. On January 9, 2017, Dr. Key saw Plaintiff
again for pain in her shoulder. Id. at 424-25. He examined her and took an x-ray, ultimately
recommending physical therapy. Id. On January 24, 2017, Dr. Tarter saw Plaintiff on referral. Id.
at 423. He examined Plaintiff and reviewed her x-rays. Id. He concluded that Plaintiff “has
moderate osteoarthritis with peripheral osteophytes that are arthritic,” as well as “pretty
advanced patellofemoral disease although clearly this can be projectional.” Id. Dr. Tarter noted
that Plaintiff “works as a bus monitor and going up and down stairs is a real issue and will
continue to be so. Thus I do believe this problem will continue to affect her employability longterm.” Id.
After these visits, on May 1, 2017, Drs. Key and Tarter filled out a “Medical Source
Statement of Ability to Do Work-Related Activities,” which assessed Plaintiff’s ability to
perform a variety of functions. Id. at 498–501. Two items on that form are relevant here. First,
the form asks: “How often can the individual perform the following POSTURAL activities?” Id.
at 499. For “Climbing – ramps/stairs/ladder/rope/scaffold,” Drs. Key and Tarter checked the
“Never” box. Id. Second, in answer to the question, “[H]ow many hours total (with normal
breaks) can the individual stand and/or walk?” Drs. Key and Tarter checked the “less than 2
hours in an 8-hour workday” box. Id. at 498.
The ALJ discounted the opinions of Drs. Tarter and Key. Her analysis, in full, states:
The undersigned notes the claimant’s treating orthopedic surgeon Jeremy
Tarter, M.D., stated in January 2017 that, the claimant’s left knee problem would
affect her employability long-term (Exhibit 4F/1). However, opinions regarding the
claimant’s ability to work are reserved to the Commissioner, and as such are not
entitled to any special significant weight (20 CFR 404.1527(d) and 20 CFR
Then in May 2017, Dr. Tarter and fellow examining orthopedic surgeon
Charles Key, M.D. cosigned a medical source statement indicating the claimant
could lift and/or carry less than ten pounds occasionally and/or frequently; could
stand less than two hours in an eight-hour workday; had push/pull limitations;
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required the need to alternate between sitting and standing; had manipulative
limitations; but no environmental limitations (Exhibit 9F). Drs. Tarter and Key’s
opinions are not supported by the record. While objective imaging and clinical
findings showed some abnormalities, their opinion that the claimant cannot stand
more than two hours per day is inconsistent with her activities of daily living. For
example, the claimant reported that she worked approximately four hours per day
as a bus monitor, which reasonably requires standing more than two hours at one
time. In addition, their opinions that the claimant had manipulative and push/pull
limitations is inconsistent with her testimony that she has no problem using her
right upper extremity. Thus, Drs. Tarter and Key’s medical source statement is
afforded little weight.
Id. at 23 (emphasis added).
In the Report and Recommendation, Judge Lindsay found that the ALJ made several
errors with respect to the treating source analysis on Drs. Key and Tarter. Judge Lindsay noted
that the ALJ at one point refers to both Dr. Key and Dr. Tarter 1 as “examining orthopedic
surgeon[s]” and not treating physicians, that the ALJ “does not address how Dr. Key’s and Dr.
Tarter’s status as treating sources affected the analysis or extensively discuss by name any of the
§ 404.1527(c) and § 416.927(c) factors,” and that the ALJ discussed only two of the seven
required factors pursuant to §§ 404.1527(c) and 416.927(c). [R. 21, pp. 23–24] Nevertheless,
Judge Lindsay found that these errors were harmless because the ALJ had “met the goal of the
procedural safeguard of providing good reasons.” Id. at 24 (quoting Thaxton, 815 F. App’x at
960). Judge Lindsay found that the “decision still provides ‘sufficient reasons for giving less
weight to treating-source opinions’” because the ALJ provided specific reasons for affording
Drs. Key and Tarter’s statements little weight, including the improvement in the condition of her
right shoulder and Plaintiff’s testimony about the requirements of her bus monitor job. 2 Id. at
25–26 (quoting Thaxton, 815 F. App’x at 960).
At another point the ALJ refers to Dr. Tarter as Martin’s “treating orthopedic surgeon.” [R. 15, p. 23]
Judge Lindsay also noted that the Key and Tarter opinion was made through checking a box on a form,
although the ALJ fails to raise this issue in her analysis of Drs. Tarter and Key. [R. 24, p. 26; R. 15, p. 23]
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In her Objections, Plaintiff argues that the ALJ’s analysis of Drs. Key and Tarter’s
opinions was not harmless because the ALJ did not provide good reasons for affording the
opinions little weight. [R. 24, pp. 11–12] Plaintiff asserts that the ALJ did not address Plaintiff’s
stair-climbing limitation at all, so the ALJ cannot have provided good reasons for discounting
this opinion. Id. at 12. Plaintiff further asserts that her testimony on her bus monitor job did not
actually conflict with the 2-hour standing limitation of Drs. Key and Tarter because the job had a
six-hour break between shifts and included mostly sitting. [Id.; R. 15, pp. 53–54] Plaintiff also
argues that, even if the ALJ was entitled to reject Dr. Tarter’s opinion on her employability, the
ALJ was not entitled to disregard the underlying basis for that opinion—namely, that “going up
and down stairs is a real issue and will continue to be so.” [R. 24, p. 12; R. 15, p. 423]; see also
[R. 15, p. 499 (opinion of both Drs. Tarter and Key that Plaintiff can “never” climb stairs)]
Considering the requirements for finding harmless error in violating the treating source
rule, as well as the evidence in the record, the Court agrees with Plaintiff that the ALJ’s errors in
failing to evaluate Drs. Key and Tarter’s opinions are not harmless. It is clear that Drs. Key and
Tarter’s opinions are not patently deficient, nor did the ALJ make findings consistent with the
doctors’ opinion. Further, the ALJ’s analysis did not meet the goals of § 1527(d)(2). See Cole,
661 F.3d at 940. Though the ALJ gave specific reasons for concluding that their opinions were
“not supported by the record,” those reasons misconstrued the record and also addressed only
some aspects of Drs. Key and Tarter’s opinions. [R. 15, p. 23].
Specifically, the ALJ does not give reasons why Dr. Tarter’s January 24, 2017 opinion
that “going up and down stairs is a real issue,” [Id. at 423], and both doctors’ opinion that
Plaintiff can never climb stairs should be discounted. Id. at 499. The ALJ’s only mention of
Plaintiff’s issues climbing stairs comes in a different section of her opinion, where the ALJ notes
that Plaintiff’s work as a bus monitor, which includes climbing stairs on a bus, is inconsistent
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with Plaintiff’s allegations of disabling symptoms. Id. at 22. The ALJ notes that she cannot
accept Dr. Tarter’s opinions on Plaintiff’s employability, but the Court simply cannot tell how
and why the ALJ’s opinions regarding Plaintiff’s ability to climb stairs is only afforded little
weight. See Cole, 661 F.3d at 940; Wilson, 783 F. App’x at 499 (finding error not harmless
where the ALJ discredited one opinion of a treating physician but did not address a different
opinion from that physician); Williams ex rel. T.D.B. v. Soc. Sec. Admin., No. 3:19-CV-00064,
2020 WL 1161975, at *7 (M.D. Tenn. Feb. 14, 2020), report and recommendation adopted sub
nom. Williams v. Soc. Sec. Admin., No. 3:19-CV-00064, 2020 WL 1158141 (M.D. Tenn. Mar.
10, 2020) (same).
Further, the purported inconsistencies in the record cited by the ALJ are not inconsistent
with the doctors’ conclusions. In Wilson, the ALJ discounted a medical opinion in a
questionnaire filled out by the claimant’s treating psychologist, which asserted that there were
significant limitations in functioning, because the claimant testified that he enjoyed “mentally
stimulating puzzles.” Wilson, 213 F. Supp. 3d at 484. The reviewing court found that the ALJ
erred by mischaracterizing the claimant’s abilities—since the record showed the claimant could
only do puzzles for 15 minutes before getting frustrated—and remanded the case back to the
Commissioner based on the ALJ’s failure to give good reasons for not affording controlling
weight to treating source opinions. Id. at 484–91; see also Roden v. Comm’r of Soc. Sec., 389 F.
Supp. 3d 548, 553–54 (S.D. Ohio 2019) (finding error and remanding where ALJ found a
treating physician’s opinion to be inconsistent with the claimant’s reported symptoms, when the
record showed that the opinion and the symptoms did not conflict).
This case is like Wilson and Roden. The ALJ asserts that the doctors’ opinion on
Plaintiff’s ability to stand is inconsistent with the record because of Plaintiff’s job as a bus
monitor, which “reasonably requires standing more than two hours at one time.” [R. 15, p. 23]
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But there is no evidence in the record to indicate that Plaintiff stands for more than two hours in
an eight-hour span; instead, Plaintiff testified that she sits for most of her two-hour shifts as a bus
monitor, and she has a 6-hour break between her two shifts (so that her total standing time was
stretched over 10 hours). Id. at 53–54. And to the extent the ALJ attempted to discount the
doctors’ opinion on Plaintiff’s ability to climb stairs with evidence of Plaintiff climbing stairs on
a bus, Plaintiff’s ability to climb a few steps on a bus need not be inconsistent with a total
inability to climb a flight of stairs. See id. at 22. Like Wilson, the ALJ erred by failing to take
into account key facts of Plaintiff’s testimony (the 6-hour break in between shifts and the
infrequency with which Plaintiff stood on the job) in using Plaintiff’s testimony to discount a
treating source opinion. See Wilson, 213 F. Supp. 3d at 485. And like in Roden, the
Commissioner here asserted there was an inconsistency between the treating source opinion (that
Plaintiff could not stand for more than 2 hours in an 8-hour workday) and the rest of the record,
but the record does not reflect any such inconsistency. See Roden, 389 F. Supp. 3d at 554.
In sum, the Commissioner has failed to “give good reasons” for why the opinions from
Drs. Key and Tarter, treating source doctors, should be discounted. The Commissioner wholly
failed to address Dr. Tarter’s January 24, 2017 opinion on Plaintiff’s ability to climb stairs,
supported by the later opinion of both Drs. Tarter and Key on this issue. [R. 15, pp. 423, 499]
Further, the ALJ did not accurately characterize the evidence used to support her assertion that
Drs. Key and Tarter’s opinion that Plaintiff could not stand for more than 2 hours in an 8-hour
workday is “not supported by the record.” Id. at 23. This case is not the “rare case” where the
ALJ met the “goal” of § 404.1527 if not the letter. Thaxton, 815 F. App’x at 960 (quoting Nelson
v. Comm’r of Soc. Sec., 195 F. App’x 462, 472 (6th Cir. 2006)).
The Court reviewed the remainder of Plaintiff’s Objections to the Corrected Report and
Recommendation, and generally finds them unpersuasive. Nevertheless, because the Court is
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remanding this matter for the ALJ to consider the opinions of Plaintiff’s treating physicians, the
Court will require the ALJ to address the remainder of Plaintiff’s Objections on remand.
Based on the Court’s review of the Commissioner’s decision, the Court cannot find that it
is made in accordance with proper legal standards. Cole, 661 F.3d at 940. The Court will reverse
and remand the decision of the Commissioner under sentence four of 42 U.S.C. § 405(g) for
further proceedings consistent with this decision. Melkonyan v. Sullivan, 501 U.S. 89, 101 (1991)
(explaining where the Commissioner “has failed to provide a full and fair hearing, to make
explicit findings, or to have correctly [applied] the law and regulations” a district court may
reverse and remand under sentence four of § 405(g)).
Accordingly, for the reasons stated above,
IT IS ORDERED as follows:
The Magistrate Judge’s Corrected Report and Recommendation [R. 21] is
REVERSED in part.
Plaintiff Shirley Martin’s Objections to the Report and Recommendation [R. 24]
are SUSTAINED IN PART.
The decision of the Commissioner is REVERSED and REMANDED under
sentence four of 42 U.S.C. § 405(g).
A judgment will be entered contemporaneously with this Order.
This the 8th day of September, 2021.
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