Gonzalez v. Commissioner of Social Security
Filing
20
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GUADELUPE C. GONZALEZ,
Plaintiff,
Case No. 1:14-CV-0718
v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY
Defendant,
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Guadelupe Chavez Gonzalez1 seeks review of the Commissioner’s
decision finding her disabled as of November 14, 2011, but not before.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
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The filings are inconsistent regarding the spelling of plaintiff’s first name. For the sake of
consistency, the Court follows the spelling as it appears on the docket.
The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide
questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the
Commissioner who is charged with finding the facts relevant to an application for disability benefits,
and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C.
§ 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations
omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342,
347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the
evidence on the record as a whole and take into account whatever in the record fairly detracts from
its weight. See Richardson v. Sec’y of Health and Human Services, 735 F.2d 962, 963 (6th Cir.
1984). As has been widely recognized, the substantial evidence standard presupposes the existence
of a zone within which the decision maker can properly rule either way, without judicial interference.
See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords
to the administrative decision maker considerable latitude, and indicates that a decision supported
by substantial evidence will not be reversed simply because the evidence would have supported a
contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was 53 years old on the date of her alleged disability onset. (A.R. 137). She
was born on April 22, 1957, obtained a GED, and previously worked as a production assembler.
(A.R. 29, 58). On June 2, 2011, plaintiff filed for disability insurance benefits (DIB) under Title II
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of the Social Security Act. (A.R. 135). Plaintiff’s application alleged an onset date of April 26,
2010, and stated that she suffered from rotator cuff issues on both shoulders as the result of an
alleged work injury. (A.R. 69, 137).
The Commissioner determined that plaintiff met the requirements of the Act as of
November 14, 2011, but not before, because plaintiff became “as of advanced age” on that date.
(A.R. 80, 88); see 20 C.F.R. Part 404, Subpart P, App. 2, Table 2, § 202.01. Plaintiff thereafter
sought a hearing before an administrative law judge (ALJ), alleging that she should be found to be
disabled as of April 26, 2010 because she only had the residual functional capacity (RFC) for
sedentary, rather than light, work. If plaintiff was determined to have the RFC for sedentary work,
a finding of disabled would follow from application the portion of the regulations commonly known
as the “grids.” See 20 C.F.R. Part 404, Subpart P, App. 2, Table 1, § 201.12. On January 7, 2013,
plaintiff appeared with her counsel at an administrative hearing before ALJ Angelita Hamilton in
which both plaintiff and a vocational expert (VE) testified (A.R. 26). On February 4, 2013, ALJ
Hamilton issued her written decision finding plaintiff had a RFC for light work and which further
found plaintiff was not disabled under the Act between April 26, 2010 and November 14, 2011.
(A.R. 8). The Social Security Appeals Council declined to review the ALJ’s decision on May 5,
2014, making it the Commissioner’s final decision. (A.R. 1-4). Plaintiff thereafter commenced this
action.
ALJ’S DECISION
A claimant must prove that she suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
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be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months. See 20 C.F.R. §§ 404.1505 and 416.905; Abbott v. Sullivan, 905 F.2d
918, 923 (6th Cir. 1990). To aid ALJs in applying the above standard, the Commissioner of Social
Security has developed a five-step analysis:
The Social Security Act requires the Secretary to follow a “five step
sequential process” for claims of disability. First [a] plaintiff must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, [a] plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if [a] 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, [a] plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff’s impairment does not prevent
her from doing her past relevant work, [a] plaintiff is not disabled. 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 [the] plaintiff can
perform, plaintiff is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
If at any step, the ALJ finds that the individual is not disabled, she makes her determination and does
not go on to the next step. 20 C.F.R. § 404.1520(a)(4).
The plaintiff has the burden of proving the existence and severity of limitations
caused by his impairments and that she is precluded from performing past relevant work through step
four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). At step five, it
is the Commissioner’s burden “to identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity (determined at step four) and vocational
profile.” Id.
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The ALJ determined plaintiff’s claim failed at the fifth step of the evaluation. The
ALJ initially found that plaintiff had not engaged in substantial gainful activity since April 26, 2010.
(A.R. 13). Second, the ALJ determined that plaintiff had the severe impairments of: (1) right rotator
cuff repair, left shoulder disorder, and obesity. (A.R. 13). At the third step, the ALJ considered
whether the plaintiff met a listed impairment and found that plaintiff did not have an impairment or
combination of impairments that met or equaled the requirements of the Listing of Impairments in
20 C.F.R. Pt. 404, Subpt. P, App. 1. (A.R. 13-14).
With respect to plaintiff’s residual functional capacity (RFC), the ALJ determined
that between April 26, 2010, and November 13, 2011, plaintiff had the RFC:
to perform light work as defined in 20 CFR 404.1567(b), with some
additional limitations. More specifically, she was able to lift and carry up to
20 pounds occasionally and 10 pounds frequently, stand and/or walk for a
total of up to six hours in an eight-hour workday, and sit for a total of up to
six hours in an eight-hour workday. She was limited to no more than
occasional climbing of ramps or stairs, balancing, stooping, kneeling,
crouching, crawling, reaching overhead bilaterally, and pushing and pulling
bilaterally; and she could not climb ladders, ropes or scaffolds.
(A.R. 14).
Continuing with the fourth step, the ALJ determined that plaintiff was unable of
performing any past relevant work. (A.R. 18). At the fifth step, the ALJ used the VE’s testimony
from the administrative hearing to determine whether a significant number of jobs exist in the
economy which a person similar to plaintiff could perform. (A.R. 18-19); see Richardson, 735 F.2d
at 964. The VE testified that there existed approximately 50,100 regional jobs (that is, jobs in the
State of Michigan) and 427,000 national jobs that a person could perform. (A.R. 58-59). The VE
testified that this work included jobs as a parking lot cashier and a table worker. (A.R. 59). This
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represents a significant number of jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988);
McCormick v. Sec'y of Health & Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
Accordingly, the ALJ found plaintiff was not disabled through November 14, 2011.
ANALYSIS
Plaintiff argues that based on her age and lack of transferrable skills during the time
period at issue, Medical–Vocational Rule 201.12 would require a finding of disability if Plaintiff
were limited to sedentary work between the date of her injury and November 14, 2011. See 20
C.F.R. Part 404, Subpart P, App. 2. Plaintiff contends that the ALJ’s determination that plaintiff had
the RFC to perform light work is without substantial evidence because: the ALJ failed to give
controlling weight to the opinion of Dr. Robert Highhouse, M.D., a treating orthopaedic physician,
and alternatively assigning too much weight to the opinion of Dr. James Grannell, D.O.; the ALJ
mischaracterized the record; and finally the ALJ’s hypothetical to the VE did not account for the
time plaintiff would be off work due to physical therapy. (Dkt. #14, PageID 678-81). The Court
will discuss the issues below.
A.
Treating Physician Rule
On July 28, 2010 and September 9, 2010, Dr. Highhouse found that plaintiff was
impaired to a greater extent than that found in the ALJ’s RFC. Specifically, Dr. Highhouse stated
that plaintiff was limited to lifting a maximum of ten pounds with her left arm and was restricted
from any overhead activity with her left arm. (A.R. 616, 620). Throughout the period at issue,
Dr. Highhouse issued similar notes, sometimes taking plaintiff off work all together (A.R. 567) and
other times imposing further lifting restrictions on plaintiff’s left arm and adding restrictions on
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plaintiff’s right arm. (A.R. 558). The ALJ discussed the July 28, 2010 and September 9, 2010 notes
as follows:
[I]n July 2010 and September 2010, Robert Highhouse, M.D., noted that the
claimant could return to work later that month but was limited with regard to
her ability to lift with her left arm (no more than 10 pounds) and could not
perform any overhead activity with her left arm. He noted no other functional
limitations (Exh. 15F/82, 86). This opinion is given some weight to the
extent that it is consistent with both the claimant’s RFC and the evidence of
record, which shows some complaints of pain in both shoulders but does not
indicate that she had any significant limitation in her right arm on either
occasion.
(A.R. 16). Plaintiff argues that she is entitled to relief on the ground that the ALJ failed to give
appropriate weight to the opinion in question.
The treating physician doctrine recognizes that medical professionals who have a long
history of caring for a claimant and her maladies generally possess significant insight into her
medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). An ALJ must, therefore,
give controlling weight to the opinion of a treating source if: (1) the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques” and (2) the opinion “is not
inconsistent with the other substantial evidence in the case record.” Gayheart v. Commissioner of
Social Security, 710 F.3d 365, 375-76 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527). It is
undisputed that Dr. Highhouse qualifies as a “treating source.” See 20 C.F.R. § 404.1502 (defining
“treating source”).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health and Human Services, 1991 WL 229979 at
*2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services, 839 F.2d 232,
235 n.1 (6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where such is
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unsupported by the medical record, merely states a conclusion, or is contradicted by substantial
medical evidence. See Cohen, 964 F.2d at 528; Miller v. Sec’y of Health and Human Services, 1991
WL 229979 at *2 (6th Cir., Nov. 7, 1991) (citing Shavers v. Sec’y of Health and Human Services,
839 F.2d 232, 235 n.1 (6th Cir. 1987)); Cutlip v. Sec’y of Health and Human Services, 25 F.3d 284,
286-87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” This requirement “ensures that the ALJ applies the treating physician
rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting Wilson v.
Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Gayheart, 710 F.3d at 376-77. After its review, the Court finds the ALJ failed
to give “good reasons” for assigning Dr. Highhouse’s opinion only “some weight.”
It is patent that Dr. Highhouse opined plaintiff was restricted to a greater extent than
that recognized by the ALJ. The RFC, for example, allowed for overhead reaching with both arms,
while Dr. Highhouse noted plaintiff was limited from using her left arm for any overhead activity.
(A.R. 14, 616). While the ALJ gave the opinion some weight to the extent it was consistent with the
RFC, it is clear that the ALJ failed to provide “good reasons” why those restrictions which were
inconsistent with the RFC were not entitled to controlling weight. The ALJ merely noted that
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portions of Dr. Highhouse’s opinion were consistent with the RFC, but provided no further
discussion. (A.R. 16). Defendant attempts to bolster the ALJ’s analysis by noting how the opinion
of Dr. Highhouse is inconsistent with his treatment notes. (Dkt. #17, PageID 697-99). This,
however, is exactly the type of analysis that should have been conducted by the ALJ. Because the
ALJ failed to articulate “good reasons” for giving Dr. Highhouse’s opinion less than controlling
weight, the ALJ’s RFC determination is not supported by substantial evidence. Accordingly, this
case will be remanded under sentence four of § 405(g). On remand, the Commissioner should
reevaluate the RFC and determine whether “good reasons” exist for giving less than controlling
weight to the opinion of Dr. Highhouse.
B.
Dr. Grannell
Plaintiff separately claims that the ALJ erred by assigning too much weight to the opinion
of Dr. Grannell. On January 12, 2011, Dr. Grannell opined that plaintiff’s reports of pain were not
supported by objective evidence, specifically pointing to a lack of atrophy in plaintiff’s shoulders
and plaintiff’s lack of effort to raise her arms, but ability to do so when encouraged. Dr. Grannell
further stated that he believed plaintiff could return to work and could lift weights of up to thirty
pounds, so long as plaintiff did not lift them any higher than breast level. (A.R. 235-26). The ALJ
assigned “great weight” to Dr. Grannell’s opinion. (A.R. 16). Plaintiff claims the ALJ gave too
much weight to the opinion because Dr. Grannell had an ulterior motivation as a workers
compensation consultant and the ALJ incorrectly cited a social security ruling that was inapplicable
to Dr. Grannell. This is not sufficient to establish error.
An ALJ may consider the opinion of a physician who examined a plaintiff in connection to
a workers compensation claim. Hoskins v. Comm'r of Soc. Sec., 106 F. App'x 412, 414 (6th Cir.
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2004). Thus the ALJ was free to consider Dr. Grannell’s and to determine what weight, if any, to
give it. 20 C.F.R. § 404.1527; Ward v. Comm'r, Soc. Sec., 72 F.3d 131 (6th Cir. 1995) (finding no
evidence that the physicians who saw a plaintiff in connection to a workers compensation claim were
unreliable or tainted). Moreover, the fact that the ALJ may have given the opinion greater weight
than that of plaintiff’s treating physicians is not error. Brooks v. Commissioner, 531 F. App’x 636,
642 (6th Cir. 2013) (“[I]n appropriate circumstances, opinions from State agency medical and
psychological consultants . . . may be entitled to greater weight than the opinions of treating or
examining sources.”). In this case, the ALJ decided to assign great weight to the opinion because
it was consistent with other portions of the medical record. Specifically the ALJ noted the opinion
was consistent with treatment notes that showed plaintiff’s left shoulder had “healed” such that it
was able to be used without limits, and that plaintiff’s right shoulder had a full range of motion.
(A.R. 16, 225, 316). The Court thus finds the ALJ did not err in giving great weight to
Dr. Grannell’s decision.
At the end of the paragraph discussing Dr. Grannell’s opinion, the ALJ cited to a
social security ruling and the regulations. Specifically, the ALJ cited to SSR 96-2P which gives
guidance regarding the treatment of treating physician’s opinions. See Titles II & XVI: Giving
Controlling Weight to Treating Source Med. Opinions, SSR 96-2P (S.S.A. July 2, 1996). Defendant
agrees that the ruling is inapplicable to Dr. Grannell’s opinion. (Dkt. #17, PageID 702). On these
facts, however, the Court cannot conclude that the ALJ improperly thought Dr. Grannell was a
treating source. At most, it appears the ALJ made a typographical error. The ALJ never referred to
Dr. Grannell as a treating physician, nor stated he was required to give Dr. Grannell’s opinion
controlling weight. Notably, the ALJ did not provide any “good reasons” for giving the opinion less
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than controlling weight, rather the ALJ only noted how the opinion was supported elsewhere in the
record. In sum, substantial evidence supports the ALJ’s treatment of Dr. Grannell’s opinion, and
plaintiff’s claim fails.
C.
The ALJ Did Not Mischaracterize the Record.
Plaintiff next claims the ALJ “seemed to parse out snippets of medical records here
and there to support her finding while ignoring the legion of evidence that supports a finding of
disability.” (Dkt #14, Page ID 678). In other words, plaintiff claims the ALJ mischaracterized or
cherry-picked from the record in order to find plaintiff not to be disabled. This argument is
frequently made and seldom successful, because “the same process can be described more neutrally
as weighing the evidence.” White v. Commissioner, 572 F.3d 272, 284 (6th Cir. 2009). The narrow
scope of judicial review of the Commissioner's final administrative decision does not include
re-weighing evidence. See Ulman v. Commissioner, 693 F.3d 709, 2012 WL 3871353, at * 4; Bass
v. Mahon, 499 F.3d 506, 509 (6th Cir.2007).
Plaintiff's argument that the ALJ mischaracterized this administrative record is without merit.
The purported instance of cherry-picking appears in treatment notes from Gregory Cassidy, a
physician’s assistant,2 dated October 4, 2010. At the examination, plaintiff complained of right
shoulder pain which she believed was caused by overcompensating for her injury to the left shoulder.
(A.R. 225) Mr. Cassidy noted that:
2
As a physician’s assistant, Mr. Gregory is not considered an acceptable medical source. See 20
C.F.R. §§ 404.1502; 404.1513(a); Dykes v. Colvin, 2014 WL 585319 at *3 (W.D.Ky., Feb.13, 2014).
Nevertheless, physician's assistants and other unacceptable medical sources, are permitted to offer statements
regarding “the severity of [a claimant's] impairment(s) and how [such] affects [her] ability to work.” See, e.g.,
20 C .F.R. §§ 404.1513(d); 416.913(d).
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[e]xam with attention to the right shoulder shows normal shoulder contours.
She complains of discomfort with palpation to the anterior portion of the
shoulder. She verbalizes discomfort with all ranges of motion of the shoulder
although it seems to be good range of motion. Able to elevate her hand up
above her head with no impingement noted. However, she verbalizes
discomfort with this.
(A.R. 225). The ALJ summarized the above by stating: “Upon physical examination, [plaintiff]
verbalized pain with all ranges of motion of the shoulder, although she demonstrated no significant
physical limitation in that regard. She was also able to elevate her right hand above her head with
no noted impingement.” (A.R. 15). The ALJ’s statement is entirely accurate. Plaintiff argues that
the ALJ’s discussion made “it appear as though [she] was having no physical limitation in the
shoulder.” (Dkt. #14, Page ID 679). This criticism is unfounded. The ALJ clearly noted, as
Mr. Cassidy did, that plaintiff had a good range of motion during the examination, though she
experienced pain when doing so. The ALJ did not mischaracterize the record, and plaintiff’s claim
fails.
D.
Substantial Evidence Supports the ALJ’s Step 5 Analysis.
Plaintiff’s final claim is that the ALJ’s hypothetical to the VE was flawed because
it should have accounted for the time plaintiff attended physical therapy sessions and rehabilitation
after surgery. (Dkt. #14, PageID 680-81). An ALJ’s finding that a plaintiff possesses the capacity
to perform substantial gainful activity that exists in the national economy must be supported by
substantial evidence that the plaintiff has the vocational qualifications to perform specific jobs.
Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). This evidence
may be produced through the testimony of a VE in response to a hypothetical question which
accurately portrays the claimant’s physical and mental limitations. See Webb v. Commissioner of
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Social Security, 368 F.3d 629, 632 (6th Cir. 2004); Varley, 820 F.2d at 779. However, a hypothetical
question need only include those limitations which the ALJ accepts as credible. See Blacha v.
Secretary of Health and Human Services., 927 F.2d 228, 231 (6th Cir. 1990).
At the administrative hearing, plaintiff’s attorney posed a hypothetical to the VE in
which someone similar to plaintiff would be off-work three days a week for at least two hours. The
VE responded that there would be no work available. (A.R. 61). Plaintiff argues that the VE’s
testimony is substantial evidence that there was not a significant number of jobs plaintiff could
perform, and thus she should be found disabled under step five of the sequential analysis. As noted
above, however, the ALJ need only question a VE regarding those limitations which are credible.
There is no indication in the record that plaintiff’s allegation she would be off work for two hours
a day, three days a weak, is credible. Contrary to plaintiff’s assertion, her therapy sessions did not
last two hours. Most ranged from forty five minutes to an hour. (A.R. 355, 356, 366) and some were
as short as thirty minutes (A.R. 367, 372). Moreover, many of these sessions occurred either at 7 AM
or 7 PM—well outside the range of a normal workday, and demonstrating that plaintiff could
schedule her sessions around her work. (A.R. 418, 420, 421, 423, 424, 425). Accordingly, the ALJ
was not required to include these limitations into her step five analysis, and plaintiff’s claim fails.
CONCLUSION
Plaintiff asks the court to order the Commissioner to award DIB and SSI benefits.
(Dkt. #14, PageID 681). “[T]he court can reverse the [Commissioner's] decision and immediately
award benefits only if all essential factual issues have been resolved and the record adequately
establishes a plaintiff's entitlement to benefits.” See Faucher v. Secretary of Health & Human Servs.,
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17 F.3d 171, 176 (6th Cir.1994). “A judicial award of benefits is proper only where the proof of
disability is overwhelming or where the proof of disability is strong and evidence to the contrary is
lacking.” Id.; see Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir.1985); see also Kalmbach v.
Commissioner, 409 F. App'x 852, 865 (6th Cir.2011). Here, the Commissioner's decision is being
reversed because the ALJ failed to properly consider the opinion of Dr. Highhouse, not because the
record strongly establishes plaintiff's entitlement to benefits.
For the reasons discussed, then, the Commissioner’s decision will be VACATED and
REMANDED. A separate Judgment shall issue.
Dated:
October 28, 2015
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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