Matthews v. Commissioner of the Social Security Administration

Filing 21

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 2/11/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Malisia N. Matthews,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:14-cv-1839

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Malisia N. Matthews, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for social security disability benefits
and supplemental security income.

Those applications were filed

on September 28, 2011 and October 13, 2011, respectively, and
alleged that Plaintiff became disabled on October 11, 2008 (which
date was later amended to September 28, 2011).
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on April 25, 2013.

In a decision dated May 22, 2013, the

ALJ issued a decision denying benefits.

That became the

Commissioner’s final decision on August 8, 2014, when the Appeals
Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on December 19, 2014.

Plaintiff filed her

statement of specific errors on March 23, 2015, to which the
Commissioner responded on June 26, 2015.

No reply brief was

filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 40 years old at the time of the
administrative hearing and who has an associates degree in

business, testified as follows.

Her testimony appears at pages

57-73 of the administrative record.
Plaintiff first testified that she last worked on November
29, 2010.

After that date, she attempted work with the Salvation

Army but could not do the lifting which was required.

Her last

job was as a receptionist, and she received unemployment
compensation after she stopped working.
The ALJ asked Plaintiff to explain her symptoms.

In

response, she said that she had back pain which affected her
ability to stand, sit, or bend.

It radiated into her legs.

She

had taken medications which made it hard for her to work and she
was pursuing other treatments.
ability to drive.

The medications affected her

She did not lift more than ten pounds or stand

more than two hours, and sitting for more than two or three hours
was a problem as well.

She would lie down two or three times

daily for about an hour each time.

Plaintiff could climb stairs

with difficulty and she had memory and focus problems.

Being

around large numbers of people caused stress.
Plaintiff said she could shower, dress, cook occasionally,
and do dishes.

She did not do laundry.

online, but only one at a time.

She was taking classes

Other than schoolwork, she

typically went to doctors’ appointments, to church, or to
vocational services.

She also said that she suffered from

migraine headaches two or three times per week which lasted from
fifteen minutes to two hours, and she had to lie down when a
headache came on.

Additionally, she was seeing a counselor and a

psychiatrist and took medication for anxiety.

She was going to

continue efforts to find work through vocational services, but
that had to wait until after she had injections for her back
problem.
III.

The Medical and Educational Records

The medical records in this case are found beginning on page
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345 of the administrative record.

The pertinent records can be

summarized as follows.
A.

Physical Impairments

Plaintiff was treated throughout 2010 and 2011 for chronic
back pain.

A note from 2012 shows that her diagnoses at that

time included lumbago, sprain and strain, sciatica, a herniated
nucleus pulposus, degenerative disc disease, spondylosis, lumbar
facet syndrome, cervicalgia, radiculopathy, anxiety, and sleep
disturbance.

Various treatment modalities were discussed with

her at that time and she was given medications.
mention was made of a knee impairment.

(Tr. 655).

No

A back x-ray taken in

2012 showed some facet degeneration with the main disc finding
being at L5-S1, but without serious canal or foraminal stenosis.
(Tr. 702).
Plaintiff was treated for left knee pain beginning in July,
2012.

She was having difficulty bending her knee and walking up

stairs.

It had been swollen but the swelling had gone down on

its own.

The knee was tender to palpation and there was some

limitation on range of motion.

She was given a home exercise

program and the knee was iced.

(Tr. 804-06).

In a physical

evaluation report prepared on March 30, 2013, for the Bureau of
Vocational Rehabilitation, Dr. Woskobnick did not diagnose any
knee condition, however, although he did note bilateral decrease
in the range of motion of the knees.

Plaintiff could not do a

deep knee bend and she could not toe, heel, or tandem walk.

He

did diagnose chronic back pain, among other things, and concluded
that she could stand and walk from 1-4 hours in a workday, sit up
to 8 hours, lift up to ten pounds occasionally, could
occasionally push or pull and bend, and could never squat, crawl,
or climb.

(Tr. 915-18).

State agency physicians also weighed in on the question of
Plaintiff’s physical limitations.
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Dr. Thomas, the first of the

two, concluded that Plaintiff had the ability to perform a full
range of medium work.

(Tr. 95).

The second, Dr. Vasiloff,

disagreed, finding that Plaintiff could do only a limited range
of light work, with a number of postural restrictions due to
Plaintiff’s degenerative disk disease and obesity.
B.

(Tr. 124-26).

Mental Impairments

Dr. Bobba, a psychiatrist, filled out a mental status report
on December 6, 2011, indicating that Plaintiff had poor
concentration and short-term memory and had a poor ability to
carry out various work-related functions.
treated Plaintiff for about a month.

At that time, she had

(Tr. 614-16).

That report

was preceded by an intake assessment dated October 13, 2011,
showing that Plaintiff was concerned about depression,
irritability, and crying spells.

Her symptoms had increased

since she separated from her husband several months before.

Her

mood and affect were depressed and she cried throughout the
assessment.

She was diagnosed with a depressive disorder and an

anxiety disorder and her GAF was rated at 50.
for weekly counseling sessions.

She was scheduled

(Tr. 619-23).

Dr. Bobba completed another evaluation form on May 29, 2012,
indicating a number of work-preclusive limitations, including the
need to miss about four days of work per month, extreme
limitations in the areas of concentration, persistence, and pace,
and an inability to meet work standards in many other areas.
same GAF rating of 50 appears in this report.

The

(Tr. 747-52).

The record also contains a large number of treatment notes
from Plaintiff’s mental health providers, including Dr. Bobba.
Plaintiff has summarized them in her statement of errors, see
Doc. 3, at 3-11.

That is a generally accurate summary and shows

that Plaintiff demonstrated symptoms such as increased
psychomotor activity, anxious and irritable mood, labile and
variable affect, and memory difficulties.
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Her attention and

concentration were indicated as abnormal, and at times she
demonstrated pressured speech.

She was treated with Zoloft,

Abilify, and Tradnozone (for problems sleeping).
Two state agency reviewers also expressed opinions about
Plaintiff’s residual functional capacity from a psychological
standpoint.

Dr. Warren, a psychologist, found that Plaintiff had

some concentration and persistence limitations which affected her
ability to carry out detailed instructions and maintain
concentration and attention for extended periods, and also had
restrictions on her ability to deal with others.

She was also

moderately limited in her ability to respond to changes in the
work setting.

However, with these limitations, she could still

perform work with low production demands or quotas as long as she
had only superficial contact with others.

(Tr. 96-97).

Marlow, another psychologist, concurred.

(Tr. 141-42).

IV.

Dr.

The Vocational Testimony

Eric Pruitt was called to testify as a vocational expert.
His testimony begins at page 73 of the administrative record.
Mr. Pruitt described Plaintiff’s past employment as a
receptionist, which was sedentary and semi-skilled; as a mail
sorter, a light, unskilled job; as a bindery worker, which was
light and semi-skilled; as a housekeeping cleaner and kitchen
assistant at a hotel, both unskilled jobs (one light and one
medium); as a mental retardation aide, a medium, skilled
position; as a rubber goods assembler, which was light and
unskilled; as a hand packager, which was medium and unskilled;
and, finally, as a domestic babysitter, a job which was semiskilled and performed at the medium strength level.

Many of

these jobs were short-term and might not have constituted
substantial gainful activity.
Mr. Pruitt was then given a hypothetical question which
asked him to identify any jobs which could be done by someone who

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could lift and carry at the light exertional level, stand and
walk for four hours in an eight-hour workday and sit for six,
occasionally climb ramps and stairs but never ladders, ropes or
scaffolds, frequently balance and stoop, and occasionally kneel,
crouch, or crawl.

The person also had to avoid unprotected

heights and hazardous machinery.

From a psychological

standpoint, the person could understand, remember, and carry out
simple and some detailed and complex tasks and job instructions
(up to four steps) and could sustain concentration and
persistence for minimum two-hour periods.

He or she could also

have occasional interaction with supervisors, co-workers, and the
general public, could respond appropriately to infrequent changes
in the workplace, and was limited to jobs that did not require
strict production quotas or production work pace, although goaloriented work was acceptable.

Mr. Pruitt responded that such a

person could do Plaintiff’s past job as a mail sorter, but none
of her other past jobs.

He or she could also work as a mail

clerk, a labeler, and an office helper, however.
A second hypothetical question was then asked, which
described someone who was limited to lifting, carrying, pushing,
and pulling only ten pounds.

The other restrictions were the

same as in the first question except stooping was limited to
occasional and the person could never kneel, crouch, or crawl.
According to Mr. Pruitt, that person could not do any of
Plaintiff’s past jobs, but could work as an addresser, printed
circuit board inspector, or gauger.

He gave numbers for all of

these jobs as they existed in the regional, State, or national
economies.
Next, Mr. Pruitt was asked about absenteeism.

He said that

an absence from work once every six or seven weeks was
acceptable, but that missing two days each month would preclude
long-term employment.

Being off task more than 15% of the time

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would have the same effect.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 3345 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through September 30, 2015.

Next, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since
her amended onset date of September 28, 2011.

Going to the

second step of the sequential evaluation process, the ALJ
concluded that Plaintiff had severe impairments including back
disorders, obesity, depression, and anxiety.

The ALJ also found

that these impairments did not, at any time, meet or equal the
requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to

lift, push, pull, and carry at the light exertional level,

stand and walk for four hours in an eight-hour workday, sit for
six, occasionally climb ramps and stairs but never ladders, ropes
or scaffolds, frequently balance and stoop, and occasionally
kneel, crouch, or crawl.

She also had to avoid unprotected

heights and hazardous machinery.

From a psychological

standpoint, Plaintiff could understand, remember, and carry out
simple and some detailed and complex tasks and job instructions
(up to four steps) and could sustain concentration and
persistence for minimum two-hour periods.

She could also have

occasional interaction with supervisors, co-workers, and the
general public, could respond appropriately to infrequent changes
in the workplace, and was limited to jobs that did not require
strict production quotas or production work pace, although goal-

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oriented work was acceptable.

With these restrictions, the ALJ

concluded that Plaintiff could perform her past mail sorter job
and she could do those light jobs identified by the vocational
expert, including mail clerk, office helper, and labeler.

The

ALJ also found that those jobs existed in significant numbers, as
testified to by the vocational expert.

Consequently, the ALJ

determined that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises three
issues: (1) the ALJ erred in the weight assigned to the opinion
of the treating psychiatrist, Dr. Bobba; (2) the ALJ erred in the
weight assigned to the opinion of one of the consultative
examiners, Dr. Woskobnick; and (3) the ALJ erred by finding that
Plaintiff’s left knee condition was not a severe impairment and
by not factoring limitations caused by that condition into the
residual functional capacity finding. These issues are evaluated
under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

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account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Dr. Bobba’s Opinion

As in any case where the ALJ’s rationale in rejecting the
opinion of a treating source is called into question, it is
helpful to explain exactly what the ALJ decided.

Here is what

the ALJ said about Dr. Bobba’s opinion.
The ALJ first commented that “nothing in [Dr. Bobba’s]
treatment notes support (sic) the finding the claimant was unable
to perform all work activity.”

(Tr. 41).

The ALJ then reviewed

the evidence concerning activities of daily living, social
functioning, and memory, concentration, persistence, and pace,
finding that Plaintiff could carry out general activities of
daily living, did not demonstrate any social dysfunction, did not
demonstrate disordered thought processes, cognitive dysfunction,
or intellectual deficits or any psychosis, tangential/
circumstantial thought, loose associations, excessive paranoia,
or excessive hallucinations or delusions, and was pursuing a
bachelor’s degree in criminal justice.

(Tr. 41).

Turning specifically to Dr. Bobba’s opinions, the ALJ first
gave great weight to the views of the state agency psychologists,
finding that they were “consistent with the claimant’s level of
functioning demonstrated throughout the record and the generally
unremarkable mental status evaluations.”

(Tr. 42).

The ALJ then

gave very little weight to Dr. Bobba’s opinion, reasoning that
his [sic] opinions are inconsistent with the totality
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of evidence, specifically the claimant’s own account of
her abilities. The claimant sated she is adequately
able to follow instructions (6E). At application, she
indicated she was working towards completing her
Bachelor’s degree in criminal justice by taking online
courses (8F/9). She reported she spends a considerable
amount of time reading and up to three hours a day,
three days a week on the computer completing coursework
(6E and testimony). Furthermore, she testified she is
actively involved with vocational rehabilitation
services to secure employment. In addition, she shops
in stores and attends church (6E and testimony). The
claimant even reported she feels better around people
(8F/8). She also noted she did not have any
difficulties with authority figures and she has never
been terminated from employment due to limitations in
social functioning (6E). More importantly mental
status exams are generally unremarkable and the
claimant indicated that her medication has improved her
symptoms (1F-32F and testimony). These inconsistencies
reduce the overall reliability of Dr. Bobba’s opinions.
Although the undersigned finds the claimant is not
capable of unrestricted work, the entirety of the
record dose not substantiate the restrictive assessment
provided by Dr. Bobba.
(Tr. 42).
Plaintiff makes several arguments about why this
discussion is inadequate or unsupported.

She claims that

the ALJ “cherry-picked” the record to find statements
concerning her ability to function from a psychological
standpoint, stressing those statements which are consistent
with a mild to moderate impairment, and ignoring those
showing that Plaintiff’s limitations were more severe.

In a

similar vein, Plaintiff contends that the ALJ was simply
mistaken when she found that Plaintiff’s mental exams were
generally unremarkable, based on the fact that notes of
these exams showed serious problems, and she asserts that
the ALJ did not identify the “unremarkable” exam notes
referred to in the administrative decision.

She also takes

issue with the ALJ’s reliance on the fact that Plaintiff’s
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condition improved with medication, noting that Dr. Bobba
was aware of the extent of such improvement but still viewed
Plaintiff as being significantly limited from a
psychological viewpoint.

The Commissioner, on the other

hand, argues that the first assessment done by Dr. Bobba
took place before a treating relationship had been
established, and that the ALJ was correct in determining
that the treatment notes were generally unremarkable.
Turning to this last issue first, the general format of
Dr. Bobba’s office notes includes a checklist of mental
status symptoms.

On almost all of them, Dr. Bobba checked

boxes showing issues with one or more of Plaintiff’s
attitude, psychomotor activity, mood, affect, speech,
concentration, and attention.
793, 796, 838, 923, and 924.

See, e.g., Tr. 629, 631, 790,
Most, if not all, of these

notes show abnormal concentration and attention, and they
show varying degrees of abnormality in other areas as well.
It is true that not every aspect of Plaintiff’s mental
status was deemed abnormal every time she saw Dr. Bobba - as
the Commissioner points out, it was not unusual for Dr.
Bobba’s notes to reflect normal findings about Plaintiff’s
clean appearance, cooperative attitude, insight and
judgment, lack of hallucinations, and lack of suicidal or
homicidal ideation.

But a combination of normal and

abnormal findings is not the same as a “generally
unremarkable” examination, and the most recent office notes
- the ones dated in June, 2013, see Tr. 923-24 - reflect
only two areas where Plaintiff had no problems (being
oriented and having normal remote memory), and nine areas of
abnormality.
Further, as Plaintiff points out, the Court’s review of
the ALJ’s decision is also hampered by its lack of
specificity; the ALJ neither mentioned any of the
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unremarkable findings on which she relied nor identified any
specific exhibit by number, instead lumping all 32 medical
exhibits together as showing unremarkable results and
general improvement in Plaintiff’s condition.

The

combination of these deficiencies render the Court unable to
determine if the ALJ’s reliance on Dr. Bobba’s notes as
inconsistent with her opinions is a “good reason” for
discounting Dr. Bobba’s report, since the Court does not
know which notes or which findings the ALJ meant to refer
to.

It is also apparent that the ALJ mischaracterized or

misunderstood the office notes in question; otherwise they
would not have been described as “generally unremarkable,”
because they contain consistent abnormal findings in areas
like concentration, recent memory, and attention which are
significant to a person’s ability to sustain employment.
The ALJ’s reliance on other factors is on more certain
ground.

To some extent, Plaintiff’s ability to take college

courses online (although she had reduced her load because of
some struggles with the course requirements) and her
willingness to participate in vocational rehabilitation,
with a goal of returning to work, show capabilities beyond
those attributed to her by Dr. Bobba.

However, the ALJ

herself described the purported inconsistency between Dr.
Bobba’s notes and her opinions as the more important factor
in her decision, and the Court will not second-guess that
statement.

Since that factor was not properly evaluated, a

remand is necessary on the treating source opinion issue.
B.

Dr. Woskobnick’s Opinion

Again, the Court begins its analysis of this issue by
describing how the ALJ dealt with Dr. Woskobnick’s opinion.
The ALJ gave it some weight, finding it “somewhat vague” but
construing it as concluding that Plaintiff could sit for up
to eight hours and stand up to four hours.
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The

determination that Plaintiff could lift only ten pounds was
rejected as being based solely on Plaintiff’s subjective
reports, but the ALJ found the opinion otherwise “generally
consistent with the claimant’s testimonial account of her
abilities, which is why this opinion is entitled to some
weight.”

(Tr. 42-43).

Plaintiff’s argument concerning Dr. Woskobnick’s
opinion focuses on the ALJ’s rejection of Dr. Woskobnick’s
lifting restrictions.

Plaintiff contends that this

restriction was based as much on the physical examination
which Dr. Woskobnick conducted as it was on Plaintiff’s
self-reported limitations, especially since he clearly did
not accept Plaintiff’s self-report as to other restrictions,
and that in order to find that Dr. Woskobnick simply
parroted Plaintiff’s own description of her symptoms, one
would have to find that Dr. Woskobnick ignored instructions
on the form he completed telling him not to do that.

The

Commissioner, in turn, argues that the ALJ was correct in
noting that Dr. Woskobnick uncritically accepted Plaintiff’s
report as to lifting instructions and contends that the ALJ
was entitled to rely on the state agency physicians’ views
of Plaintiff’s physical functional capacity since they were
supported by the evidence.
Here, it does not appear that the discrepancy between
the state agency physicians and Dr. Woskobnick is
particularly significant, given that the vocational expert
testified that even if Plaintiff were restricted to lifting
only ten pounds, she could still perform various sedentary
jobs.

It is somewhat difficult to determine exactly why the

ALJ thought that Dr. Woskobnick based his opinion about
Plaintiff’s lifting capacity on her self-report, apart from
the fact that his conclusion and her description of her
ability were the same; as Plaintiff correctly notes, she
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self-reported other limitations to him which he did not
adopt, and the form he completed contains this language (in
all caps): “IMPORTANT: PLEASE COMPLETE THE FOLLOWING ITEMS
BASED ON FINDINGS ONLY, NOT ON PATIENT’S OPINIONS OR
SUBJECTIVE COMPLAINTS.”

(Tr. 918).

Further, he was an

examining source and his report was not available to either
of the state agency physicians.

Nevertheless, even if his

opinion is deemed to be accurate as of the date it was
rendered, and even if it suggested some deterioration in
Plaintiff’s condition between the date of Dr. Vasiloff’s
opinion (July 25, 2012) and the date when Dr. Woskobnick saw
Plaintiff, which was March 30, 2013, resolving that issue in
Plaintiff’s favor, it would not have made any difference in
light of the vocational testimony.

The Court therefore

finds no merit in this claim of error.
C.

The Knee Impairment

The medical records indicate that Plaintiff began
complaining about a knee impairment (as opposed to pain
beginning in her low back and radiating into her legs) in
July, 2012.

In the section of the administrative opinion

where the ALJ discussed severe and nonsevere impairments,
this condition is not mentioned at all.

She discussed

specifically Plaintiff’s diabetes, pseudotumor cerebri,
migraines, pseudopapilledema, and asthma, and said that “all
other impairments alleged (or found in the record) ... are
non-severe.”

(Tr. 36).

Knee pain was mentioned in the

ALJ’s determination of residual functional capacity, where
the ALJ observed that “[i]maging revealed degenerative
changes with joint space narrowing and marginal osteophyte
formation (29F/1).

The claimant was advised to lose weight,

reduce her caloric intake and continue with water aerobics
(28/3).

She was also treated with physical therapy (22F).”

(Tr. 40).

The ALJ did not explain how, if at all, any
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limitations from Plaintiff’s knee condition factored into
the residual functional capacity finding.
According to Plaintiff, there are two problems with the
ALJ’s approach.

First, the lack of any recognition or

discussion of the knee problems creates an inference that
the ALJ simply failed to consider it at all in arriving at a
physical residual functional capacity.

Second, the records

reflect various functional limitations arising from that
condition, including its effect on Plaintiff’s ability to
climb stairs and to walk for prolonged periods of time.

The

Commissioner responds by arguing that the records indicated
that Plaintiff’s back pain was more limiting than any knee
pain she suffered, essentially contending that any error
committed by the ALJ with respect to Plaintiff’s knee
impairment was harmless.
Again, it is somewhat concerning that neither of the
state agency physicians appear to have had the benefit of
the records showing that Plaintiff specifically complained
of knee pain or that there were objective findings
supporting that complaint and justifying treatment.

On the

other hand, the ALJ found that Plaintiff could only climb
stairs occasionally, was limited in her ability to walk, and
could kneel only occasionally.

None of the jobs identified

by the vocational expert appear to require a good deal of
walking, and the record does support the Commissioner’s
contentions that Plaintiff’s back problem was viewed by her
physicians as more limiting, that her knee was expected to
respond to therapy, and that Dr. Woskobnick, whose
evaluation post-dated Plaintiff’s first complaints of knee
pain by about seven months, did not diagnose any specific
knee condition and was not told by Plaintiff that she was
having knee pain.

He, too, listed back problems as her

primary limiting impairment.

However, his opinion does
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contain some limitations which could be attributed
independently to knee problems, including his view that
Plaintiff could never squat, crawl, or climb - findings that
the ALJ neither commented upon nor adopted.

Under these

circumstances, it is not entirely clear that the limitations
imposed by Plaintiff’s back condition were at least as
extensive as those caused by any knee impairment or that it
was unnecessary to include any additional limitations
arising solely from that medical problem.

The remand on the

treating source issue will give the ALJ an opportunity to
re-evaluate this issue as well.
VII.

Recommended Decision

Based on the above discussion, it is recommended that
the Plaintiff’s statement of errors be sustained to the
extent that the case be remanded to the Commissioner
pursuant to 42 U.S.C. §405(g), sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of
this Report, file and serve on all parties written
objections to those specific proposed findings or
recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this

Court shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions.

28

U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
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waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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