Mills v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 1/3/2017. Signed by Magistrate Judge Terence P. Kemp on 12/20/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dakeyla N. Mills,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:16-cv-45

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

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

Those applications were filed on

August 14, 2012, and alleged that Plaintiff became disabled on
June 5, 2009.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on November 5, 2014.

In a decision dated December 22, 2014, the

ALJ denied benefits.

That became the Commissioner’s final

decision on November 23, 2015, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on March 29, 2016.

Plaintiff filed a

statement of specific errors on May 13, 2016, to which the
Commissioner responded on August 25, 2016.

Plaintiff filed a

reply brief on September 8, 2016, and the case is now ready to
decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 36 years old as of the date of the
hearing and who has a ninth grade education, testified as

follows.

Her testimony appears at pages 39-66 of the

administrative record.
Plaintiff was first asked about her past work.

She had held

part-time jobs as a dietary aide, at a Golden Corral restaurant,
and at Taco Bell.

She hurt her back in 2009, which is why she

alleged a disability since that date.

She did work part-time

afterwards, but stopped working completely in 2012 because her
back got worse.
Plaintiff described her back pain as starting in the middle
of her lower back and then radiating to one side or the other.
She had been treated for back pain since 2009, which treatment
included injections and medications.
prescription was for Percocet.
pain.

Her most recent

It helped take the edge off the

Steroid injections helped relieve the pain temporarily but

it always returned.

Physical therapy had not helped her.

She

also had a TENS unit and it helped a little.
As far as activity was concerned, Plaintiff said that both
standing and sitting made the pain worse.

She also testified to

having migraine headaches as often as three times per week.
III.

The Medical Records

The pertinent medical records are found beginning at page
291 of the record.

They can be accurately summarized as follows.

Plaintiff reported back pain to her doctor as early as
August 26, 2009.

At that time, it was described as SI join pain

radiating down the right side.

Plaintiff had apparently sought

chiropractic treatment for several months with no relief, and had
also been seen in the emergency room the day after she was
injured (Tr. 313).

She was prescribed pain medication and

referred for pain management.

(Tr. 291-96).

She also underwent

physical therapy with a goal of reducing the pain she experienced
with activity.

She was discharged from therapy on November 17,

2009, with her goals not met secondary to poor attendance.
-2-

(Tr.

297-307).

She went back to the emergency room in April, 2010,

with an exacerbation of her back pain, which had not improved
despite injections, and was discharged with medication.

(Tr.

322-24).
An MRI study of the low back was done on January 19, 2012.
It showed fact joint hypertrophy at L3-4 and L4-5 without
stenosis and no disk herniations.

(Tr. 359).

Plaintiff was seen at Genesis Pain Management in Zanesville
from November, 2009 through August, 2012.

Her doctor reported on

September 5, 2012 that she had low back and buttock pain with
tenderness over the sacroiliac joints and coccyx, and also with
radicular symptoms into the buttock and posterior thigh
intermittently.

Dr. Siefert’s notes from that practice show that

Plaintiff complained of headaches as well as back pain, and that
she had been treated with injections with some relief.

She had

good motor strength and could get on and off the exam table
without difficulty.

She was on medications including Naproxen,

Flexeril, and Percocet.
SI joints.

Plaintiff exhibited tenderness over the

Because the injections provided only temporary

relief, Dr. Siefert discussed radiofrequency ablation with her
but she did not opt for that treatment.

Standing and prolonged

sitting made her pain worse, and she used Percocet at night to
help her sleep.

(Tr. 359-418).

Records from later in 2012 and

from early 2013 are similar, and she continued to have
injections.

Dr. Siefert completed a form on February 25, 2013,

stating that due to pain, Plaintiff had marked restriction in her
activities of daily living and that her pain ranged from moderate
to severe.

(Tr. 466).

Plaintiff had more injections in 2014.

Plaintiff underwent a psychological evaluation which was
conducted on December 6, 2012, by Floyd Sours, a consulting
psychologist.

Plaintiff reported depression but said she had

never sought treatment.

She also described constant low back
-3-

pain and said she could not walk, stand, or sit for long.

At

that time, she was working part-time but on a reduced schedule
due to back pain.

During the evaluation, she exhibited a minimal

range of emotion and said she had had chest pain which might be
anxiety, but did not consider it to be much of a problem.

Based

on the interview, Mr. Sours concluded that Plaintiff was
functioning in the borderline range, with less than marginal
insight and at least marginal judgment.

Plaintiff said she was

able to take care of her personal and family needs and to go to
her job, to watch television, and to socialize with her family.
Mr. Sours diagnosed PTSD, an adjustment disorder with depressed
mood, and borderline intellect, and rated Plaintiff’s GAF at 65.
Mr. Sours thought Plaintiff could understand, remember, and carry
out instructions in a work setting, could attend to simple,
repetitive tasks and even multi-step tasks, and could relate to
others and maintain appropriate behavior under work pressure.
(Tr. 419-24).
Plaintiff’s records were also reviewed at the state agency
level.

On the physical side, Dr. Klyop expressed the opinion

that Plaintiff could do light work with some postural
limitations.
findings.

(Tr. 91-92).

Dr. Torello concurred with these

(Tr. 120-21).

On January 11, 2013, Dr. Warren, a psychologist, indicated
that Plaintiff had severe mental impairments, including anxiety
and affective disorders as well as borderline intellectual
functioning, and that she had moderate restrictions in activities
of daily living and in the areas of concentration, persistence,
and pace.

She thought Plaintiff could work in a relatively

static environment with no strict time or production demands.
(Tr. 88-89, 92-94).
conclusions.

Dr. Waggoner reached exactly the same

(Tr. 117-18, 121-23).
IV.

The Medical Expert Testimony
-4-

Dr. Ronald Kendrick, a medical expert, was called to testify
at the administrative hearing.

His testimony begins at page 68

of the record.
Dr. Kendrick first identified the conditions which he
believed to be documented in the medical records.

Plaintiff had

been treated for mild lumbar spondylolisthesis, and she also
suffered from obesity.

Additionally, she was treated for pain in

the coccyx area, although there was no pathology associated with
that.

Dr. Kendrick said that there was no way objectively to

verify her pain, although he agreed that her course of treatment
was consistent with someone who had severe pain.

He did not

believe her conditions met the criteria for disability under the
Listing of Impairments.
Asked to rate Plaintiff’s functional capacity, Dr. Kendrick
said that she could work somewhere between the light and
sedentary level, being able to lift fifteen pounds occasionally
and ten pounds frequently, to stand or walk for four hours in a
workday, to sit for six, and to bend, stoop, kneel, and crawl
only occasionally.

She also needed to alternate between sitting

and standing, being able to sit for 45 minutes to an hour and to
stand for 30 minutes at a time.
V.

The Vocational Testimony

Dr. Walter Walsh was called to testify as a vocational
expert at the administrative hearing.

His testimony begins at

page 74 of the administrative record.
Dr. Walsh was first asked some questions about someone with
Plaintiff’s background and who could work at the light exertional
level, but who could only climb ladders, crawl, and stoop
occasionally, and who could climb ramps and stairs, bend, and
crouch frequently.

He said that such a person could do 90% of

the light unskilled jobs in the occupational base.

If that

person also could do simple one- to four-step tasks in a

-5-

relatively static environment without strict production demands,
the percentage of light, unskilled jobs available would drop to
65 to 70 percent.

Examples would include cleaner, stock clerk,

and packager.
Next, Dr. Walsh was asked to assume that Plaintiff had the
limitations stated in Dr. Siefert’s report - particularly a
marked restriction in the performance of activities of daily
living - and responded that work would be problematic for such a
person.

Lastly, assuming that Plaintiff was limited in the way

to which Dr. Kendrick testified, Dr. Walsh said that there would
be sedentary jobs available, including security monitor,
packager, and office clerk.
VI.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1928 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, 2012.

Second, he found that Plaintiff had

not engaged in substantial gainful activity since her alleged
onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including degenerative disc disease of the lumbar spine and
obesity.

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 the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the sedentary level with these
restrictions.

She could lift fifteen pounds occasionally and ten

pounds frequently, stand or walk for four hours in a workday,

-6-

sit for six, and bend, stoop, kneel, and crawl only occasionally.
She also needed to alternate between sitting and standing, being
able to sit for 45 to 60 minutes at a time and to stand and walk
for 30 minutes at a time.
Plaintiff had no past relevant work.

However, with the

limitations on her work-related abilities which he found to
exist, the ALJ determined that Plaintiff could do jobs like
security monitor, packager, and officer clerk.

The ALJ further

determined that these jobs existed in significant numbers in the
state economy and the national economy.

Consequently, the ALJ

decided that Plaintiff was not entitled to benefits.
VII.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises the
following issues: (1) the ALJ improperly failed to give
controlling weight or deference to the opinions of Dr. Siefert, a
treating source; (2) the ALJ did not properly evaluate
Plaintiff’s credibility; (3) the ALJ improperly determined that
Plaintiff’s mental impairments were not severe; and (4) the ALJ
failed to account for mental impairments throughout the
sequential evaluation process.

The resolution of these issues is

governed by the following standard of review.
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

-7-

(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
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. Siefert’s Opinion

As her first statement of error, Plaintiff asserts that the
ALJ erred in giving only moderate weight to Dr. Siefert’s opinion
that Plaintiff’s pain caused her to experience marked limitation
in her activities of daily living.

Citing to the familiar method

of analysis for treating source opinions, Plaintiff argues that
the ALJ neither found that Dr. Siefert’s opinion was non wellsupported by acceptable medical and diagnostic techniques nor
concluded that it was inconsistent with the other evidence of
record.

Absent those findings, the ALJ should have, according to

Plaintiff, given controlling weight to Dr. Siefert’s opinion, and
that would have resulted in a finding of disability.
The controlling regulation in this case is 20 C.F.R.
§404.1527(c).

As that regulation is explained in Blakley v.

Comm’r of Social Security, 581 F.3d 399, 406 (6th Cir. 2009),
that regulation contemplates a two-step analysis.

First, the ALJ

must determine if the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and
whether it is “inconsistent with the other substantial evidence”

-8-

in the administrative record.

See §404.1527(c)(2).

If not, “the

ALJ must still determine how much weight is appropriate by
considering a number of factors, including 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 any specialization of the treating physician.”

Id.

But these factors “are properly applied only after the ALJ has
determined that a treating-source opinion will not be given
controlling weight.”

Gayheart v. Comm’r of Social Security, 710

F.3d 365, 376 (6th Cir. 2013).
however;

This is not a hard and fast rule,

as the court observed in Aiello-Zak v. Comm'r of Social

Security, 47 F.Supp.3d 550, 558 (N.D. Ohio 2014), “recent
authority has held that so long as an ALJ adequately addresses
the factors required by Gayheart and articulates good reasons for
discounting the opinion of a treating source, the Commissioner's
decision will not be upset by a failure to strictly follow the
Gayheart template” (citing Dyer v. Social Security
Administration, 568 Fed.Appx. 422, 425-26 (6th Cir. June 11,
2014)). See also Halama v. Comm'r of Social Security, 2013 WL
2013 WL 4784966, *7 (N.D. Ohio Sept. 5, 2013)(failure to follow
exactly the Gayheart sequence of findings can be excused if the
ALJ addresses “on the record each of the Gayheart elements so as
to permit meaningful judicial review of the final decision”).
Here, the ALJ had this to say about Dr. Siefert’s opinion:
The opinion of W.L. Gregory Siefert, M.D., the
claimant’s treating physician, is given only moderate
weight as it does not provide a medical source
statement information about the nature, location, or
quantitative statement of the claimant’s pain since the
alleged onset date. Further, Dr. Siefert does not give
a function-by-function assessment of the claimant’s
physical limitations, nor indicate what is meant by
moderate to severe pain”, (sic) in terms of various
work activities, such as time length of sitting,
standing, or walking, nor the amount of weight claimant
-9-

could still lift, despite her impairment.
(Tr. 26-27).

The Commissioner defends this articulation of the

ALJ’s reasoning process, asserting that Dr. Siefert’s opinion was
not a “medical opinion” which the ALJ was required to evaluate
under §404.1527(c).
The major problem with this argument is, of course, that the
ALJ did not provide this reasoning, and it would violate the
articulation requirement of the

“treating physician” rule were

the Court to accept an after-the-fact rationalization of the
ALJ’s conclusion.

Wilson v. Comm'r of Social Security, 378 F.3d

541, 544 (6th Cir. 2004).

And even if the Court were to accept

that argument, it is incorrect.

20 C.F.R. §404.1527(a)(2) says

that “[m]edical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can
still do despite impairment(s), and your physical or mental
restrictions.”

Dr. Siefert’s conclusion that, due to moderate to

severe pain, Plaintiff was markedly limited in what she could do
on a day-to-day basis fits comfortably within this definition.
Further, the Commissioner does not attempt to argue that the
ALJ’s method of analysis comported with Gayheart and Blakley, and
it is apparent from the language quoted above that it did not.
The only question is whether the error is harmless.
The Commissioner contends that it is, based on the fact that
the ALJ, when evaluating Plaintiff’s activities of daily living
in connection with the Listing of Impairments, determined that
she had only a mild limitation in this area.

But the ALJ

expressly disclaimed making a residual functional capacity
analysis in that section of the decision (“[t]he limitations
identified in the ‘Paragraph B” criteria are not a residual
functional capacity assessment ...”).

-10-

(Tr. 23).

Further, as

Wilson teaches, it is hard to sustain the failure to follow the
dictates of §404.1527(c) on harmless error grounds; a court may
do so “if a treating source's opinion is so patently deficient
that the Commissioner could not possibly credit it,” but
generally not otherwise.

Wilson, 378 F.3d at 547.

The fact that

the ALJ has come to a conclusion that is inconsistent with the
treating source’s opinion cannot be the basis of a claim of
harmless error, because that is true about every case where an
ALJ has not given controlling weight to the treating physician’s
opinion.

The Commissioner has not demonstrated, or even argued,

that no reasonable person could have credited Dr. Siefert’s
opinion about the extent to which Plaintiff was limited by her
pain - a hard argument to make given the long-standing treating
relationship.

Since error occurred, and it is not harmless, the

case must be remanded on this ground.
B.

The Credibility Analysis

Plaintiff’s next argument is that the ALJ did not properly
perform the required analysis of her credibility.

In support of

this argument, she asserts that the reasons given by the ALJ for
discounting her reports of disabling pain - her conservative
treatment history, the success of treatment, and her part-time
work activity - do not support his finding.

The Commissioner

counters that the Court owes great deference to the ALJ’s
credibility determinations and that each reason given is a valid
basis for refusing to credit fully Plaintiff’s allegations.
Evaluation of a claimant's subjective reports of disabling
pain is subject to a two-part analysis.

First, the Commissioner

should determine if there is objective medical evidence which
confirms the presence of disabling pain.

If not (and there

frequently is not, given that pain is difficult to measure or
quantify, and is experienced differently even by persons with the
same underlying condition), the Commissioner should determine if
the claimant suffers from an objectively-established medical
-11-

condition of sufficient severity to permit a reasonable inference
to be drawn that the disabling pain actually exists.

See Duncan

v. Secretary of H.H.S., 801 F.2d 847, 853 (6th Cir. 1986).

This

procedure is reflected in 20 C.F.R. §404.1529(a).
It is important to note that these inquiries are to be
made separately, and that if there is objective evidence of a
sufficiently severe underlying condition, a claimant can prove
the existence of disabling pain due to that condition through
other evidence even if the medical evidence is not helpful in
establishing the extent of the claimant's pain.
Bowen, 35 F.3d 1027 (6th Cir. 1994).

Felisky v.

Thus, the Commissioner is

not permitted to reject allegations of disabling symptoms,
including pain, solely because objective medical evidence is
lacking, but must consider other evidence, including the
claimant's daily activities, the duration, frequency, and
intensity of the symptoms, precipitating and aggravating factors,
medication (including side effects), treatment or therapy, and
any other pertinent factors.

20 C.F.R. §404.1529(c)(3).

The

Commissioner should also give appropriate weight to the opinion
of a long-term treating physician as to whether the claimant is
accurately reporting or exaggerating the extent to which
disabling symptoms exist.

Felisky, 35 F.3d at 1040.

If the

Commissioner summarily rejects the claimant's testimony
concerning pain without considering these matters, reversal or
remand may be warranted.
Here, the ALJ articulated the proper analytical pathway and
cited to, inter alia, Social Security Ruling 96-7p and to 20
C.F.R. §404.1529.

He concluded that Plaintiff did have

impairments which can cause symptoms but found that the extent of
her symptoms were not documented in the medical evidence.
Further, the ALJ found that her daily activities were not
“limited to the extent one would expect” based on her complaints
of pain, and said that her part-time work activity for three
-12-

years following her alleged onset date demonstrated abilities
“somewhat greater than the claimant has generally reported at the
time of her application and as reported at the hearing.” He also
concluded that she was not particularly forthright in describing
her work duties and that her treatment was no more than routine
and conservative, as well as “generally successful in controlling
those symptoms ....” (Tr. 24-25). Lastly, he pointed to gaps in
treatment during which Plaintiff continued to work. All of these
factors led him to conclude that she had overstated the degree of
pain she experienced. (Tr. 26).
There are some clear flaws with this rationale.
Particularly as to the treatment history, it is hard to describe
it either as routine and conservative or generally successful
when Plaintiff was seen for five years by a pain management
specialist, had multiple injections in her back, was recommended
for radio frequency ablation because of the lack of success of
other treatment modalities, was prescribed medications like
Flexeril and Percocet, and never achieved more than a few weeks
of relief from the injections she received. Further, her
description of her part-time work, which never rose to the level
of substantial gainful activity, was that it became increasingly
difficult for her to do, even on a very reduced schedule, and
that she did receive accommodations due to pain. By the time of
the hearing, she had stopped working altogether, so it is
difficult to see how her description of her limitations at the
hearing was inconsistent with an allegation of disabling pain.
Given the fact that a substantial portion of the credibility
analysis is not supported by a reasonable reading of the record,
the ALJ should also revisit this issue on remand.
C. Mental Residual Functional Capacity
As her third statement of error, Plaintiff claims that the
ALJ should have found her to suffer from one or more severe
mental impairments, which was the conclusion reached by both
state agency reviewing psychologists. She argues that it was
error for the ALJ to have given more weight to Mr. Sours’
-13-

evaluation, especially when the state agency reviewers had access
to the entirety of the medical records and explained why Mr.
Sours’ conclusions were inconsistent with his own findings. The
Commissioner responds that this is simply an argument about the
weight to be given to competing medical opinions and that the
ALJ’s decision on that issue is entitled to substantial
deference.
In dealing with the opinion evidence as to mental
impairments, the ALJ first briefly discussed the opinions of the
state agency reviewers, concluding that their opinions deserved
“little weight, because the evidence does not support a finding
of severe mental impairments, as the claimant made very few
psychiatric complaints and did not received (sic) mental
treatment.” (Tr. 26). The ALJ then discussed Mr. Sours’
evaluation in more depth, noting that he had actually examined
Plaintiff and that his opinion was consistent with the medical
record.
As the Commissioner notes, the entire medical record about
mental impairments appears to be limited to Mr. Sours’ report.
The applicable regulation (again, §404.1527) suggests that, other
things being equal, the opinion of an examining source is
entitled to be given more weight than the opinion of a nonexamining source. Mr. Sours did find that Plaintiff suffered
from borderline intellectual functioning and had less than
marginal judgment, but he did not find a significant amount of
impairment in any area of work-related functioning. The state
agency reviewers disagreed with him about Plaintiff’s ability to
perform more than 1-4 step tasks based on borderline
intelligence, finding a limitation in the areas of carrying out
detailed instructions, and also thought she needed to be in a
relatively static work environment, but they did not explain why.
Given that the ALJ recognized a difference of opinion here and
articulated why he chose one opinion over another, the Court
finds no reversible error in the ALJ’s conclusion that Plaintiff
did not suffer from severe mental impairments.
-14-

D. Considering Mental Limitations
Plaintiff next argues that even if she did not have a severe
mental impairment, the ALJ nonetheless should have taken her
nonsevere mental limitations into account in formulating her
residual functional capacity. She relies on the decision in
Simpson v. Comm’r of Social Security, 344 Fed. Appx. 181 (6th
Cir. Aug. 27, 2009), for support, contenting that it is error not
to include the types of nonsevere limitations present in this
case in the residual functional capacity analysis. The
Commissioner, in turn, argues that the evidence in Simpson
supported far more serious mental limitations than those present
here.
Simpson makes clear that an ALJ cannot simply equate the
absence of a severe mental impairment with no mental limitations
at all. There, there was what the court described as
“uncontradicted objective medical evidence” that the claimant
suffered from limitations arising out of mental disorders. Id.
At 191. Here, by contrast, the evidence is not as clear. As
noted, Mr. Sours did not find any work-related limitations at
all, even as to the performance of multi-step tasks, despite some
deficiencies in her intellectual functioning. The ALJ was
permitted to rely on his findings. Further, unlike other cases
where an ALJ fails to discuss mental impairments at all in
connection with the residual functional capacity evaluation, see,
e.g., Hicks v. Comm’r of Social Security, 2013 WL 3778947 (E.D.
Mich. July 18, 2013), the ALJ did discuss the psychological
opinion evidence as part of his discussion of residual functional
capacity. The Court finds no error here.
VIII. 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 for further proceedings
pursuant to 42 U.S.C. §405(g), sentence four.
IX.

Procedure on Objections

If any party objects to this Report and Recommendation,
-15-

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
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

-16-