Reed v. Commissioner of SSA
REPORT AND RECOMMENDATION - It is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision. Objections to R&R due by 3/7/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 2/21/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
ELIZABETH A. REED,
Civil Action 2:16-cv-78
Judge James L. Graham
Chief Magistrate Judge Elizabeth P. Deavers
COMMISSIONER OF SOCIAL SECURITY,
REPORT AND RECOMMENDATION
Plaintiff, Elizabeth A. Reed, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for social security disability insurance benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
12), the Commissioner’s Memorandum in Opposition (ECF No. 18), Plaintiff’s Reply (ECF No.
20), and the administrative record (ECF No. 9). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
Plaintiff protectively filed her application for benefits in July 2012, alleging that she has
been disabled since June 23, 2008, due to a back injury; diabetes; thyroid disorder; depression;
post-traumatic stress disorder (“PTSD”); panic attacks; and carpal tunnel syndrome. (R. at 16874, 180-86, 211, 224.) Plaintiff’s application was denied initially and upon reconsideration.
Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law
Judge Kim L. Bright (“ALJ”) held a video hearing on July 16, 2014, at which Plaintiff,
represented by counsel, appeared and testified. (R. at 39-57.) Aimee Mowery, a vocational
expert, also appeared and testified at the hearing. On August 18, 2014, the ALJ issued a decision
finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 14–
28.) On December 10, 2015, the Appeals Council denied Plaintiff’s request for review and
adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1-6.) Plaintiff then
timely commenced the instant action.
Plaintiff testified at the July 16, 2014, administrative hearing that she has gained some
weight in the year prior to the hearing due to her depression. (R. at 40.) She lives in a two-story
home with her husband. (R. at 41.) She has a driver’s license and drives about once a week, but
sometimes not at all. (Id.) Plaintiff testified that she injured her back in 2008 moving a patient.
(R. at 44.) She underwent a discectomy and fusion in March 2009, followed by eight weeks of
physical therapy. (R. at 45.) In May and June 2010, she underwent additional physical therapy
and three steroid injections. (R. at 46.)
When asked to describe a typical day, Plaintiff testified that she wakes up with pain in
her back. She said her surgery “took the edge off of the pain but I am in extreme pain now.” (R.
at 46.) She needs assistance to wash her hair because she has a hard time putting her arms over
her head. (R. at 47.) She can take a shower, but she has trouble getting in and out of the bathtub.
(Id.) She can make herself a simple meal. (Id.) She spends time reading and watching
television, but has difficulty concentrating on these tasks. (R. at 48.) She also testified that she
spends three to four hours per day lying down. (R. at 53.) She testified that her mother-in-law
cleaned the bathtub, and vacuumed, mopped and swept. (R. at 56.)
Plaintiff takes medication for diabetes, Xanax for anxiety, Effexor, Tenormin for high
blood pressure, and she was using over-the-counter pain medication. (R. at 49, 51.)
Plaintiff testified that she cannot work due to chronic pain “from the time I wake up
to the time I go to bed. I don’t sleep very well. There’s times when I don’t sleep at all. There’s
times when I may sleep two or three hours a night.” (R. at 51.) She testified that she has
difficulty bending and using her hands. She testified that she can sit for 15 minutes. (Id.)
Vocational Expert Testimony
Aimee Mowery, testified as the vocational expert (“VE”) at the administrative hearing.
(R. at 58-67.) The VE classified Plaintiff’s past relevant work as a home health aide, a medium,
semi-skilled position. (R. at 60.) The ALJ proposed a hypothetical regarding Plaintiff’s residual
functional capacity (“RFC”) to the VE. (R. at 60-61.) Based on Plaintiff’s age, education, and
work experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff
could not perform her past relevant work. (R. at 61.) The VE also testified the hypothetical
individual could perform approximately 11,400 light, unskilled jobs in the economy of the state
of Ohio and 312,400 in the national economy, such as a mail clerk, inspector, or hand packager.
(R. at 61-62.)
Bureau of Workers’ Compensation (“BWC”)
As noted throughout the record, Plaintiff suffered an industrial accident on June 23, 2008,
when she was working as a home health aide. Plaintiff injured herself while attempting to move
a patient. Plaintiff reported feeling a sudden severe pain in her lower back, neck, and shoulders.
(R. at 523.)
In October 2011, Howard Pinsky, D.O., performed an independent medical examination
(“IME”) of Plaintiff on behalf of the BWC. (R. at 334-36, complete copy at 681-85.) Plaintiff
complained of low back and leg pain and subsequently developed neck and right arm pain. (R.
at 681.) On examination, Plaintiff exhibited a normal stance and gait, right sided para-cervical
tenderness, pain in the lumbosacral region with limited range of motion, and weakness in the left
ankle. (R. at 682-83.) Dr. Pinsky opined that Plaintiff could only occasionally lift or carry up to
10 pounds, could frequently sit and occasionally stand/or walk. Dr. Pinsky also opined that
Plaintiff could not bend, twist, turn, reach, push, or pull, squat or kneel. (R. at 685.) Dr. Pinsky
concluded these were temporary restrictions and expected the necessary restrictions would last
an additional four months until February 13, 2012. (Id.) Dr. Pinsky opined Plaintiff had not
reached maximum medical improvement for purposes of her workers’ compensation claim. (R.
On June 7, 2012, Plaintiff underwent another IME with Babatunde Onamusi, M.D. on
behalf of the BWC. (R. at 339-82.) At the time of this examination, Plaintiff described constant,
severe pain in her lower back, noting that she has to be on medication, Ultram all the time. She
reports sleep disruption and inability to get comfortable in any position. She has a hard time
riding in a car. She reported radiation of pain down into her buttocks and to the left lower
extremity with numbness and tingling down the same extremity to the top of her foot. (R. at
340.) Dr. Onamusi found a reduced range of motion in the spine accompanied by moderate
pain, moderate tenderness in the lumbosacral region, diminished sensation across the
dermatomal region of the left lower extremity, and pain and difficulty while squatting. (R. at
341.) Dr. Onamusi opined that Plaintiff could only occasionally lift or carry up to 10 pounds,
could only occasionally push or pull, stand or walk, and sit. (R. at 344.) Dr. Onamusi also
opined that Plaintiff could not bend, twist, reach below the knees, squat or kneel. (Id.) Dr.
Onamusi concluded that Plaintiff had not reached maximum medical improvement and would
benefit from additional steroid injections as recommended by her treating physician. (R. at 343.)
Plaintiff underwent a functional capacity evaluation on July 17, 2012. (R. at 345-53.)
On examination, Plaintiff showed some gait discrepancy but no overt swelling or atrophy. (R. at
349.) Strength and range of motion in the neck, trunk, shoulders, and elbows, wrists, hips, knees,
and ankles were generally within normal limits. (R. at 349-50.) The therapist, Thomas
Brodagard, OTR/L, reported that Plaintiff had a panic attack and therefore functioning testing
was limited. Mr. Brodagard felt that Plaintiff may benefit from physical therapy to address her
pelvic instability and associated weakness and progress to work conditioning program to
optimize physical abilities to return to work. (R. at 345.) He also noted pain management might
be indicated. (R. at 346.)
Charles DeNunzio, D.O.
On June 30, 2008, a week following her industrial injury, Plaintiff complained to her
primary care practitioner, Dr. DeNunzio, of back pain and left side numbness. (R. at 404.) Dr.
DeNunzio added Vicodin to Plaintiff’s medications and ordered additional testing. (R. at 405.)
X-rays taken on July 1, 2008, showed mild narrowing of the disc space at L5-S1. (R. at 421.) In
August 2008, Plaintiff told the doctor that she stopped participating in physical therapy because
her “boss” told her to stop. (R. at 398.)
Dr. DeNunzio’s records continue through May 2014. He treated Plaintiff for complaints
of pain and intermittent left leg numbness, left shoulder pain, tingling and burning in her left
foot. (R. at 362-492, 506-40, 546-88.) His clinical examinations were generally unremarkable,
he noted neck pain and neurological issues. He recommended physical therapy and prescribed
medications Ultram and medication for hypertension. (Id.)
An MRI of Plaintiff’s lumbar spine taken in December 2008 revealed small disc
herniation at L5-S1 causing mild compromise of the neural structure slightly more on the left
side. (R. at 316.) An MRI of Plaintiff's thoracic spine in March 2009 was normal. (R. at 313,
417.) An MRI of the cervical spine showed a small herniated disc at C5-6, with no nerve root
compression and a herniation to the left lateral recess with root compression at C6-7. (R. at 31415, 418-19.) Nerve conduction testing on April 5, 2009 of Plaintiff’s left upper extremity
showed an isolated abnormality suggesting some process affecting the left S-1 nerve fibers but
was otherwise normal. (R. at 307.) An subsequent MRI of the lumber spine taken on March 9,
2011, revealed a moderate paracentral left L5-S1 disc protrusion with a mild mass effect on the
left side. The remainder of the examination was normal. (R. at 335.)
Albert Camma, M.D.
Neurosurgeon Albert Camma, M.D., examined Plaintiff on February 12, 2009, pursuant
to her industrial injury. (R. at 304.) Plaintiff complained of severe pain, numbness, tingling, and
weakness, aggravated by lying down, bending, lifting, and other activity. (Id.) Plaintiff
exhibited decreased flexion of her spine but pointed to her neck when asked where it hurt. There
was tenderness of the left sciatic notch, and a positive straight leg raise on the left that was
relieved by flexing the hip and knee. She had decreased pin sensation on the left side of her
body to her neck and decreased vibratory sensation in the left lower extremity to the knee. Dr.
Camma assessed lumbar radiculopathy secondary to a small herniated disc at L5-S1, cervical
radiculopathy, and possible cervical and thoracic disc herniation. (R. at 306.) He recommended
additional x-rays, MRIs, nerve conduction studies, and physical therapy, adding that Plaintiff had
not had adequate physical therapy to date. (R. at 304-06.)
William Zerick, M.D.
Plaintiff saw Dr. Zerick on referral with complaints of neck and arm pain. He noted a
large herniated disc on the left at C6-7 with compression of the left nerve root. Dr. Zerick
recommended surgical intervention. On May 7, 2010, Dr. Zerick performed an arthrodesis with
discectomy and anterior plate fixation and interbody device fixation at the C6-7 level. (R. at
682.) Post-operative wounds healed uneventfully. Post-operative x-rays were unremarkable,
showing appropriate healing. (R. at 682.)
Janet Brockwell, M.D.
When consultatively examined by Dr. Brockwell on January 8, 2013, she found
tenderness in Plaintiff’s neck and numbness in her left hand. (R. at 494-95.) Range of motion,
muscle strength, and reflexes were generally within normal limits. (R. at 496.) Dr. Brockwell
opined that Plaintiff could stand and walk up to 15 minutes at a time, sit up to 30 minutes at a
time, and lift and carry up to 10 pounds occasionally and 5 pounds frequently. Plaintiff had no
or minimal limitations in her ability to reach; and moderate limitations in her ability to push,
pull, bend, and handle. (R. at 497.) According to Dr. Brockwell, Plaintiff would be able to
bathe, dress, climb stairs, complete household chores such as laundry, cooking, and shopping,
and manage medications and finances. (R. at 498.) Dr. Brockwell concluded that Plaintiff was
then unemployable and that the physical limitations she found would last for twelve months or
State Agency Evaluation
On September 28, 2012, state agency physician, Leon D. Hughes, M.D., reviewed the
record and assessed Plaintiff’s physical functioning capacity. (R. at 70-79.) Dr. Hughes opined
that Plaintiff could lift and/or carry twenty pounds occasionally and ten frequently; stand and/or
walk six hours in a workday; and sit for about six hours in a workday. (R. at 77.) Dr. Hughes
also found that Plaintiff was limited to only frequent pushing and pulling in both her upper and
lower extremities due to her lower back pain with radiation and reported history of neck surgery.
(Id.) According to Dr. Hughes, Plaintiff could frequently climb ramps/stairs, stoop, kneel,
crouch or crawl; and never climb ladders, ropes, or scaffolds. (Id.) Plaintiff was also found to be
limited to overhead reaching. (R. at 78.) Plaintiff should avoid concentrated exposure to hazards
such as machinery and heights involving the use of her left lower extremity. (Id.) Dr. Hughes
found Plaintiff partially credible. (R. at 76.)
State agency physician, Olga V. Pylaeva, M.D., reviewed Plaintiff’s records upon
reconsideration on February 7, 2013, and affirmed Dr. Hughes’s assessment. (R. at 85-94.)
Mental Health Evidence
Regina McKinney, Psy.D.
On September 14, 2012, Plaintiff was evaluated for disability purposes by Dr. McKinney.
(R. at 354-59.) Plaintiff reported that she had “full blown panic disorder” that started when she
was 25 year old, along with PTSD and depression. (R. at 355-56.) She took Xanax, which
helped, but had no other mental health treatment. (R. at 355-56.) Plaintiff said she worked as a
certified nurse assistant in a nursing home for eight years, most recently, working as a home
health aide for a year before she was injured moving a patient. (R. at 356.) Plaintiff said she
enjoyed watching television, reading, and crocheting. (Id.) On mental status examination,
Plaintiff was found to be cooperative, with adequate grooming and hygiene. (R. at 356.) She
showed some limitations in memory and concentration, but no obvious mood disturbances,
indications of anxiety, or loose thoughts. (R. at 356-57.) Dr. McKinney diagnosed panic
disorder, depressive disorder, and generalized anxiety disorder. (R. at 358.) She opined that
Plaintiff could converse appropriately and respond directly to questions, but her short-term
memory, attention, and concentration skills were not strong, and may deteriorate over extended
periods of time, resulting in a slowing of performance. (Id.) Dr. McKinney also found that
increased stress and pressure could also lead to increased depressive symptomology including
crying, withdrawal, slowed work performance, and poor frustration tolerance. (R. at 359.)
Tri-County Help Center
Plaintiff sought mental health treatment at Tri-County Help Center on November 27,
2012. She reported suffering from anxiety and depression, and childhood abuse. She also
reported a loss of privacy since she and her husband lost their home and moved in with her inlaws. (R. at 646.) Plaintiff said she was an avid reader, enjoyed listening to music, and attended
church. (R. at 648, 654.) A check mark box was checked indicating that she was unemployed
and experiencing financial problems, but she did not want to work. (R. at 649.) Plaintiff
reported a history of improvement with counseling, but stopped going following a move. (R. at
655.) On mental status examination, Plaintiff had a depressed, anxious mood, with cooperative
behavior and logical thought processes. (R. at 658.) The intake social worker assessed PTSD
and recommended individual and couples therapy and increased recreational and social activities.
(R. at 656-57.)
Plaintiff was first assessed by psychiatrist, Maura Andronic, M.D. on September 11,
2013. (R. at 620-23.) Plaintiff presented with severe panic attacks multiple times a day, PTSD,
and depression. (R. at 620.) On mental status examination, Plaintiff showed average eye
contact, average demeanor, and logical thought processes as well as depression, anxiety, anger,
and irritability. (R. at 621-22.) Dr. Andronic diagnosed depression and panic attacks based on
Plaintiff’s pending workers’ compensation claim for a cervical injury, and her complaints of
severe panic attacks several times a day, PTSD, childhood abuse, and depression. (R. at 622.)
Dr. Andronic prescribed Effexor, and recommended that Plaintiff taper down her usage of
Xanax. (R. at 623.)
On October 7, 2013, Dr. Andronic found Plaintiff would have moderate limitations in
accepting instructions and working in coordination with others, completing normal work tasks at
a consistent pace, responding appropriately to changes, and tolerating customary work pressures.
(R. at 541-44.) Dr. Andronic also opined that Plaintiff would be markedly limited in relating to
the general public and performing at expected production levels. (R. at 541-42.) Dr. Andronic
further opined that Plaintiff would likely have partial or full day unscheduled absences from
work occurring 5 or more days per month due to the diagnosed conditions and/or side effects of
medication. Dr. Andronic concluded that Plaintiff’s condition likely to deteriorate if he or she is
placed under stress, particularly the stress of an 8 hour per day, 5 day per week job. (R. at 543.)
The record shows Plaintiff continued to treat with a counselor or with Dr. Andronic for
counseling and medication management through at least May 2014. (R. at 616-19, 644-79.)
Weinstein & Associates - Lee Roach, Ph.D. and John Heilmeier, L.I.S.W.
Plaintiff was provided mental health counseling through the BWC with Dr. Roach and
licensed social worker, John Heilmeier, L.I.S.W. at Weinstein & Associates, Inc. which is “a
large multidisciplinary mental health practice organized to provide comprehensive psychological
services (assessment, consultation, and treatment).” Weinstein & Associates, Inc.,
http://www.weinsteinandassociates.com (last visited Feb. 20, 2017).
Plaintiff initially saw Dr. Roach for a psychological evaluation on September 5, 2013 to
determine whether an additional allowance should be made to her workers’ compensation claim.
(R. at 608-14.) Dr. Roach found Plaintiff to be friendly, fully cooperative, and well-groomed.
(R. at 608.) Plaintiff complained of constant physical pain in her back and neck and weakness in
her left leg. (R. at 609.) As to her emotional status, Plaintiff reported that she had been stressed
and depressed. (Id.) She reported several medical therapies for four years, including
chiropractic, steroid injections, and physical therapy, but stated that “suddenly” her treatments
were denied, resulting in increased pain and depression. (R. at 611.) On mental status
examination, Plaintiff was alert, with no loss of awareness, although she endorsed some memory
and concentration deficits. (R. at 612.) Assessment on a depression inventory indicated severe
depression, although Dr. Roach noted that this was exacerbated by physical pain. (Id.) Dr.
Roach assessed a dysthymic disorder, as a direct and proximate consequence of the 2008 work
injury. The dysthymic disorder “alone cause[s] sadness with tears, suicidal ideation without
intent, agitation, irritable mood, indecisiveness, reduced concentration, and insomnia symptoms
which preclude her returning to work as a home health aide at this time. She could benefit from
undergoing psychotherapy and a psychiatric evaluation to assess her psychotropic medication
needs.” (R. at 614.)
When initially seen by Mr. Heilmeier on November 2, 2013, Plaintiff reported symptoms
consistent with panic disorder with agoraphobia. She also reported symptoms a severe anxiety
which precludes her from leaving the house. Chronic pain is also an issue in terms of her ability
to function. Mr. Heilmeier opined that Plaintiff has “significant functional limitations which
keeps her from working.” (R. at 640-41.) At that time, Mr. Heilmeier opined that Plaintiff had
moderate restriction of activities of daily living; moderate limitation of social functioning;
marked limitation of concentration, persistence and pace; and marked limitation of adaptation.
(R. at 593.)
On March 7, 2014, Dr. Roach opined on a BWC Physician’s Report of Work Ability
form that Plaintiff was moderately impaired in her activities of daily living and markedly
impaired in her ability to engage in social functioning; maintain concentration, persistence, and
pace; and in adaptation. (R. at 596.) He indicated that Plaintiff had not reached maximum
medical improvement with regard to her depression. (Id.)
In April 2014, Mr. Heilmeier opined that Plaintiff was mildly impaired in her activities of
daily living and markedly limited in her ability to engage in social functioning; maintain
concentration, persistence, and pace; and in adaptation. (R. at 591.)
Plaintiff continued to treat with Dr. Roach and Mr. Heilmeier through at least May 2014.
(R. at 589-614, 624-41.) During their sessions, Plaintiff discussed depression, difficulty
concentration, poor self-esteem, anxiety, and a sense of hopeless. (Id.)
Kathryn Bobbitt, Ph.D.
On January 16, 2013, Plaintiff was evaluated by consultative examiner, Dr. Bobbitt on
behalf of the Ohio Department of Job & Family Services. (R. at 500-05.) Plaintiff reported that
she was unable to work due to panic disorder, reporting a panic attack earlier that day due to bad
weather. (R. at 502.) Plaintiff said she was afraid to drive, but she loved to read, crochet, knit,
play cards, and garden. (R. at 504.) Dr. Bobbitt observed that Plaintiff was an effective
communicator, logical, conversant, and good-natured, with a good understanding of limitations
and seemingly authentic desire to overcome fears. (R. at 505.) Dr. Bobbitt opined that Plaintiff
had moderate limitations in her ability to understand, remember, and carry out detailed
instructions; accept instructions and get along with coworkers; and maintain attention and
concentration for extended periods. (R. at 500.) Dr. Bobbitt also believed Plaintiff was
markedly limited in performing activities within a work schedule, completing a normal work day
or week, and traveling in unfamiliar places. (Id.) Dr. Bobbitt concluded that Plaintiff was
employable, but she would require would require mental health intervention to be successful.
State Agency Evaluations
On September 24, 2012, after review of Plaintiff’s medical record, Bruce Goldsmith,
Ph.D., a state agency psychologist, assessed Plaintiff’s mental condition and opined that Plaintiff
had mild restrictions in her activities of daily living; moderate difficulties in maintaining social
functioning, moderate difficulties in maintaining concentration, persistence, or pace; with no
episodes of decompensation of an extended duration. (R. at 75.) He further determined that the
evidence did not establish the presence of the “C” criteria. (Id.) Dr. Goldsmith gave great
weight to Dr. McKinney’s opinion finding it based on medically acceptable clinical and
diagnostic techniques. (R. at 76.)
In completing the MRFC,1 Dr. Goldsmith opined that Plaintiff was moderately limited in
her abilities to understand and remember and carry out detailed instructions; to maintain
attention and concentration for extended periods, to complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods; to interact appropriately with the
general public; and to respond appropriately to changes in the work setting. (R. at 79-80.)
On February 7, 2013, Tonnie Hoyle, Psy.D. reviewed the record upon reconsideration
and affirmed Dr. Goldsmith’s assessment. (R. at 85-96.)
“MRFC” is a residual functional capacity which limits its consideration to mental
Evidence Submitted Pursuant to Sentence Six Remand
Plaintiff was evaluated by Nicolaas Dubbeling, Ph.D., on behalf of the BWC on August
22, 2014. (R. 686-91.) Dr. Dubbeling found Plaintiff was oriented, with intact memory and
judgment, and normal speech and thought processes. (R. at 688-89.) Dr. Dubbeling noted that
Plaintiff became increasing outgoing during the interview. (R. at 687.) She did not display any
symptoms of anxiety. (R. at 688.) Plaintiff endorsed a lifelong history of depression and poor
concentration, although she also mentioned that she enjoyed school. (R. at 688.) She had taken
Effexor for nine months, which she indicated helped. (R. at 689.) Plaintiff alleged physical
limitations due to her injuries, such as difficulty washing her hair and dressing. (Id.) Dr.
Dubbeling opined that Plaintiff had not reached maximum improvement and may need more
than 14 therapy sessions over the next 6 months. (Id.) Dr. Dubbeling stated that due to the
severity of Plaintiff’s depression, she was unable to return to her former position, and “in a
general sense, her psychological condition precludes her from any competitive employment.”
(R. at 690.)
On August 18, 2014, the ALJ issued her decision. (R. at 14–28.) The ALJ found that
Plaintiff last met the insured status requirements of the Social Security Act through December 1,
2015. (R. at 16.) At step one of the sequential evaluation process,2 the ALJ found that Plaintiff
had not engaged in substantially gainful employment since June 23, 2008, the alleged onset date.
(Id.) The ALJ found that Plaintiff had the severe impairments of degenerative disc disease,
lumbar radiculopathy, cervical radiculopathy, depression, general anxiety disorder, and panic
disorder without agoraphobia. (Id.) She further found that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled one of the listed impairments
described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 17-18.) At step four of the
sequential process, the ALJ set forth Plaintiff’s RFC as follows:
Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
After careful consideration of the entire record, the [ALJ] finds that the [Plaintiff]
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except she can frequently push and pull with the bilateral upper
extremities and lower extremities; frequently climb ramps and stairs, stoop, kneel,
crouch and crawl; never climb ladders, ropes or scaffolds; and frequently reach
overhead with the bilateral upper extremities. She should avoid concentrated
exposure to workplace hazards, including operation of hazardous machinery. She
retains the ability to understand, remember and carry out simple, routine,
repetitive tasks consistent with unskilled work in an environment without demand
for fast pace with infrequent superficial interaction with the general public and
appropriate interactions with supervisors and coworkers in a setting where change
is infrequent and easily explained.
(R. at 18-19.) In reaching her conclusions regarding Plaintiff's RFC, the ALJ accorded great
weight to the opinions of the state agency consultants, Dr. Hughes and Dr. Pylaeva, finding their
opinions are generally consistent with the medical evidence, which shows treatment for back and
neck injuries after an accident at work with improvement of her injuries over time; they are
familiar with the evidentiary requirements for making disability determinations under the Social
Security Act; and the record does not contain a medical opinion from a treating source that
further limits Plaintiff’s work-related activities. (R. at 23-24.)
The ALJ accorded little weight to Dr. Pinsky’s October 2011 opinion, because Plaintiff
had not yet reached maximum medical improvement and the restrictions he imposed were
temporary. (R. at 24.) The ALJ accorded little weight to Dr. Onamusi’s June 2012 opinion,
because the limitations therein were not supported by medical evidence. (Id.) The ALJ accorded
some weight to the opinion of Dr. Brockwell, first noting that her statement that Plaintiff was
“unemployable” is not a medical opinion, but rather, an issue reserved for the Commissioner,
and finding the remainder of her opinion supported by the longitudinal medical records. (R. at
As to Plaintiff’s MRFC, the ALJ gave “great weight” to the opinions of state agency
psychological consultants, Dr. Goldsmith and Dr. Hoyle, noting that these psychologists were
experts and familiar with the Social Security disability standards, and their opinions were
consistent with the medical evidence of record. (R. at 24.) The ALJ gave “some weight” to Dr.
Andronic’s opinion, discounting it because it was not supported by treatment records, which
showed improvement, and because it was based on Plaintiff’s subjective representation. (R. at
26.) The ALJ accorded partial weight to the opinion of Dr. McKinney, noting her opinion finds
some support in the findings at the consultative examination, but her opinion is not supported by
the longitudinal records regarding Plaintiff’s mental health, as the record shows improvement of
Plaintiff’s mental health symptoms with treatment. (R. at 25.) The ALJ accorded some weight
to Dr. Bobbitt’s and Dr. Roach’s opinions regarding Plaintiff’s marked limitations finding it not
supported by Plaintiff’s mental health treatment records, which show improvement with
treatment. (R. 25-26.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform other jobs
that exist in significant numbers in the national economy. (R. at 27-28.) He therefore concluded
that Plaintiff was not disabled under the Social Security Act. (R. at 28.)
STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “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.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
In her Statement of Errors, Plaintiff first asserts that the ALJ erred in giving greater
weight to the opinions of state agency reviewers than to the numerous opinions from examining
sources, without sufficient justification. (ECF No. 12 at 8). Plaintiff next argues that the MRFC
is not supported by substantial evidence, because the ALJ failed to recognize Dr. Roach as a
treating psychologist and failed to provide adequate reasons for rejecting opinions of Drs. Roach
and Andronic. (Id. at 13). Plaintiff also requests that this case be remanded under sentence six
of 42 U.S.C. § 405(g). (Id. at 22). The Court discusses each of these contentions of error in turn.
A. Opinion Evidence – Physical RFC
Plaintiff first contends that the ALJ erred by giving greater weight to the state agency
reviewers’ opinions than the opinions from examining sources. As a consequence, according to
Plaintiff, the ALJ’s RFC is not supported by substantial evidence. A review of the record
reveals, however, that the ALJ articulated appropriate reasons for giving greater weight to
opinions of the state agency physicians, who have extensive expertise in the Social Security
disability process and who reviewed Plaintiff’s subjective statements and longitudinal treatment
records, rather than the opinions of one-time physicians who examined Plaintiff pursuant to her
workers’ compensation claim.
The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(c); see also SSR 96–8p 1996 WL 374184, at *7 (July 2,
1996) (“The RFC assessment must always consider and address medical source opinions.”). The
applicable regulations define medical opinions as “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.” 20 C.F.R. § 416.927(a)(2).
Regardless of the source of a medical opinion, in weighing the opinion, the ALJ must
apply the factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the source. In addition, the regulations provide that where the ALJ does
not assign controlling weight to the claimant’s treating physician, he or she must explain the
weight assigned to the opinions of the medical sources:
Unless a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, as the administrative law judge must do
for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.
20 C.F.R. § 416.927(e)(2)(ii). Where an ALJ’s opinion satisfies the goal of § 416.927 and is
otherwise supported by substantial evidence, the failure to explicitly provide the weight assigned
is harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005)
(harmless error where the ALJ failed to mention or weigh the report of consultative neurologist
who only evaluated plaintiff once and was not a treating source). Ultimately, however, the ALJ
is vested with the discretion to determine the weight that each opinion is due. See Justice v.
Comm’r of Soc. Sec., 515 F. App’x 583, 588 (6th Cir. 2013) (noting ALJ is charged with
evaluating experts’ findings and reaching reasoned determination as to claimant’s disability
The ALJ’s assessment of Plaintiff’s RFC is supported by substantial evidence. The ALJ
did not err in evaluating the opinion evidence. As the ALJ properly noted, Plaintiff’s treating
physicians provided no opinions supporting functional limitations. Indeed, Plaintiff’s treating
physician, Dr. DeNunzio, did not impose any permanent functional restrictions on Plaintiff. His
findings on physical examination were consistently unremarkable and treatment
recommendations were conservative. (R. at 370-87, 425-35, 452, 465-83, 559, 582). See Rudd
v. Comm’r of Soc. Sec., 531 F. App’x, 719, 727 (6th Cir. 2013) (minimal or lack of treatment is
valid reason to discount severity).
Given the absence of any treating physician opinions, the ALJ gave “great weight” to the
opinions of state agency medical consultants, Dr. Hughes and Dr. Pylaeva, in assessing
Plaintiff’s RFC. These doctors reviewed the evidence of record and opined that Plaintiff could
perform work at the light exertional level. (R. at 70-79, 85-94.) Both doctors observed that
Plaintiff’s allegations were not substantiated by the objective medical evidence and her activities
of daily living were not consistent with disabling limitations. The ALJ appropriately accorded
these opinions great weight because they were generally consistent with medical evidence, which
showed improvement for back and neck injuries with treatment .
Plaintiff points to the reports from several physicians who examined Plaintiff pursuant to
her workers’ compensation claim. The ALJ explained with good reasons why she accorded
these opinions less weight. The ALJ assigned little weight to Dr. Pinsky’s opinion of October
2011 because Plaintiff had not yet reached maximum medical improvement and the restrictions
were temporary. (R. at. 24, 681-85.) Plaintiff maintain that the ALJ erred in rejecting Dr.
Pinsky’s opinion for this reason, asserting that Plaintiffs improvement was only temporary.
Contrary to Plaintiff’s assertion, Plaintiff consistently reported improvement with treatment,
particularly steroid injections and chiropractic treatment . (R. at 336, 340, 424, 428, 430-31,
533, 535, 627, 635, 659, 663). She complained because workers’ compensation declined to
continue financing the treatment she claimed was highly effective, not because treatment was
unhelpful. (R. at 609-11, 627, 635.)
The ALJ also gave little weight to Dr. Onamusi’s opinion of June 2012, because the
limitations he imposed were not supported by medical evidence. See 20 C.F.R. § 416.927(c)
(ALJ must review examining and treatment relationship, supportability of the opinion, and
consistency of the opinion with the record as a whole). The ALJ accorded some weight to the
opinion of Dr. Brockwell. She first properly noted that her statement that Plaintiff was
“unemployable” is not a medical opinion, but rather, an issue reserved for the Commissioner. 20
C.F.R. § 404.1527(d). As the Court of Appeals for the Sixth Circuit has held, when a treating
physician submits an opinion on an issue reserved to the Commissioner, the opinion is “not
entitled to any particular weight,” and the ALJ “need only explain the consideration” it was
given. Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 505 (6th Cir. 2013) (unpublished)
(internal quotation marks omitted). The ALJ discounted the remainder of Dr. Brockwell’s
opinion to the extent it was inconsistent with the RFC because it was not supported by the
longitudinal treatment records.
Plaintiff argues that the ALJ neglected to present any evidence or cite to any findings
with regard to her conclusion that Dr. Brockwell’s opinions were not supported by the
longitudinal medical records. The Undersigned disagrees and finds that ALJ conclusions are
supported by substantial evidence. The ALJ cited a number of specific findings in the record
that were inconsistent with Dr. Brockwell’s limitations, including Dr. DeNunzio’s findings on
physical examination that showed completely normal muscle strength, tone, coordination, and
range of motion (R. at 468-69, 579); notes that Plaintiff’s pain improved with epidural steroid
injections (R. at 430); Dr. Zerick’s comment that Plaintiff was doing “markedly better” after an
epidural steroid injection (R. at 338); Plaintiff’s statements that she felt stronger and experienced
less pain after physical therapy and felt “like a new human being” after neck surgery (R. at 450,
458); and the chiropractor’s reports that Plaintiff showed “very noticeable improvement” after
chiropractic adjustment. (R. at 535). Plaintiff further faults the ALJ for purportedly failing to
explain how Dr. Brockwell’s opinions support the RFC, contrary to the requirement for a
“logical bridge” between the evidence of record and her RFC determination. A plaintiff’s RFC
“is defined as the most a [plaintiff] can still do despite the physical and mental limitations
resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155 (6th Cir.
2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of RFC is an issue
reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e). The RFC is based on all
of the evidence of record, not just the medical opinions. The regulations do not require and ALJ
to explain how one doctor’s opinion supports the RFC. This is particularly so where, as here, the
ALJ assigned Dr. Brockwell’s opinion only partial weight.
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted). Thus, an ALJ is not
required to produce a detailed statement linking each element in the RFC to the specific evidence
Plaintiff contends that the ALJ’s reliance on the opinions of the state agency physicians
violates Social Security rules and regulations because the state agency examiners did not have
access to the medical opinions of Drs. Pinsky, Onamusi, and Brockwell. Plaintiff then speculates
that, had these physicians seen these opinions, “there is little question their opinions would have
been altered.” (Pl’s Stmt of Errors at 12.) This supposition, however, does not bear out in the
record. Drs. Hughes and Pylaeva had access to treatment records through July 2012,
psychological consultative examination reports from September 2012, and Plaintiff’s
representations to the Commissioner in Disability and Function reports. Importantly, the
opinions of Dr. Pinsky, Onamusi, and Brockwell were offered for the purposes of determining
whether Plaintiff had reached maximum medical improvement and whether additional treatment
under the workers’ compensation claim was warranted. Their opinions were never designed to
assess whether Plaintiff could perform any work in the national economy or was disabled under
Social Security regulations. Plaintiff provides no support for the assertion that the state agency
physicians, Drs. Hughes and Pylaeva, would have altered their opinions based on these one-time
workers’ compensation evaluations.
It is therefore RECOMMENDED that this Statement of Error be OVERRULED.
A. Weighing Opinion Evidence – Mental RFC (MRFC)
Plaintiff next contends that the MRFC is not supported by substantial evidence.
Specifically, Plaintiff asserts that the MRFC is not supported by substantial evidence because the
ALJ did not recognize Dr. Roach as a treating psychologist (whom the ALJ characterized as an
examining psychologist) and failed to provide adequate reasons for rejecting opinions of Drs.
Roach and Andronic. The Undersigned disagrees.
The ALJ generally gives deference to the opinions of a treating source “since these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. §
416.927(c)(2); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the treating
physician’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant's] case
record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). If the ALJ does
not afford controlling weight to a treating physician’s opinion, the ALJ must meet certain
procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Specifically, if an ALJ does not give a treating source’s opinion controlling weight:
[A]n ALJ must apply certain factors-namely, 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 the specialization of the treating source-in
determining what weight to give the opinion.
Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination
or decision for the weight [the ALJ] give[s] your treating source's opinion.” 20 C.F.R. §
416.927(c)(2). Accordingly, the ALJ’s reasoning “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.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550
(6th Cir. 2010) (internal quotation omitted).
Plaintiff argues that the ALJ erred in failing to recognize Dr. Roach as a treating source,
and, therefore, failed to consider whether Dr. Roach’s opinion warranted controlling weight. To
qualify as a treating source, the physician must have an “ongoing treatment relationship” with
the claimant. 20 C.F.R. § 404.1502. The Court must determine whether or not an ongoing
treatment relationship exists at the time the physician’s opinion is rendered. Kornecky v.
Comm’r of Soc. Sec., No. 04-2171, 167 F. App’x 496, 506 (6th Cir. Feb. 9, 2006) (“[T]he
relevant inquiry is . . . whether [claimant] had the ongoing relationship with [the physician] at
the time he rendered his opinion. [V]isits to [the physician] after his RFC assessment could not
retroactively render him a treating physician at the time of the assessment.”); see also Yamin v.
Comm’r of Soc. Sec., 67 F. App’x 883, 885 (6th Cir. 2003) (“These two examinations did not
give [the physician] a long term overview of [the claimaint’s] condition.”). This is because “the
rationale of the treating physician doctrine simply does not apply” where a physician issues an
opinion after a single examination. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
In the instant case, Dr. Roach first evaluated Plaintiff on September 5, 2013, and issued
an opinion that same day. (R. at 608-12.) After this initial interview, Plaintiff had three
counseling sessions with social worker Mr. Heilmeier from Weinstein & Associates, where Dr.
Roach is also employed. Dr. Roach provided a second opinion on March 7, 2014, after his
second meeting with Plaintiff, indicating that Plaintiff would begin psychotherapy after her
treatment was approved by the BWC. (R. at 596-97.) These two examinations simply did not
give Dr. Roach a long-term overview of Plaintiff’s mental condition. Yamin, 67 F. App’x at 885.
Plaintiff maintains that the Commissioner fails to recognize the type of treatment that was
being provided in this case. She suggests that the three sessions she attended with the social
worker in the practice of Weinstein & Associates “were certainly accessible to and reviewed by
the treating psychologist, Dr. Roach, prior to the formulation of his opinions.” (Pl’s Reply, at
p.4.) That very likely is true, but the record contains no evidence of it. While recognizing the
benefits of multidisciplinary mental-health practices in providing important treatment, the Court
declines the invitation to extend the treating physician rule under the circumstances presented
here. To do so would elevate the opinions of the social worker, with whom Plaintiff had only
three appointments at the time of Dr. Roach’s second report, to treating physician status, which
the regulations prohibit. See 20 C.F.R. § 404.1513(d) (counselors and social welfare workers not
considered acceptable medical sources but are “other sources”).
Plaintiff also contends that the ALJ failed to articulate good reasons for rejecting the
opinions of Dr. Andronic. As noted above, the ALJ gave “some weight” to Dr. Andronic’s
opinion but discounted it because it was not supported by treatment records, which showed
improvement, and because it was based on Plaintiff’s subjective representations. Plaintiff takes
issue with the ALJ’s assessment that she improved over time and maintains this conclusion is not
supported by the ALJ’s citations to the record. The Undersigned disagrees and concludes that
substantial evidence supports the ALJ’s determinations.
The ALJ discounted Dr. Andronic’s opinion as follows:
Dr. Andronic also opined that [Plaintiff] has marked limitation to the abilities to
relate to the general public and maintain socially appropriate behavior; and to
perform at production levels expected by most employers. . . . Dr. Andronic
opined that [Plaintiff] would likely have partial or full day unscheduled absences
from work five or more days per month due to her impairments . . . . Dr.
Andronic’s opinion regarding [Plaintiff] marked limitations is not supported by
[Plaintiff’s] mental health treatment records, which show improvement with
treatment. . . . Thus, only some weight is given to this opinion.
(R. at 26.)
The ALJ provided good reasons for discounting the opinion of Plaintiff’s treating
psychologist as being not supported by treatment records which show improvement with
treatment. Plaintiff first treated with Dr. Andronic in September 2013. At that time, she reported
panic attacks multiple times every day. (R. at 620-23.) By February 2014, Plaintiff reported
improvement, despite not being compliant with Effexor. (R. at 618-20.) In May 2014, Plaintiff
told Dr. Andronic that Effexor helped “a lot” and she no longer had panic attacks. (R. at 616.)
Moreover, Plaintiff’s therapists consistently noted improvement with therapy. (R. 590-91, 604,
606, 631, 639.) This substantial evidence is consistent with and supports the ALJ’s finding of
Plaintiff also challenges the ALJ’s finding that Dr. Andronic’s opinions were based on
Plaintiff’s subjective complaints as “nothing more than speculation.” (Pl’s Stmt of Errors, at p.
20.) The ALJ actually said that Dr. Andronic had noted that her opinion regarding Plaintiff’s
likely deterioration if placed under stress was based upon the Plaintiff’s statement that she would
have panic attacks if put under stress. And the record bears out this assertion. Dr. Andronic
acknowledged that her opinion with respect to Plaintiff’s response to stress, particularly if she
returned to work, was based on Plaintiff’s representations. (R. at 544 (“Per Client”).)
The ALJ found that Plaintiff had moderate difficulties in social functioning and
concentration, persistence, or pace, and properly accounted for these limiattions in the RFC. The
ALJ explained how the medical evidence and other evidence of record supported these findings.
Boseley v. Comm’r of Soc. Sec. Admin., 397 F. App’x 195, 199 (6th Cir. 2010) (“Neither the ALJ
nor the Council is required to discuss each piece of data in its opinion, so long as they consider
the evidence as a whole and reach a reasoned conclusion.”) The ALJ did not commit reversible
error in how she weighed the medical evidence In sum, the ALJ’s MRFC assessment is
supported by substantial evidence. It is therefore RECOMMENDED that this Statement of
Error be OVERRULED.
B. Sentence Six Remand
Plaintiff maintains that a sentence six remand is appropriate to consider the evaluation of
Dr. Dubbeling dated August 22, 2014, four days after the ALJ’s decision. Dr. Dubbeling
evaluated Plaintiff for purposes of determining whether she had reached maximum medical
improvement for her allowed condition of dysthymic disorder. The Undersigned concludes that
Dr. Dubbeling’s opinion does not provide a basis for a sentence-six remand.
Sentence six of 42 U.S.C. § 405(g) provides in relevant part as follows:
The Court may, on motion of the Secretary made for good cause shown before he
files his answer, remand the case to the Secretary for further action by the
Secretary, and it may at any time order additional evidence to be taken before the
Secretary, but only upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding . . . .
42. U.S.C. § 405(g). “Sentence-six remands may be ordered in only two situations: where the
Secretary requests a remand before answering the complaint, or where new, material evidence is
adduced that was for good cause not presented before the agency.” Shalala v. Schaefer, 509 U.S.
292, 297 n.2 (1993) (citations omitted). The requirements that the evidence be “new” and
“material,” and that “good cause” be shown for the failure to present the evidence to the ALJ
have been defined by the United States Court of Appeals for the Sixth Circuit as follows:
“For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was
‘not in existence or available to the claimant at the time of the administrative
proceeding.’ . . . Such evidence is ‘material’ only if there is ‘a reasonable
probability that the Secretary would have reached a different disposition of the
disability claim if presented with the new evidence.’ . . . A claimant shows ‘good
cause’ by demonstrating a reasonable justification for the failure to acquire and
present the evidence for inclusion in the hearing before the ALJ . . . . [T]he
burden of showing that a remand is appropriate is on the claimant.”
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (quoting Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001).
Plaintiff maintains that the record contains “new and material evidence” in the form of
Dr. Dubbelins’s opinion that was not submitted during administrative proceedings. The parties
agree that the material is new. They disagree, however, as to whether it is material. Plaintiff
contends that there is a reasonable probability that the ALJ would have reached a different
conclusion had Dr. Dubbeling’s opinion been in the record because it “directly refutes the ALJ’s
mistaken belief that [Plaintiff’s] condition improved.” (Pl’s Stmt of Errors, at p. 23.) Plaintiff
suggests that that Dr. Dubbeling’s comment that the therapy notes from her sessions with Dr.
Roach and Mr. Heilmeier “do not indicate significant improvement of her Dysthymic Disorder”
(R. at 689), would have changed the outcome of this case.
Dr. Dubbeling’s evaluation in fact bolsters the ALJ’s determination that Plaintiff
improved with treatment and medication. Plaintiff once complained of daily panic attacks. She
reported only two panic attacks to Dr. Dubbeling, one in 2007 and another in 2013. (R. at 688.)
Plaintiff reported improvement on Effexor, which she had been taking for nine months at the
time of the assessment. (R. at 689.) Dr. Dubbeling opined that Plaintiff has not reached
maximum improvement for her dysthymic disorder and could need more than 14 therapy
sessions over the 6 months to achieve it. (Id.) That he mentions her treatment notes from Dr.
Roach and Mr. Heilmeier “do not indicate significant improvement” fails to subtract from the
substantial evidence upon which the ALJ relied in making her determination of Plaintiff’s
MRFC. Plaintiff has failed to demonstrate that the evidence for which she seeks a sentence-six
remand is material.
For the foregoing reasons, it is RECOMMENDED that the Court OVERRULE
Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
Date: February 21, 2017
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
Chief United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?