Mirgon v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Statement of Errors (Doc. No. 9 ) be GRANTED; 2. The Court REVERSE the Commissioner's non-disability determination; 3. No finding be made as to whether Plaintiff was under a "disability" within the meaning of the Social Security Act; 4. This matter be REMANDED to the Social Security Administration under Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Order; and 5. This case be terminated on the Court's docket. Objections to R&R due by 9/13/2024. Signed by Magistrate Judge Caroline H. Gentry on 8/30/2024. (acw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)
JOHN M., 1
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. 2:23-cv-02717
District Judge Sarah D. Morrison
Magistrate Judge Caroline H. Gentry

REPORT AND RECOMMENDATIONS 2
Plaintiff filed an application for Disability Insurance Benefits in May 2021.
Plaintiff’s claim was denied initially and upon reconsideration. After a hearing at
Plaintiff’s request, the Administrative Law Judge (ALJ) concluded that Plaintiff was not
eligible for benefits because he was not under a “disability” as defined in the Social
Security Act. The Appeals Council denied Plaintiff’s request for review. Plaintiff
subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
Court to affirm the non-disability decision. For the reasons set forth below, the

See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
1

See 28 U.S.C. § 636(b)(1). The notice at the end of this opinion informs the parties of their ability to file
objections to this Report and Recommendations within the specified time period.
2

undersigned Magistrate Judge recommends that the Court REVERSE the
Commissioner’s decision and REMAND for further proceedings.
I.

BACKGROUND
Plaintiff asserts that he has been under a disability since November 23, 2020. At

that time, he was forty years old. Accordingly, Plaintiff was considered a “younger
person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). Plaintiff has a
“high school education and above.” See 20 C.F.R. § 404.1564(b)(4).
The evidence in the Administrative Record (“AR,” Doc. No. 7) is summarized in
the ALJ’s decision (“Decision,” Doc. No. 7-2 at PageID 37-54), Plaintiff’s Statement of
Errors (“SE,” Doc. No. 9), the Commissioner’s Memorandum in Opposition (“Mem. In
Opp.,” Doc. No. 11), and Plaintiff’s Reply Memorandum (“Reply,” Doc. No. 12). Rather
than repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
II.

STANDARD OF REVIEW
The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. §§ 402, 423(a)(1), 1382(a).
The term “disability” means “the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 20 C.F.R.
§ 404.1505(a).

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This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted). This standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the

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ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
III.

FACTS
A.

The ALJ’s Factual Findings

The ALJ was tasked with evaluating the evidence related to Plaintiff’s application
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security Regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1:

Plaintiff has not engaged in substantial gainful activity since
November 23, 2020, the alleged onset date.

Step 2:

He has the severe impairments of major depressive disorder,
cannabis use disorder, generalized anxiety disorder, and
schizoaffective disorder/schizophrenia.

4

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity (RFC), or the most he can do despite
his impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002), consists of “a full range of work at all exertional
levels but with the following nonexertional limitations: capable of
performing simple, routine and/or repetitive tasks over the course of
a normal workday and work week without interference from
significant psychologically[-]based symptoms; able to adapt to the
customary demands of work in a competitive work setting where
tasks are simple, routine; no work with the general public; capable of
brief and superficial contact with coworkers. Superficial defined as
impersonal interaction with coworkers, but adequate interaction to
perform duties assigned.”
He is unable to perform any of his past relevant work.

Step 5:

Considering Plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that he can perform.

(Decision, Doc. No. 7-2 at PageID 42-50.) These findings led the ALJ to conclude that
Plaintiff does not meet the definition of disability and so is not entitled to benefits. (Id. at
PageID 50.)
B.

State Agency Psychological Consultants

Maria Yapondjian-Alvarado, Psy.D. completed a Disability Determination
Explanation form in September 2021. (AR, Doc. No. 7-3 at PageID 143-48.) Dr.
Yapondjian-Alvarado found moderate impairment in the “Paragraph B” areas of:
interacting with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself. (Id. at PageID 144.) She found mild impairment in the area of
understanding, remembering, or applying information. (Id.) More specifically, Dr.
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Yapondjian-Alvarado opined that Plaintiff was moderately limited in the abilities of
interacting with the general public, accepting instructions and responding appropriately to
criticism from supervisors, and getting along with coworkers or peers without distracting
them or exhibiting behavioral extremes. (Id. at PageID 147.) In terms of functional
limitations, Dr. Yapondjian-Alvarado opined:
[Plaintiff] is capable of performing simple, routine and/or repetitive tasks.
[Plaintiff] should be able to sustain a simple, routine and/or repetitive task
over the course of a normal workday and work week without interference
from significant psychologically[-]based symptoms. [Plaintiff] should be
able to adapt to the customary demands of work in a competitive work
setting where tasks are simple, routine and[/]or competitive. Would do best
in a work setting away from the public and with brief and superficial
contact with coworkers[.]
(Id. at PageID 147-48.) Paul Tangeman, Ph.D. reviewed the updated record at the
reconsideration level in January 2022. (Id. at PageID 154-58.) Dr. Tangeman indicated
that he affirmed Dr. Yapondjian-Alvarado’s assessment. (Id.)
The ALJ concluded that the state agency psychological consultants’ findings were
persuasive. (Decision, Doc. No. 7-2 at PageID 48.) The ALJ explained that their
assessments were “well supported by and consistent with the evidence of record,
including [Plaintiff’s] limited mental health treatment.” The ALJ noted that Plaintiff
underwent a consultative psychological evaluation after the consultants completed their
assessments, but that “objective findings were limited, noting intact memory, attention,
concentration, [and] fund of knowledge (Exhibit 17F).” (Id.) The ALJ also cited
Plaintiff’s report that “he continued to receive virtually no treatment.” (Id.) The ALJ

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concluded: “Therefore, the evidence received since these opinions were offered do not
reasonably suggest greater limitations.” (Id.)
C.

The ALJ’s Hypothetical and Vocational Expert Testimony

The ALJ posed the following hypothetical question to the vocational expert (VE)
at the June 2022 hearing:
First, I want you to consider that [Plaintiff] retained the ability to do work
at all exertional levels, mentally capable of performing simple, routine
work task[s] over the course of a normal workday and work week without
interference from significantly psychologically[-]based symptoms. Able to
adapt to the customary demands of work in a competitive work setting,
work tasks are simple [and] routine. No work with the general public,
capable of brief and superficial contact with coworkers, superficial defined
as impersonal interaction but the interaction is adequate to perform duties
assigned.
(AR, Doc. No. 7-2 at PageID 78.)
The VE responded that such an individual could perform the following medium,
unskilled jobs: Janitor, Dictionary of Occupational Titles (DOT) code 381.687-018,
approximately 59,420 positions nationally; Linen Room Attendant, DOT code 222.387030, approximately 52,220 positions nationally; and Laundry Worker, DOT code
361.685-018, approximately 125,000 positions nationally. (AR, Doc. No. 7-2 at PageID
79.) The ALJ cited to this testimony to support his conclusion that Plaintiff is “capable of
making a successful adjustment to other work that exists in significant numbers in the
national economy” and that he is not disabled. (Decision, Doc. No. 7-2 at PageID 49-50.)
IV.

LAW AND ANALYSIS
Plaintiff asserts just one error: The ALJ “failed to adequately account for all of the

state agency psychologists’ opined restrictions,” despite finding those opinions to be
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persuasive, and so the ALJ’s RFC is unsupported by substantial evidence. (SE, Doc. No.
9 at PageID 781-83.) For the reasons discussed below, Plaintiff’s assertion is well-taken,
and the ALJ’s decision should be reversed.
A.

Applicable Law.

ALJs are required to analyze the persuasiveness of “all of the medical opinions” in
the record. 20 C.F.R. § 404.1520c (emphasis added). A “medical opinion” is a “statement
from a medical source about what [an individual] can still do despite [his] impairment(s)”
and whether the individual has one or more impairment-related limitations or restrictions.
20 C.F.R. § 404.1513(a)(2). By contrast, a statement from a medical source about an
issue reserved to the Commissioner—such as whether an individual is disabled—need
not be addressed by the ALJ. 20 C.F.R. § 404.1520b(c)(3).
Because Plaintiff filed his claim after March 27, 2017, the new regulations for
evaluating medical opinion evidence applied. Under these regulations, the ALJ “will not
defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s) . . . .” 20 C.F.R.
§ 404.1520c(a). Instead, the ALJ must evaluate the persuasiveness of each medical
opinion and prior administrative medical finding by considering the following factors: (1)
supportability; (2) consistency; (3) relationship with the plaintiff; (4) specialization; and
(5) any other factor “that tend[s] to support or contradict a medical opinion or prior
administrative medical finding.” 20 C.F.R. § 404.1520c(c).
The first two factors—supportability and consistency—are the “most important.”
20 C.F.R. § 404.1520c(b)(2) (emphasis added). The supportability factor recognizes that
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“[t]he more relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion(s) . . . the more
persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). Therefore, an
ALJ’s supportability analysis addresses whether a medical professional has sufficient
justification for their own conclusions. See Crystal E.J. v. Comm’r of Soc. Sec., No. 2:21CV-04861, 2022 WL 2680069 (S.D. Ohio July 12, 2022) (Preston Deavers, M.J.); accord
Burke v. O’Malley, No. 8:23-cv-415, 2024 U.S. Dist. LEXIS 48944, *8 (M.D. Fla. Mar.
20, 2024) (“Supportability addresses the extent to which a medical source or consultant
has articulated record evidence bolstering her own opinion or finding.”).
The consistency factor, by contrast, recognizes that “[t]he more consistent a
medical opinion(s) . . . is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R.
§ 404.1520c(c)(2). The ALJ’s consistency analysis therefore must compare the medical
opinion at issue to evidence from “other medical and nonmedical sources.” Ford v.
Comm’r of Soc. Sec., No. 1:22-CV-00524, 2023 WL 2088157, at *17 (N.D. Ohio Jan. 31,
2023).
The distinction between the supportability and consistency factors is relatively
clear when the opinion is from a treating provider. Providers commonly rely on the
records in their possession—including progress notes, test results, statements from the
claimant, and opinions from other medical providers—to support their medical opinions.
An ALJ can readily identify a provider’s records that purportedly support their opinion
and use them to analyze supportability. Then, when analyzing consistency, the ALJ can
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readily compare the provider’s opinion to opinions and evidence from other providers.
Because each factor (supportability and consistency) considers different evidence, the
reviewing court can easily determine whether the ALJ has addressed each factor.
It can be more challenging to distinguish between supportability and consistency
when the opinion is from a state agency consultant. Because they do not have their own
treatment records, consultants must review and rely upon documents in the administrative
record to support their opinions. The ALJ will, however, consider documents from the
same administrative record when analyzing both supportability and consistency. If the
consultant’s report clearly identifies the documents relied upon to support their opinions,
then the ALJ can conduct a supportability analysis that is based on those documents. But
if the consultant’s report does not clearly identify the documents that support their
opinions, then the ALJ’s ability to conduct separate supportability and consistency
analyses will be limited. See Kenneth B. v. Comm’r of Soc. Sec., No. 3:22-cv-672, 2024
U.S. Dist. LEXIS 49191 (W.D. Ky. Mar. 19, 2024) (citing Tyrone H. v. Comm’r of Soc.
Sec., No. 2:22-cv-3652, 2023 WL 2623571, *6 (S.D. Ohio Mar. 24, 2023)).
Because they are the most important factors, the ALJ is required not only to
consider the supportability and consistency of all medical opinions in the record, but also
to “explain how he or she considered them.” 3 Dayna S. v. Comm’r of Soc. Sec., 3:21-CV00326, 2023 WL 2009135, at *5 (S.D. Ohio Feb. 15, 2023) (Gentry, M.J.) (citing to 20
C.F.R. § 404.1520c(b)(2) (internal punctuation omitted and emphasis added)). No
By contrast, the ALJ “may, but [is] not required to,” explain the consideration given to the remaining
factors. 20 C.F.R. § 404.1520c(b)(2).

3

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“specific level of detail” is required, as “the appropriate level of articulation will
necessarily depend on the unique circumstances of each claim.” Timothy B. v. Comm’r of
Soc. Sec., No. 2:22-CV-03834, 2023 WL 3764304, at *7 (S.D. Ohio June 1, 2023)
(Bowman, M.J.) (internal citations omitted). Thus, ALJs need not use “magic words or
any specific phrasing” to comply with the applicable regulations. Id.
Additionally, the determination of the RFC is a task reserved for the ALJ. 20
C.F.R. § 404.1546(c); see also Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir.
2004) (“[T]he ALJ is charged with the responsibility of evaluating the medical evidence
and the claimant’s testimony to form an ‘assessment of his [RFC]’”). A claimant’s RFC
describes the most he can do in a work setting despite his physical and mental limitations.
20 C.F.R. § 404.1545(a)(1). When formulating the RFC, the ALJ must consider the
claimant’s “ability to meet the physical, mental, sensory, and other requirements of
work.” 20 C.F.R. § 404.1545(a)(4). The ALJ must base the RFC on all relevant evidence
in the record, including the claimant’s descriptions of his limitations and symptoms,
objective medical evidence, medical opinions, other medical evidence, evidence from
non-medical sources, and prior administrative medical findings. See 20 C.F.R.
§ 404.1545(a)(1)-(5).
Notably, “[t]he responsibility for determining a claimant's [RFC] rests with the
ALJ, not a physician.” Poe v. Comm'r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1546(c)). An ALJ is required to consider medical opinion
evidence when determining the RFC, but he is not required to adopt them or adopt any
such findings verbatim. Poe, 342 F. App’x at 156-57 (6th Cir. 2009). In addition, “[t]he
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determination of a plaintiff’s RFC is entirely within the purview of the ALJ, and this
Court will defer to that finding even if there is substantial evidence in the record that
would have supported an opposite conclusion.” Rieder v. Comm’r of Soc. Sec., No. 2:20CV-05858, 2021 WL 5881784, at *5 (S.D. Ohio Dec. 13, 2021) (internal quotations and
citation omitted) (Preston Deavers, M.J.).
Nevertheless, an ALJ is required “to show his or her work.” Scott K. v. Comm’r of
the SSA, No. 3:21-CV-00129, 2022 U.S. Dist. LEXIS 175673, at *11 (S.D. Ohio Sept.
27, 2022) (Silvain, M.J.) (internal citation omitted). Thus, “[t]his Court cannot uphold an
ALJ’s decision, even if there if there is enough evidence in the record to support the
decision, where the reasons given by the trier of fact do not build an accurate and logical
bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875,
877 (N.D. Ohio 2011) (cleaned up) (internal quotations and citation omitted). See also
Danyel P. v. Comm’r of Soc. Sec., No. 2:21-CV-02405, 2022 WL 1514170, at *6 (S.D.
Ohio May 13, 2022) (Preston Deavers, M.J.) (ALJ’s “inexplicable and illogical
consistency” warranted remand); Kimberly S. v. Comm’r of Soc. Sec., No. 3:21-CV00310, 2022 WL 17820565, at *3 (S.D. Ohio Dec. 20, 2022) (Silvain, M.J.) (ALJs must
“provide a coherent explanation of [their] reasoning . . . in order to provide sufficient
rationale for a reviewing adjudicator or court”); Hardiman v. Comm’r of Soc. Sec., No.
2:12-CV-00508, 2013 WL 3762266, at *5 (S.D. Ohio July 16, 2013) (Preston Deavers,
M.J.) (remanding case on the ground that “the ALJ’s decision is internally inconsistent
and incomplete”).

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B.

The ALJ’s RFC Is Not Supported By Substantial Evidence.

Plaintiff asserts that “the ALJ failed to adequately account for all of the state
agency psychologists’ opined restrictions” and so the ALJ’s RFC is unsupported by
substantial evidence. (SE, Doc. No. 9 at PageID 781-83.) This assertion is well-taken,
because the social limitations that the ALJ assessed do not account for the State agency
psychological consultant’s opinions. For that reason, and for the additional reasons
discussed below, the ALJ’s RFC limitations are not supported by substantial evidence.
The ALJ concluded that the consultants’ findings were persuasive. (Decision, Doc.
No. 7-2 at PageID 48.) However, the ALJ’s RFC limitations for no work with the general
public and brief and superficial contact with coworkers (“superficial” defined as
“impersonal interaction with coworkers, but adequate interaction to perform duties
assigned”) do not account for the consultants’ findings. The undersigned Magistrate
Judge agrees with Plaintiff’s assertion that the ALJ’s definition of “superficial” contact
with coworkers “essentially made the limitation irrelevant.” (Reply, Doc. No. 12 at
PageID 813.) Although “impersonal interactions” could constitute a reasonable definition
of “superficial,” the ALJ’s addition that Plaintiff is nevertheless capable of “adequate
interaction to perform duties as assigned” renders the superficial limitation essentially
meaningless. In other words, although it appears that the ALJ attempted to craft an RFC
limitation to account for the consultants’ opinions regarding interactions with coworkers,
the ALJ actually imposed a limitation that is less restrictive than assessed by the
consultants—without acknowledging or justifying the deviation. Therefore the ALJ did

13

not account for the consultants’ opinions that Plaintiff was moderately limited in the
ability to interact with coworkers in the RFC.
The ALJ also failed to fully account for the consultants’ findings because she did
not acknowledge or consider the consultants’ opinions regarding Plaintiff’s difficulty
with supervisory interactions. The consultants opined that Plaintiff was moderately
limited in the ability to accept instructions and respond appropriately to criticism from
supervisors. (AR, Doc. No. 7-3 at PageID 147, 157.) But the ALJ did not acknowledge or
consider this opinion in her evaluation. Nor did the ALJ include a limitation related to
supervisory interactions in the RFC or explain why she did not include one.
The ALJ therefore erred in her analysis of the State agency psychological
consultants’ opinions. The ALJ must consider and evaluate the persuasiveness of all
medical opinions and prior administrative medical findings in the record. 20 C.F.R.
§ 416.920c(b)(c) (emphasis added). Further, if the RFC assessment conflicts with an
opinion from a medical source, “the adjudicator must explain why the opinion was not
adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Here, as explained above,
the ALJ’s definition of “superficial” essentially rendered the limitation meaningless, and
so she did not account for the consultants’ opinions regarding Plaintiff’s limitations in the
area of interacting with coworkers. The ALJ also failed to consider the consultants’
opinion regarding supervisory interactions. The ALJ therefore did not explain why those
opinions were not adopted in the RFC, as required by SSR 96-8p.
Defendant cites to a case from this district to assert that the ALJ was under no
obligation to impose a limitation for superficial social interactions and that “the issue is
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whether the ALJ explained the basis for the RFC determination.” (Mem. In. Opp., Doc.
No. 11 at PageID 792 (citing Anissa H., 2023 WL 1857822, at *8 (S.D. Ohio Feb. 9,
2023) (Litkovitz, M.J.)).) Significantly, the Anissa H. court cited to a Sixth Circuit
opinion to support its conclusion that the ALJ was not required to impose a limitation to
superficial interactions. Anissa H., 2023 WL 1857822, at *8 (citing Reeves v. Comm’r of
Soc. Sec., 618 F. App'x 267, 275 (6th Cir. 2015)). The Reeves court stated that an ALJ
need not account for consultants’ findings that “are not substantially supported by
evidence in the record” and reiterated that the ALJ’s RFC determination must be
supported by substantial evidence. Reeves, 618 F. App'x at 275.
The undersigned Magistrate Judge agrees that the ALJ in this case was not
obligated to incorporate the consultants’ limitation for superficial social interactions.
However, the undersigned disagrees with Defendant’s assertion that the ALJ explained
her basis for the RFC determination, specifically why she defined “superficial” as
“impersonal interaction with coworkers, but adequate interaction to perform duties as
assigned.” See Anissa H., 2023 WL 1857822, at *8. Further, the consultants’ opinions
that Plaintiff experiences moderate difficulty interacting with coworkers and can tolerate
only superficial contacts with coworkers are “substantially supported by evidence in the
record.” See Reeves, 618 F. App'x at 275. Therefore the ALJ’s RFC, which does not
account for these opinions, is not supported by substantial evidence.
In her analysis of the State agency medical consultants’ findings, the ALJ only
generally explained that she found the state agency psychological consultants’ findings
persuasive because they were “well supported by and consistent with the evidence of
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record, including [Plaintiff’s] limited mental health treatment.” (Decision, Doc. No. 7-2
at PageID 48.) The ALJ further concluded that evidence dated after the consultants’
assessments did not support additional limitations. (Id.) The ALJ cited to “limited”
objective findings that Dr. Pawlarczyk documented during the April 2022 consultative
psychological evaluation, as well as Plaintiff’s report that he “continued to receive
virtually no treatment.” (Id.)
This limited analysis—significantly as it relates to Plaintiff’s difficulty interacting
with coworkers—is unsupported by substantial evidence. Although the ALJ reasoned that
the findings from the April 2022 consultative psychological evaluation were “limited,”
she only cited to the normal findings of intact memory, attention, concentration, and fund
of knowledge. (Decision, Doc. No. 7-2 at PageID 48.) The ALJ ignored the fact that
consultative psychologist Dr. Pawlarczyk also reported that Plaintiff’s mood was
“characterized by . . . both some anxiety and depression” and that Plaintiff’s affective
expressions were “somewhat flat” with “little variation.” (AR, Doc. No. 7-35 at PageID
760.) Dr. Pawlarczyk also stated that Plaintiff appeared somewhat tense and withdrawn,
and that Plaintiff reported daily auditory hallucinations. (Id.) He stated that although
Plaintiff maintained appropriate eye contact “for the most part,” Plaintiff “at times would
blankly stare.” (Id.) Dr. Pawlarczyk also stated that Plaintiff seemed “somewhat tense”
and “somewhat withdrawn,” which was “consistent with [Plaintiff’s] report he believed
he experienced some social anxiety.” (Id.) Dr. Pawlarczyk further reported that Plaintiff’s
performance on the Personality Assessment Inventory indicated that Plaintiff “may have
been attempting to place himself in a more socially desirable light while responding to
16

this instrument,” and suggested that Plaintiff “may have underestimated some of his
problems” during the evaluation. (Id. at PageID 762-63.)
All of this evidence, especially Dr. Pawlarczyk’s observations about Plaintiff’s
tense and withdrawn presentation, Plaintiff’s reports of daily auditory hallucinations, and
Dr. Pawlarczyk’s assessment of Plaintiff’s social anxiety, provide substantial support for
the consultants’ findings that Plaintiff was moderately limited in the ability to interact
with coworkers and should be limited to superficial interactions with them. See Reeves,
618 F. App'x at 275. Further, the ALJ’s failure to acknowledge significant evidence that
contradicts her conclusions signifies an impermissibly selective review of the record. See
Gentry, 741 F.3d at 723-23 (citing Minor v. Comm'r of Soc. Sec., 513 F. App’x 417, 435
(6th Cir. 2013) (reversing where the ALJ “cherry-picked select portions of the record”
rather than doing a proper analysis)); Germany–Johnson v. Comm'r of Soc. Sec., 313 F.
App’x 771, 777 (6th Cir. 2008) (finding error where the ALJ was “selective in parsing
the various medical reports”)).
The Court recognizes that the ALJ is not required to directly address every piece
of evidence and finding in the record. See Smith-Johnson v. Comm'r of Soc. Sec., 579 F.
App’x 426, 437 n.11 (6th Cir. 2014). Nevertheless, the ALJ’s “factual findings as a
whole must show that [she] implicitly resolved” any conflicts in the evidence. Id. Here,
the ALJ’s heavy reliance on Dr. Pawlarczyk’s “limited” findings and her failure to
acknowledge the significant abnormalities that Dr. Pawlarczyk documented shows that
the ALJ did not resolve the conflicts in the evidence when evaluating the state agency

17

psychological consultants’ findings. For these reasons, the ALJ’s analysis of the
consultants’ findings—and her RFC—are not supported by substantial evidence.
The ALJ’s analysis of the consultants’ findings is flawed for another reason. The
ALJ reasoned that the evidence documented Plaintiff’s “limited mental health treatment”
and relied on the fact that Plaintiff told Dr. Pawlarczyk he “continued to receive virtually
no treatment.” (Decision, Doc. No. 7-2 at PageID 48.) However, the ALJ did not consider
why Plaintiff’s treatment history was inconsistent with his complaints, as required by the
applicable rule:
[I]f the frequency or extent of the treatment sought by an individual is not
comparable with the degree of the individual's subjective complaints, or if
the individual fails to follow prescribed treatment that might improve
symptoms, we may find the alleged intensity and persistence of an
individual's symptoms are inconsistent with the overall evidence of record.
We will not find an individual's symptoms inconsistent with the evidence
in the record on this basis without considering possible reasons he or she
may not comply with treatment or seek treatment consistent with the degree
of his or her complaints. We may need to contact the individual regarding
the lack of treatment or, at an administrative proceeding, ask why he or she
has not complied with or sought treatment in a manner consistent with his or
her complaints. . . . We will explain how we considered the individual's
reasons in our evaluation of the individual's symptoms.
SSR 16-3p, 2017 WL 5180304, *9-10 (revised and republished Oct. 25, 2017) (emphasis
added). The Sixth Circuit has confirmed that SSR 16-3p requires an ALJ to consider
possible reasons why a claimant failed to seek medical treatment consistent with the
degree of his or her complaints “before drawing an adverse inference from the claimant’s
lack of medical treatment.” Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 119 (6th
Cir. 2016). Notably, an individual’s inability to understand the need for consistent

18

treatment and an individual’s lack of awareness that treatment is needed are two possible
reasons an ALJ should consider when evaluating treatment history. 4 SSR 16-3p at *10.
The ALJ failed to comply with SSR 16-3p because she did not consider possible
reasons that Plaintiff failed to comply with or seek treatment consistent with his degree of
complaints. Specifically, the ALJ did not consider any explanations for Plaintiff’s
noncompliance with medication. Plaintiff testified that he tried taking psychotropic
medication in the past, but “none of them seemed to work” and he was “tired of being a
guinea pig” and having to try so many pills. (AR, Doc. No. 7-2 at PageID 67.) Plaintiff
also said that the last few times that he tried taking medication, the medication made him
“really sick.” (AR, Doc. No. 7-2 at PageID 67, 75.)
Consultative psychologist Dr. Miller noted in his September 2021 report that
Plaintiff appeared to exhibit schizophrenia with auditory hallucinations but refused to
take medication at that time. (AR, Doc. No. 7-10 at PageID 454, 456.) Dr. Miller also
noted that Plaintiff said he stopped attending outpatient behavioral health treatment
because he “di[d not] think they helped [him].” (Id. at PageID 454.) When Dr.
Pawlarczyk performed a subsequent consultative psychological evaluation in April 2022,
Plaintiff said he had stopped taking Lithium because he thought it “slowed [him] down
too much.” (AR, Doc. No. 7-35 at PageID 759.) As for the other psychotropic

SSR 16-3p specifically states that a mental impairment that affects judgment, reality testing, or
orientation may prevent an individual from being aware that she has a disorder that requires treatment.
2017 WL 5180304 at *10.

4

19

medications he had taken in the past, Plaintiff said he “did not find any of these to be
helpful.” (Id. at PageID 759.)
Dr. Pawlarczyk reported that Plaintiff’s performance on the Personality
Assessment Inventory suggested that he would “likely be resistant to becoming involved
in treatment for his emotional problems, consistent with records indicating at times he
had refused medication for his condition.” (AR, Doc. No. 7-35 at PageID 762-64.)
According to Dr. Pawlarczyk, these findings suggested “the possibility of underlying
depression and psychotic symptoms [which] would seem to be quite consistent with
interview impressions of his behavior.” (Id. at PageID 763.) Moreover, Dr. Pawlarczyk
concluded that although Plaintiff had “not always consistently received the treatment
services he requires,” his avoidance of medications and treatment “may be due to
[Plaintiff’s] suspiciousness, which is likely a component of his Schizoaffective Disorder.”
(Id. at PageID 764.)
SSR 16-3p recognizes that an individual’s mental impairments and limitations
may prevent an individual from understanding the need for consistent treatment, or may
affect the individual’s judgment to the point she is unaware she has a disorder which
requires treatment. 2017 WL 5180304 at *10. In those circumstances, the ALJ should not
rely on a claimant’s treatment history to draw an adverse inference about the severity of
his or her symptoms. The ALJ did not acknowledge, much less address, Plaintiff’s or Dr.
Pawlarczyk’s explanations for medication and treatment noncompliance in her evaluation
of the state agency psychological consultants’ findings. (Decision, Doc. 7-2 at PageID
48.) Thus, the ALJ’s evaluation of the state agency psychological consultants’ findings
20

fails to comply with SSR 16-3p. This is another reason why the ALJ’s decision should be
remanded.
Defendant asserts that the ALJ’s discussion of the medical evidence elsewhere in
the decision adequately explains the basis for the ALJ’s RFC limitations. (See Mem. In.
Opp., Doc. No. 11 at PageID 792.) The Court has considered the ALJ’s factual findings
elsewhere in the decision, 5 but concludes that her decisions to define “superficial” contact
as “impersonal interaction with coworkers, but adequate interaction to perform duties
assigned” and to omit a limitation for supervisory interactions are unsupported by
substantial evidence.
At Step 3, the ALJ concluded that Plaintiff was moderately impaired in the
“Paragraph B” area of interacting with others. (Decision, Doc. No. 7-2 at PageID 43.)
The ALJ reasoned that Plaintiff “reported issues with social anxiety and preferred to stay
to himself.” (Id.) She cited the September 2021 consultative psychological evaluation,
where Plaintiff reported having no friends but appeared cooperative on examination. (Id.
(citing AR, Doc. No. 7-10 at PageID 453).) The ALJ also cited Plaintiff’s reports at the
April 2022 consultative psychological evaluation that he had a “couple of friends who
The Sixth Circuit has held that meaningful judicial review exists—even if the ALJ provided only a
cursory or sparse analysis—if the ALJ made sufficient factual findings elsewhere in the decision that
support her conclusion. See Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006) (looking to
findings elsewhere in the decision to affirm the ALJ’s step three analysis, and finding no need for the ALJ
to “spell out every fact a second time”); Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 365-66 (6th
Cir. 2014) (finding that the ALJ made “sufficient factual findings elsewhere in his decision to support his
conclusion at step three). This principle applies to opinion evidence analysis. E.g., Crum v. Comm'r of
Soc. Sec., 660 F. App'x 449, 457 (6th Cir. 2016) (holding that the ALJ did not err by concisely explaining
the consistency factor and finding no need for the ALJ to “reproduce the list of [the plaintiff’s] treatment
records a second time” to support the conclusion, if “she listed them elsewhere in her opinion”). The
Court will therefore consider the ALJ’s factual findings elsewhere in the decision to consider whether her
RFC limitations are supported by substantial evidence.
5

21

would call and visit infrequently,” that he was “able to go grocery shopping in public
without issue,” and that he had “previously lived with a girlfriend and now lived with his
father.” (Decision, Doc. No. 7-2 at PageID 43 (citing AR, Doc. No. 7-35 at PageID 759,
761).) But although the ALJ reasoned that the daily activities reported by Plaintiff at the
April 2022 consultative evaluation suggested abilities in the area of social functioning,
consultative psychologist Dr. Pawlarczyk concluded that Plaintiff’s reports of social
activities showed “a more limited interest level” and indicated that Plaintiff “did not seem
to be very motivated to engage in many activities outside of his home.” (AR, Doc. No. 735 at PageID 761.)
Moreover, the ALJ failed to consider Plaintiff’s reports of auditory hallucinations
in her analysis of Plaintiff’s ability to interact with others. Plaintiff testified that he
experienced social anxiety and daily auditory hallucinations: He said he could “hear
people talking and they [are] not even around.” (AR, Doc. No. 7-2 at PageID 65, 67.)
Plaintiff said that he used medical marijuana, which he said “stops the voices from being
mean” but did not lessen the frequency of the hallucinations. (Id. at PageID 72-73.)
According to Plaintiff, he would be unable to work a full-time job because of the mental
exhaustion of “the voices” and anxiety. (Id. at PageID 76.)
The medical records also document Plaintiff’s complaints of hallucinations. For
example, Plaintiff told his therapist in November 2019 that he heard voices “all day
everyday” that felt like “an implanted thought.” (AR, Doc. No. 7-35 at PageID 689.) In
December 2019, Plaintiff told his therapist that he had “deposited [twenty] million dollars
either in a bank or in a brokerage account approximately [ten to thirteen] years ago and
22

that he [could not] remember” where the money was. (AR, Doc. No. 7-10 at PageID
395.) Although Plaintiff did not exhibit any delusional thinking in January or February of
2020, Plaintiff told his therapist in April 2020 that he had difficulty distinguishing
between dreams and reality and that he was “still . . . concerned about the [twenty]
million dollars” that he felt was in his brokerage account. (Id. at PageID 401, 404, 41011.) In October 2020, Plaintiff said he continued to hear “mean and derogatory” voices
and conversations in his head. (Id. at PageID 413.) Plaintiff said that marijuana helped,
but his therapist noted that Plaintiff “appear[ed] to minimize his [symptoms].” (Id. at
PageID 414.) Plaintiff told another provider in October 2020 that he was still hearing
voices that were “sometimes . . . quiet [and] other times . . . intense.” (AR, Doc. No. 7-35
at PageID 665.) He said that he heard the voices as “mumbling in the distance,” which he
found “very annoying at times.” (Id.) Plaintiff’s provider also indicated that Plaintiff
reported visual hallucinations in the form of a flash of light in his peripheral vision. (Id. at
PageID 670.) Plaintiff again reported a history of hearing voices during the consultative
psychological evaluation in September 2021. (AR, Doc. No. 7-10 at PageID 453, 455.)
When he returned to therapy at the direction of his representative in January 2022,
Plaintiff reported “primarily negative voices.” (AR, Doc. No. 7-35 at PageID 754.)
During the April 2022 consultative psychological evaluation, Plaintiff again reported
auditory hallucinations on a daily basis. (Id. at PageID 760.)
The ALJ acknowledged that Plaintiff’s history of auditory hallucinations affected
his abilities in the “Paragraph B” area of concentrating, persisting, or maintaining pace.
(Decision, Doc. No. 7-2 at PageID 43.) But the ALJ did not account for these symptoms
23

in her analysis of Plaintiff’s social functioning, and so she did not consider how
Plaintiff’s auditory hallucinations affected his ability to interact with others. (Id.)
Defendant also points to the ALJ’s discussion of the April 2022 consultative
evaluation report to support its assertion that the mental RFC is supported by substantial
evidence. (Mem. In. Opp., Doc. No. 11 at PageID 792-93 (citing Decision, Doc. No. 7-2
at PageID 48).) Although the ALJ acknowledged most of Dr. Pawlarczyk’s examination
findings in her summary of the evaluation and in her analysis of Dr. Pawlarczyk’s
medical opinions, the ALJ downplayed Plaintiff’s reports to Dr. Pawlarczyk of hearing
voices. (Decision, Doc. No. 7-2 at PageID 47-48.) According to the ALJ, Plaintiff
“endorsed some experiences suggesting hallucinatory activity” but “denied any current
auditory hallucinations.” (Id.) However, Dr. Pawlarczyk stated in his report that Plaintiff
reported hearing voices that told him to “[c]lean this or that” on a daily basis. (AR, Doc.
No. 7-35 at PageID 760.) Plaintiff said he thought that listening to music reduced his
symptoms and that medications and use of cannabis “made it worse.” (Id.)
Dr. Pawlarczyk also indicated that he reviewed prior medical records from other
providers which confirmed Plaintiff’s reports of auditory hallucinations. (Id. at PageID
761.) For example, Dr. Pawlarczyk referenced a January 2020 record where Plaintiff
reported hearing voices. (Id.) He cited an October 2020 record that documented
Plaintiff’s reports of experiencing daily auditory hallucinations, as well as the provider’s
note that Plaintiff “verbalize[d] bizarre thought content and psychoticism” and exhibited
symptoms of both schizophrenia and depression. (Id. at PageID 761-62.) Dr. Pawlarczyk
further cited a June 2021 record in which a provider suggested that Plaintiff’s auditory
24

hallucinations may have been secondary to a prior traumatic brain injury, “though the
rationale regarding this was not clear.” (Id. at PageID 62.) Moreover, Dr. Pawlarczyk
reported that Plaintiff’s performance on the Personality Assessment Inventory indicated
that Plaintiff “may have been attempting to place himself in a more socially desirable
light while responding to this instrument,” which suggested that Plaintiff “may have
underestimated some of his problems” during the evaluation. (Id. at PageID 762-63.)
Additionally, the ALJ cited Plaintiff’s reports to Dr. Pawlarczyk—that he could go
grocery shopping without issue and that he “occasionally called one or two good friends
and they would visit him about once every six months”—to discount Dr. Pawlarczyk’s
opinion that Plaintiff would be unable to meet competitive standards in interacting with
the general public and maintaining socially appropriate behavior. (Decision, Doc. No. 7-2
at PageID 48 (citing AR, Doc. No. 7-35 at PageID 761).) But the ALJ ignored Dr.
Pawlarczyk’s conclusion that Plaintiff’s reports of daily and social activities overall
showed that Plaintiff “engaged in few activities and was withdrawn” and that he “seemed
to have a more limited interested level and did not seem to be very motivated to engage
in many activities outside of his home.” (AR, Doc. No. 7-35 at PageID 761.)
In sum, the Court concludes that the ALJ erred by failing to acknowledge or
address significant evidence that supports Plaintiff’s mental health complaints and the
consultants’ findings regarding Plaintiff’s difficulties interacting with others. As
discussed above, the Court recognizes that the ALJ need not discuss each and every piece
of evidence and finding in the record. See Smith-Johnson, 579 F. App’x at 437 n.11 (6th
Cir. 2014). Nevertheless, the ALJ’s “factual findings as a whole” must show that she
25

“implicitly resolved the conflicts in the evidence.” Id. Here, the ALJ’s failure to
acknowledge the ongoing difficulties that Plaintiff experienced from the hallucinatory
activity related to his schizoaffective disorder, as well as the effects of Plaintiff’s
schizoaffective disorder on his ability to understand the need for consistent treatment,
shows that the ALJ did not resolve the conflicts in the evidence. In addition, the ALJ’s
apparent failure to consider significant evidence that contradicts her conclusions signifies
an impermissibly selective review of the record. See Gentry, 741 F.3d at 723-23 (citing
Minor v. Comm'r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013) (reversing where
the ALJ “cherry-picked select portions of the record” rather than doing a proper
analysis)); Germany–Johnson v. Comm'r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir.
2008) (finding error where the ALJ was “selective in parsing the various medical
reports”). For these reasons, the ALJ’s RFC is unsupported by substantial evidence.
Finally, Defendant cites to a case from this district to support the assertion that
“the ALJ properly defined ‘superficial’ because there is no regulatory definition of the
term.” (Mem. In. Opp., Doc. No. 11 at PageID 791 (citing Melinda R. v. Comm’r of Soc.
Sec., No. 2:23-cv-1090, 2024 WL 193655, at *9 (S.D. Ohio Jan. 18, 2024) (Bowman,
M.J.), report and recommendation adopted in part, No. 2:23-cv-1090, 2024 WL 1268249
(S.D. Ohio Mar. 26, 2024) (Morrison, D.J.)).) As an initial matter, Defendant cites to
several portions of the Melinda R. Report and Recommendation that were not adopted by
District Judge Morrison. 6 (Compare Mem. In. Opp., Doc. No. 11 at PageID 788, 791,

Judge Morrison adopted only Section II.C.2 of the Report and Recommendation. Melinda R., 2024 WL 1268249,
at *2.

6

26

793, 795-96, with Melinda R., 2024 WL 1268249, at *1-2.) Nevertheless, Defendant’s
argument is not well-taken. In the section of the Melinda R. Report and Recommendation
that Judge Morrison adopted, the court found that “[a]n ALJ may choose any terms she
wishes in lieu of ‘verbatim’ phrasing, so long as the RFC as determined is substantially
supported by the record as a whole.” 2024 WL 193655, at *9 (citing Poe v. Comm’r of
Soc. Sec., 342 Fed. Appx. 149, 157, 2009 WL 2514058, at *7 (6th Cir. 2009)). But in this
case, the ALJ’s definition of “superficial” renders the limitation meaningless, and it is not
substantially supported by the record as a whole, for the reasons discussed above.
Because the ALJ’s RFC is not supported by substantial evidence, the undersigned
recommends reversal.
C.

The ALJ’s Error Was Not Harmless.

Defendant asserts that any error made by the ALJ was harmless because “Plaintiff
does not argue, let alone demonstrate, that any of the jobs the ALJ found him capable of
performing required more than superficial interaction.” (Mem. In. Opp., Doc. No. 11 at
PageID 795.) According to Defendant, the jobs that the ALJ cited at Step Five do not
require more than superficial interaction, and so any such additional limitation in the RFC
would not have changed the ultimate outcome of the decision. (Id.) Defendant cites to the
“People” ratings of 8 in the DOT listings for the jobs that the VE cited, and to the
Melinda R. case, to show that these jobs do not require greater than superficial
interaction. (Id.)
Defendant’s assertion is not well-taken. Defendant again cites a portion of the
Melinda R. Report and Recommendation that District Judge Morrison did not adopt.
27

Melinda R., 2024 WL 1268249, at *2. Nevertheless, the Sixth Circuit Court of Appeals
has not addressed whether the failure to incorporate a limitation for superficial social
interaction constitutes harmless error, and there is no consensus among the judges in this
district regarding the issue. Compare Francis v. Comm'r of Soc. Sec., No. 2:17-CV-1022,
2018 WL 4442596, at *6 (S.D. Ohio Sept. 18, 2018) (Vascura, M.J.) (the ALJ’s failure to
limit Plaintiff to superficial interactions with supervisors—as she did with coworkers—is
harmless error, as five of the six Step 5 jobs require only limited relationships with
people), report and recommendation adopted, No. 2:17-CV-1022, 2018 WL 4932081
(S.D. Ohio Oct. 11, 2018) (Smith, D.J.), with Crisp v. Comm'r of Soc. Sec., No. 2:19-CV2401, 2020 WL 5640056, at *2 (S.D. Ohio Sept. 22, 2020) (Watson, D.J.) (the ALJ’s
failure to address opinions regarding superficial interaction with the general public was
not harmless error, when the VE’s testimony addressed only superficial interaction with
coworkers).
The Court notes that the term “superficial” is defined by neither the DOT nor in
Social Security regulations, SSRs, or HALLEX. Therefore, the undersigned concludes
that it cannot rely on the DOT’s “People” scale to conclude that the jobs cited by the ALJ
at Step 5 require no more than superficial social interaction, much less that the jobs
account for any difficulty with supervisory interactions that the ALJ failed to address in
the RFC. Defendant’s argument also fails to account for the ALJ’s failure to address
Plaintiff’s difficulty with supervisory interactions, which the ALJ ignored in the RFC.
Moreover, Defendant’s argument “invit[es] this court to perform a duty which is reserved
to the ALJ. It is the ALJ, not the court, who must determine what jobs can be performed
28

by plaintiff in light of her limitations.” Runyon v. Comm'r of Soc. Sec., No. 2:20-CV3820, 2021 WL 3087639, at *6 (S.D. Ohio July 22, 2021) (Vascura, M.J.), report and
recommendation adopted, No. 2:20-CV-3820, 2021 WL 3489615 (S.D. Ohio Aug. 9,
2021) (Watson, D.J.) (citation omitted). Thus, reversal is warranted.
VI.

REMAND
Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under Sentence Four may result in the need for further proceedings or an immediate
award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041
(6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming
or where the evidence of disability is strong while contrary evidence is lacking. Faucher
v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is neither overwhelming nor strong while contrary evidence is
lacking. Faucher, 17 F.3d at 176. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to Sentence Four of Section
405(g) for the reasons stated above. On remand, the ALJ should further develop the
record as necessary, particularly as to Plaintiff’s mental functioning and the medical
opinion evidence, and evaluate the evidence of record under the applicable legal criteria
mandated by the Commissioner’s regulations and rulings and governing case law. The
ALJ should evaluate Plaintiff’s disability claim under the required five-step sequential
29

analysis to determine anew whether Plaintiff was under a disability and whether his
application for Disability Insurance Benefits should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Statement of Errors (Doc. No. 9) be GRANTED;

2.

The Court REVERSE the Commissioner’s non-disability determination;

3.

No finding be made as to whether Plaintiff was under a “disability” within
the meaning of the Social Security Act;

4.

This matter be REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Order; and

5.

This case be terminated on the Court’s docket.
s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days if this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F). Such objections shall
specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendations is
based in whole or in part upon matters occurring of record at an oral hearing, the
30

objecting party shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

31