Harrison v. Commissioner of Social Security Administration

Filing 15

REPORT AND RECOMMENDATIONS that the Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff was under a "disability"; this case be remanded to the Commissioner and the Administrative Law Judge for f urther consideration consistent with this Report and a Decision and Entry adopting this Report; and the case be terminated on the docket of this Court. Objections to R&R due by 6/29/2015. Signed by Chief Magistrate Judge Sharon L. Ovington on 6/10/15. (mcm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TETRA K. HARRISON,
Plaintiff,

:
:
Case No. 3:14cv00218

vs.

:

CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Tetra K. Harrison brings this case challenging the Social Security

Administration’s denial of her application for Supplemental Security Income. She asserts
here, as she did before the Social Security Administration, that she has been under a
benefits-qualifying disability – starting on November 3, 1994 – due to debilitating health
problems. Social Security Administrative Law Judge (ALJ) Elizabeth A. Motta denied
Plaintiff’s application on the main ground that she was not under a “disability” within the
meaning of the Social Security Act.
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

#8), the Commissioner’s Memorandum in Opposition (Doc. #13), Plaintiff’s Reply (Doc.
#14), the administrative record (Doc. #7), and the record as a whole. Plaintiff advances
two main contentions: (1) ALJ Motta’s decision should be reversed because it violated the
treating source rule; and (2) ALJ Motta’s decision should be reversed because the ALJ
erred by not finding fibromyalgia to be a medically-determinable impairment. (Doc. #8,
PageID#s 1378, 1382) (capitalization omitted).
II.

Background
A.

Plaintiff and her Testimony

Plaintiff was 35 years old on the date (March 22, 2012) she filed her application for
benefits. This placed her in the Social Security Administration’s “younger” person
category. She has at least a high-school education, and she does not have any pastrelevant-work experience. (Doc. #7, PageID# 75).
During an administrative hearing held by ALJ Motta, Plaintiff explained that she
has never really worked due to constant pain and her inability to sit or stand for long
periods of time. She noted that arthritis causes pain in her kneecaps, lower back, and
elbow. Her pain is also due to fibromyalgia. Plaintiff testified that the fibromyalgia is
being treated with medication and she is “being sent to [pain] management ... as well.”
(Doc. #7, PageID# 93). On a typical day when her pain medications are helping, she
experiences pain at about level 6, using a 0 to 10 scale (0 = no pain; 10 = worst pain
imaginable). She testified that her pain “feels like it’s inside of my bones but it’s in my

2

legs, in my arms, in my back.” Id. at 101. The pain throbs and burns, and she experiences
daily muscle spasms in her back and the bottom of her feet.
Plaintiff can walk about 1 block before she needs to rest for 5 or 10 minutes. With
these rest breaks, she can walk a total of about 4 blocks in 1 day. If she sits too long, her
back starts hurting, and her “tailbone starts hurting really bad.” Id. at 103. She can sit for
about 1 hour before pain causes her to move. Then she needs to stand, but she can stand
for only 10 minutes before then needing to sit or lie down. Lying down provides her the
most pain relief. She lies on her side. Yet, this too will hurt, causing her pain in the bones
of her hip. She can lift a gallon of milk but nothing heavier.
As to her daily activities, she cooks meals and does dishes. She does not do any
housecleaning and cannot lift laundry baskets. She runs out of breath by going up and
down stairs. She grocery shops about once a week – her children carry the groceries.
Plaintiff does not attend her children’s school or after-school activities. She does not go to
school meetings. She explained, “[T]hey go to school and I take them to school. But we
... don’t do much of anything because the most comfortable position for me is l[ying] down
so I l[ie] a lot.” (Doc. #7, PageID# 95). Plaintiff does not go out with friends. She notes,
“I don’t trust people.” Id. She has a boyfriend but does not trust his friends.
B.

Medical Evidence

Plaintiff became a patient at Rocking Horse Community Health Center no later than
August 6, 2010. See Doc. #7, PageID# 421. Her records from Rocking Horse contained

3

notes from her office visits plus information about tests and imaging done at other
facilities. Id. at 397-439.
In April 2012, one of the staff physicians at Rocking Horse, Dr. Elarossi, completed
a Physician Certification of Medication Dependency for the Ohio Department of Job and
Family Services. Dr. Elarossi identified Plaintiff’s chronic medical conditions as (1)
asthma, (2) bipolar disorder, (3) pituitary disorder, (4) dysuria, and (5) fibromyalgia. Id. at
488. He listed Plaintiff’s medications as (1) albuterol sulfate, (2) nexium, (3) cymbalta,
(4) pulmicort inhaler, and (5) imitrex. Id. Dr. Elarossi also completed a Basic Medical
form. He indicated that the date of his last examination of Plaintiff was April 5, 2012. Id.
at 490. He opined that Plaintiff could lift between 6 and 10 pounds on either an occasional
or frequent basis; she could stand and walk 1 hour total and 1 hour without interruption
during an 8-hour workday; and she could sit 2 hours total and 2 hours without interruption
during the same 8-hour workday. Id. at 490. Dr. Elarossi checked a box on this form
indicating that Plaintiff’s “physical and/or mental functional limitations ... [are] expected
to last between 9 and 11 months.” Id. He further noted, “– see a neurologist for further
eval.” Id.
On May 29, 2012, Plaintiff saw rheumatologist Dr. Hackshaw upon referral by Dr.
Elarossi. Dr. Hackshaw noted that Plaintiff, then age 35, had first experienced
fibromyalgia symptoms at age 19. Id. at 508. On physical examination, painful tender
points were elicited in greater than 11 of 18 sites. Id. at 509. Dr. Hackshaw diagnosed

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Plaintiff with fibromyalgia, and he prescribed imitrex and gabapentin. Id. Dr. Hackshaw
also noted that with a neuropathic state such as fibromyalgia, the basis of treatment is
neuropathic medications and that narcotics “have no role in the treatment of neuropathic
pain;” rather, the goal is to establish “some level of control to where pain is reduced by
[about] 50% from baseline,” and the patient can then adjust her neuropathic medications
depending upon current needs, such as worsening pain with barometric changes. Id. at
510.
The administrative record contains additional medical records and medical source
opinions. A detailed description of those records and opinions is unnecessary because the
undersigned has reviewed the entire administrative record and because the ALJ’s decisions
accurately identified the relevant records with citations to evidence.
III.

The “Disability” Requirement and Judicial Review
The Social Security Administration provides Supplemental Security Income to

indigent individuals subject to several eligibility requirements. Chief among these requires
an applicant to be a “disabled individual.” 42 U.S.C. § 1381a; see Bowen v. City of New
York, 476 U.S. 467, 470 (1986). The phrase “disabled individual” – as defined by the
Social Security Act – has specialized meaning of limited scope. It encompasses “any
medically determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job – i.e., “substantial gainful activity,” in Social Security

5

lexicon.2 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“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 Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708,
722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard is met –
that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to support a
conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a scintilla of
evidence but less than a preponderance . . . ” Rogers, 486 F.3d at 241; see Gentry, 741
F.3d at 722.
The second 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

2

In addition, the impairment must be one “which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A).

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647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[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.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
546-47 (6th Cir. 2004)).
IV.

Two ALJ Decisions
To determine if an applicant for Supplemental Security Income is under a benefits-

qualifying disability, the Social Security Administration employs a 5-step sequential
evaluation. See 20 C.F.R. §416.920(a)(4); see also Colvin v. Barnhart, 475 F.3d 727, 730
(6th Cir. 2007).
In 2007, Plaintiff filed a previous application for Supplemental Security Income.
On November 18, 2010, ALJ Thomas R. McNichols II denied Plaintiff’s previous
application. About 16 months later, in March 2012, Plaintiff filed an additional
application. Additional medical evidence was submitted, including Plaintiff’s records
from Rocking Horse Community Health Center. After an administrative hearing, ALJ
Motta issued the non-disability decision that Plaintiff challenges in the present case. (Doc.
#7, PageID#s 66-76).
For present purposes, ALJ Motta’s central findings begin at step 2 of the sequential
evaluation. She concluded at step 2 that Plaintiff has the following severe impairments:

7

“asthma, dysthymia, anxiety, and polysubstance abuse ... in possible remission.” Id. at 68.
ALJ Motta found that Plainiff’s severe impairments did not include fibromyalgia. She
observed that fibromyalgia “is mentioned throughout the record, but the required clinical
findings are not documented in the medical record. (Doc. #7, PageID# 70). She
explained:
The only detailed evaluation was with a rheumatologist [Dr. Hackshaw] in
May 2012. There were painful tender points (11 of 18) but the examiner said
that while she might possibly have fibromyalgia, there were some underlying
psychological issues, and he made clear to her that she would not be getting
narcotics. Fibromyalgia was considered as not severe in the prior ALJ
decision. The BDD considered it as well – Exhibit B5A at 2 [PageID# 86]–
and again on informal remand (Exhibits 11F and 12F) and still adopted the
prior ALJ findings.
(Doc. #7, PageID# 70).
At step 3, the ALJ found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals the severity of an impairment in the
Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step 4, ALJ Motta assessed Plaintiff’s residual functional capacity, or the most
she can do in a work setting despite her limitations. 20 C.F.R. §404.1545(a); see Howard
v. Commissioner of Social Sec., 276 F.3d 235, 239 (6th Cir. 2002). ALJ Motta concluded:
[Plaintiff] has the residual functional capacity to perform a reduced
range of medium work ... with the following limitations: no climbing
ladders, ropes, or scaffolds; work that would not involve exposure to hazard;
she should not be expected to perform jobs that would require exposure to
irritants; she is further restricted to simple 1- or 2-step tasks requiring little,
if any concentration; low stress work that would not involve production
quotas or over-the-shoulder supervision; jobs that would require only limited
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contact with supervisors and co-workers; and she should not be expected to
perform jobs that would require teamwork.
(Doc. #7, PageID# 71).
At step 5 of the sequential evaluation, ALJ Motta found that given Plaintiff’s age,
education, work experience, and residual functional capacity, a significant number of jobs
exist in the national economy that she could perform. This led to ALJ Motta’s ultimate
conclusion that Plaintiff was not under a benefits-qualifying disability.
V.

Discussion
Plaintiff contends that ALJ Motta’s analysis of Dr. Elarossi’s opinion was deficient

and produced reversible error. She reasons, “The ALJ made no attempt to rebut the
presumption that Dr. Elarossi’s opinion was still entitled to deference even if it was not
entitled to controlling weight.” (Doc. #7, PageID# 1379). She further maintains that the
ALJ made no connection between Dr. Elarossi’s opinion and the substantial cache of
records provided by Rocking Horse Community Health Center.
Social security regulations recognize several different types of medical sources:
treating physicians and psychologists, nontreating yet examining physicians and
psychologists, and nontreating/record-reviewing physicians and psychologists. Gayheart
v. Comm’r Social Sec., 710 F.3d 365, 375 (6th Cir. 2013).
As a general matter, an opinion from a medical source who has
examined a claimant is given more weight than that from a source who has
not performed an examination (a “nonexamining source”), and an opinion
from a medical source who regularly treats the claimant (a “treating source”)
is afforded more weight than that from a source who has examined the
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claimant but does not have an ongoing treatment relationship (a “nontreating
source”). In other words, “[t]he regulations provide progressively more
rigorous tests for weighing opinions as the ties between the source of the
opinion and the individual become weaker.” Soc. Sec. Rul. No. 96–6p, 1996
WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996).
Gayheart, 710 F.3d at 375 (citations omitted).3 To effect this hierarchy, the Regulations
adopt the treating physician rule. See Gayheart, 710 F.3d at 375; see also Rogers, 486
F.3d at 242; cf. Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008) (“in fact the technical
name for the ‘treating physician’ rule is the ‘treating source’ rule”). The rule is
straightforward:
Treating-source opinions must be given “controlling weight” if two
conditions are met: (1) the opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
“is not inconsistent with other substantial evidence in [a claimant’s] case
record.”
Gayheart, 710 F.3d at 376 (citation omitted); see Gentry, 741 F.3d at 723. If both
conditions do not exist, the ALJ’s review must continue:
When the treating physician’s opinion is not controlling, the ALJ, in
determining how much weight is appropriate, must consider a host of
factors, including the length, frequency, nature, and extent of the treatment
relationship; the supportability and consistency of the physician’s
conclusions; the specialization of the physician; and any other relevant
factors.
Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The regulations also require ALJs to provide “good reasons” for the weight placed
3

The Social Security Administration has re-lettered 20 C.F.R. §416.927 without altering the
treating physician rule or other legal standards The re-lettered version applies to decisions, like ALJ
Motta’s, that issued on or after April 1, 2012.

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upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory “good
reasons” requirement is satisfied when the ALJ provides “specific reasons for the weight
placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. Rul. 96-2p, 1996
WL 374188 at *5 (1996)). The goal is to make clear to any subsequent reviewer the
weight given and the reasons for that weight. Id. Substantial evidence must support the
reasons provided by the ALJ. Id.
In the present case, ALJ Motta explained with regard to Dr. Elarossi’s opinions:
A physician from Rocking Horse Medical Center completed a Basic
Medical form for the county welfare department, on which he reported that
the claimant would be unemployable for only between nine and eleven
months. However, this fails to meet the durational requirements of the Act.
Further, there is nothing in terms of objective physical findings or treatment
history that would even remotely support a limitation to sitting, standing, and
walking to a combined total of three hours a day. No significant weight is
given in this assessment.
(Doc. #7, PageID# at 73). The ALJ was specific enough about the weight she placed on
Dr. Elarossi’s opinions – no significant weight. But the ALJ misperceived the nature of
fibromyalgia by pointing to the lack of objective physical findings supporting Dr.
Elarossi’s opinions. “[U]nlike medical conditions that can be confirmed by objective
medical testing, fibromyalgia patients present no objectively alarming signs.” Rogers, 486
F.3d at 243. “The process of diagnosing fibromyalgia includes (1) the testing of a series of
focal points for tenderness and (2) the ruling out of other possible conditions through
objective medical and clinical data.” Id. at 244. Given this, the ALJ’s emphasis on the
lack of objective evidence does not identify a valid reason for discounting Dr. Elarossi’s
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opinions about Plaintiff’s work limitations. This shortcoming was not harmless error
because a specialist, Dr. Hackshaw, examined Plaintiff and found tender points in more
than 11 of 18 sites. (Doc. #7, PageID# at 509). These are “medically-accepted and
recognized signs of fibromyalgia.” Rogers, 486 F.3d at 244. And, consequently, such
findings supported Dr. Elarossi’s opinions about the work limitations fibromyalgia caused
Plaintiff.
At step 2 of ALJ Motta’s sequential evaluation, she addressed Dr. Hackshaw’s
report concerning his examination of Plaintiff. But, in doing so, the ALJ cast the report in
a light that implied Plaintiff was exaggerating or faking her symptoms to obtain narcotic
medications. Substantial evidence does not support the ALJ’s reading of Dr. Hackshaw’s
report. The ALJ recognized that Dr. Hackshaw “made it clear to her [Plaintiff] that she
would not be getting narcotics.” (Doc. #7, PageID# 70). But, Dr. Hackshaw’s notes do
not suggest that Plaintiff was engaged in drug-seeking behavior or was otherwise being
dishonest about her pain levels. His report instead documents, “Neuropathic medications
form the basis of treatment for these conditions [fibromyalgia]. Narcotics have no role in
the treatment of neuropathic pain. I explained to her that neuropathic syndromes are
generally long term syndromes that don’t go away. We try to obtain some level of control
to where pain is reduced by [approximately] 50% from baseline and further, try to
establish a regimen where she can adjust/manipulate her neuropathic medications as she
sees the need depending on current needs (which often worsen with barometric changes,

12

etc.).” Id. at 510. This explanation merely documents Dr. Hackshaw’s explanation to
Plaintiff of his prognosis and suggested course of treatment for her fibromyalgia. It is a
far cry from evidence suggesting that Plaintiff sought narcotic medications for an
illegitimate reason.
The ALJ also stated that Dr. Hackshaw indicated, “while she might possibly have
fibromyalgia, there were some underlying psychological issues ....” Id. at 70. Yet, Dr.
Hackshaw did not hedge his diagnosis of fibromyalgia. He plainly diagnosed fibromyalgia
and set out a treatment plan including medications, further testing, and patient education
about fibromyalgia. Id. at 69-70. Dr. Hackshaw’s concomitant observation that Plaintiff
had underlying psychological issues, without more, does not cast doubt on the validity of
his diagnosis, medical opinions, and treatment plan for Plaintiff’s fibromyalgia. And it
does not suggest that Plaintiff was exaggerating or faking her pain levels. Instead, it
indicates that Plaintiff has additional health problems without negating or diminishing the
seriousness of her fibromyalgia.
Plaintiff further maintains that ALJ Motta erred by not finding that new and
material evidence existed after ALJ McNichols’ earlier decision established fibromyalgia
as a severe impairment at step 2. The Commissioner contends that it was legally irrelevant
for ALJ Motta to exclude fibromyalgia at step 2 because she continued to the remaining
steps of her sequential evaluation.
The Commissioner is partly correct. Generally, an ALJ does not commit an error

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requiring reversal by finding a non-severe impairment when (1) the ALJ also found that
claimant has at least one severe impairment, and (2) the ALJ considers both the severe and
non-severe impairments during the remaining steps in the sequential evaluation. See
Maziarz v. Secretary of Health and Human Services, 837 F.2d 240, 244 (6th Cir. 1987).
Indeed, “once the ALJ determines that a claimant has at least one severe impairment, the
ALJ must consider all impairments, severe and non-severe, in the remaining steps.”
Pompa v. Comm'r of Soc. Sec., 73 F. App'x 801, 803 (6th Cir. 2003) (citation omitted).
“[W]hen an ALJ considers all of a claimant’s impairments in the remaining steps of the
disability determination, an ALJ’s failure to find additional severe impairments at step two
‘[does] not constitute reversible error.’” Fisk v. Astrue, 253 F. App'x 580, 583 (6th Cir.
2007) (quoting Maziarz, 837 F.2d at 244).
In the present case, ALJ Motta’s decision at step 4 does not indicate that she
considered Plaintiff’s severe and non-severe impairments when assessing her residual
functional capacity. The ALJ did not refer to or consider Plaintiff’s fibromyalgia at step 4
and, consequently, even if fibromyalgia was correctly characterized as a non-severe
impairment, it was error for the ALJ to overlook or ignore it at step 4 when assessing
Plaintiff’s residual functional capacity. Cf. Fisk, 253 F. App'x at 583 (quoting, in part,
Maziarz, 837 F.2d at 244) (“when an ALJ considers all of a claimant’s impairments in the
remaining steps of the disability determination, an ALJ’s failure to find additional severe
impairments at step two ‘[does] not constitute reversible error.’”). This problem is further

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implicated in the ALJ’s conclusion at step 4 that the new evidence (provided after ALJ
McNichols’ previous decision) “fails to document a significant change in the claimant’s
condition.” (Doc. #7, PageID# 72). Because the ALJ did not connect this conclusion to
any mention of Plaintiff’s fibromyalgia at step 4, the ALJ did not reasonably find that the
record failed to document a significant change in her condition.
Lastly, the ALJ relied on record reviewing medical sources without weighing their
opinions under any of the factors required by the regulations. This constituted error. The
regulations require ALJs to weigh their opinions “based on the examining relationship, (or
lack thereof), specialization, consistency, and supportability, but only if a treating-source
opinion is not deemed controlling.” Gayheart, 710 F.3d at 376 (citation). The ALJ’s
failure to evaluate the record-reviewers’ opinion as the regulations require allowed the
ALJ to overlook that these sources provided conclusory reviews of the record and no
meaningful explanation to support their decision to accept ALJ McNichols’ previous
assessment of Plaintiff’s residual functional capacity. See, e.g., Doc. #7, PageID#s 103,
105.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.
VI.

Remand is Warranted
A remand is appropriate when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial

15

right. Bowen, 478 F3d at 746. Remand is warranted for an ALJ's failure to follow the
regulations, for example, when the ALJ failed to provide “good reasons” for rejecting a
treating medical source’s opinions, see Wilson, 378 F.3d at 545–47; failed to consider
certain evidence, such as a treating source’s opinions, see Bowen, 478 F3d at 747–50;
failed to consider the combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d
at 725–26; or failed to provide specific reasons supported by substantial evidence for
finding the plaintiff to lack credibility, Rogers, 486 F.3d at 249. Under sentence 4 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 4 may result in the need for
further proceedings or an immediate award of benefits. E.g., Blakley, 581 F.3d at 410;
Felisky, 35 F.3d at 1041. The latter is warranted where the evidence of disability is
overwhelming or where the evidence of disability is strong while contrary evidence is
weak. Faucher v. Sec'y of Health & Humans Servs., 17 F.3d 171, 176 (6th Cir. 1994). A
remand for an award of benefits is unwarranted in the present case because the evidence of
disability is not overwhelming and because the evidence of a disability is not strong while
contrary evidence is weak. See id., 17 F.3d at 176. Yet, Plaintiff is entitled to an Order
remanding this matter to the Social Security Administration pursuant to sentence 4 of §
405(g) due to problems set forth above. On remand the ALJ should be directed to review
Plaintiff’s disability claim to determine anew whether she was under a benefits-qualifying

16

disability, including, at a minimum, a re-assessment Plaintiff’s residual functional
capacity, and a re-consideration of the evidence at step 5 of the sequential evaluation.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

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

3.

This case be remanded to the Commissioner and the Administrative Law
Judge under Sentence Four of 42 U.S.C. § 405(g) for further consideration
consistent with this Report and a Decision and Entry adopting this Report;
and

4.

The case be terminated on the docket of this Court.

June 10, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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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 because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), 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 Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the 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).

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