Lawson v. Commisioner of Social Security
REPORT AND RECOMMENDATIONS: (1) The Commissioner's non-disability finding be vacated; (2) Plaintiff Michael Lawson's application for Supplemental Security Income protectively filed on July 28, 2011 be REMANDED to the Social Security Administration for payment of benefits consistent with the Social Security Act; and (3) The case be terminated on the docket of this Court. Objections to R&R due by 11/9/2015. Signed by Chief Magistrate Judge Sharon L. Ovington on 10/21/15. (mcm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:14cv00229
CAROLYN W. COLVIN,
Acting Commissioner of the Social
District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
Plaintiff Michael Lawson brings this case challenging the Social Security
Administration’s denial of his application for Supplemental Security Income. He asserts
here, as he did before the Administration, that severe pain and numbness from diabetic
neuropathy, together with his other health problems, preclude him from working. Plaintiff
contends that Administrative Law Judge (ALJ) Christopher L. Dillon failed to evaluate his
treating physician Dr. Chang’s opinions as required by law and that substantial evidence
does not support ALJ Dillon’s determinative findings. The Commissioner contends the
substantial evidence supports ALJ Dillon’s decision, which likewise applied the correct
Attached hereto is a NOTICE to the parties regarding objections to this Report and
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
#9), the Commissioner’s Memorandum in Opposition (Doc. #11), the administrative
record and supplemental administrative record (Doc. #s 8, 12), and the record as a whole.
Plaintiff and His Testimony
Plaintiff asserts that beginning on January 1, 2004, he has been under a “disability.”
Plaintiff protectively filed his application for Supplemental Security Benefits on July 28,
2011. He was 50 years old on that date and was therefore considered a person “closely
approaching advanced age” under Social Security Regulations. He has a 7th-grade, or
limited, education. He worked in years gone by as an automobile mechanic.
Plaintiff’s significant health problems include Type II Diabetes with resulting
neuropathy, pain, and numbness in his extremities. During a hearing held by ALJ Dillon,
the following colloquy occurred.
Okay. It looks like your biggest problem is the neuropathy.
A [Plaintiff] The neuropathy, and I’ve got a bad leg also. I’ve got a plate in my
leg, and I’ve got screws sticking literally out of my skin that need – I
just, my legs are in real bad shape from the neuropathy in my feet, and
You do have neuropathy in all four extremities?
Yes, I do sir....
(Doc. #8, PageID 77-78). Neuropathy limits Plaintiff’s ability to stand. He “can’t stand
long enough to do anything ....” Id. at 78. He feels a stinging pain in his feet, like bees are
stinging him all the time. He has numbness from the middle of his thighs down to his feet.
With every step he takes, he feels numbness through his legs. Id. These problems had
become a lot worse during the few months or years before the ALJ’s hearing in February
2013. Plaintiff explained:
It’s gotten a lot worse. I could – my doctor put me on a cane. He
gave me a prescription for a cane about two-and-a-half, three months ago.
And I was having a hard time before then, but ... it’s just real bad. I mean,
even there for a while I could get up and walk across my living room and go
to the bathroom without having to use my cane....
Id. Before he started using the cane, he had a hard time and was unable to walk anyplace
far. He explained that he did not get a cane before this because he was not active and
because he did not know how to get a cane. Id. at 79.
The ALJ doubted Plaintiff’s actual need to use a cane based on a brief note in
Plaintiff’s medical records stating, “Patient told by his lawyer to get a cane.” Id. at 355.
The ALJ asked Plaintiff:
So if you needed a cane for quite a while is the only difference in
November 2012 is that your attorney told you to go to get a cane?
A [Plaintiff] No, my attorney didn’t tell me to, I asked my doctor if I could get a
cane, if he thought it would help me. No, I hadn’t talked to an
attorney until just a couple of days ago.
Id. at 79.
Plaintiff testified that in addition to his foot problems, neuropathy caused the
following additional problems:
Well, for one thing..., the walking, the standing. Sleeping..., I’d be
laying in bed ...[at] night and the neuropathy pain hit me so bad – I may sleep
three hours a night at the most, when I sleep at all. It’s the, the sharpest
pains, it literally feels like somebody had run spikes through my feet, and my
legs, and my hands. I just, I literally have to lay and put pressure on my
hands to keep them from hurting. And it just hurts me so bad I just – just
everything about it hurts.
(Doc. #8, PageID# 80). He also loses sleep when he frequently needs to use the restroom
during the night due to diabetes. He sleeps about 3 hours per night.
Plaintiff lives with his fiancé who helps him with certain activities. She checks the
water temperature of his bath to make sure it is not too hot for his feet. He does not have
enough sensitivity in his feet to do this himself. His fiancé also helps him care for his feet.
He describes her as an “angel.” She does everything he asks her to do.
Plaintiff leaves the house every day and drives his fiancé to and from work. He
stops to get gas when needed, and he will sometimes visit a drive-thru store to get a pop.
He stated, “[T]hat is the extent of my day. I mean, I’m a tough guy. I used to love to do
yard work and things like that. I just can’t do them anymore.” Id. at 82. He spends his
day mainly watching television. He testified, “That’s so sad, but I do.” Id. He cannot
stand long enough to do laundry.
His pain is constant. During the day, he will sit or lie down, then stand up “to get
[his] blood flowing a little bit ...,” but he must sit right back down or lie down on the
couch and watch television. Id. at 85-86. When the ALJ asked Plaintiff if he elevates his
legs, he answered:
I’ll put my legs up under the table until the backs of my heels
and stuff start hurting so bad, and then I’ll put my feet down
onto the floor, and – it’s so hard to explain, but sometimes
when I go to lift my legs up, if I’ve got my legs crossed,
they’re just so dead and hurt so bad that I don’t know which
leg is on top to move first ....
(Doc. #8, PageID# 86).
Dr. Chang’s Opinions
In late January 2013, Plaintiff’s treating physician Dr. Chang completed a form
titled, “Diabetes Mellitus Medical Source Statement.” Id. at 392-99. He noted Plaintiff’s
diagnoses as “DM [diabetes mellitus] – uncontrolled with neuropathy, Bipolar Disorder.”
He characterized Plaintiff’s prognosis as “poor, as long as patient continues to be unable to
support financially his medications & doctor’s appointments.” Id. at 392. His financial
difficulties also prevented him from obtaining insulin and neuropathic analgesia, his
prescribed treatments. Plaintiff’s symptoms included difficulty walking, extremity pain
and numbness, and hyper/hypoglycemic attacks.
Dr. Chang opined that Plaintiff can stand 5 to 10 minutes at a time, stand/walk 2 to
4 hours total, and sit 30 minutes at a time for a total of 4 hours during an 8 hour workday.
Id. at 394-95. He must walk around every 30 minutes for 5 to 10 minutes at a time, and he
needs the opportunity to shift positions at will from sitting or standing/walking. He will
need unscheduled rest breaks approximately every 30 minutes during an 8 hour work shift.
Id. at 395. Dr. Chang identified diabetes with “neuropathy severe” as the medical findings
that supported the above limitations. As for Plaintiff’s postural limitations, Dr. Chang
opined that Plaintiff can occasionally stoop, crouch, and climb stairs but can never climb
ladders. He can use his hands and fingers for grasping/turning/twisting and fine
manipulation 20 percent of the time, his arms for reaching in front of his body 15% of the
time, and for reaching overhead 10% of the time. The medical findings supporting these
postural limitation were, again, “diabetic neuropathy, severe.” (Doc. #8, PageID at 395.
Dr. Chang further explained that diabetic lab testing and very poorly controlled A1C. Id.
at 396. Dr. Chain explained that Plaintiff’s “main problem is poor pain control & severe
neuropathy/neuropathic pain from uncontrolled diabetes.” Id. According to Dr. Chang’s
estimate, Plaintiff would miss about 3 to 5 days of work per month due to his impairments
or treatment. Id. at 399.
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.
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
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 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
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. §
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
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)).
ALJ Dillon’s Decision
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). Boiled down to its core, the evaluation asks:
Has the applicant been paid to work recently? If not,
Does the applicant have at least one severe impairment? If so,
Do the applicant’s health problems automatically qualify him or her for
disability benefits under the Commissioner’s Listing of Impairments? If not,
What is his/her residual functional capacity – i.e., the most the applicant can
do on the job despite his/her impairments? And, given these abilities, can
the applicant perform his/her past relevant work? If not,
Are there a significant number of jobs available that the applicant can do?
See 20 C.F.R. §416.920(a)(4); see also Bowen, 476 U.S. at 470-71; Gayheart v. Comm’r of
Soc. Sec., 710 F3d at 374-75.
ALJ Dillon began his sequential evaluation by answering Step 1 – no recent paid
work; Step 2 – yes, including diabetes mellitus with neuropathy; and Step 3 – no listinglevel impairment.
ALJ Dillon then turned to Step 4 and assessed Plaintiff’s residual functional
capacity, or the most he can do in a work setting despite his limitations. ALJ Dillon
The claimant retains the residual functional capacity for work that involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds; pushing or pulling similar amounts;
standing, walking, and sitting for 6 hours each; no foot pedal operation; no
more than frequent handling and fingering; no more than occasional
exposure to environmental extremes, such as dust, gas, fumes, heat, cold,
humidity; no more than occasional interaction with supervisors, coworkers,
and the public; and no more than simple, routine, repetitive tasks.
(Doc. #12, PageID# 594). With this in mind, the ALJ found that Plaintiff could not
perform his past relevant work as an automobile mechanic.
At step 5 of the sequential evaluation, ALJ Dillon found that given Plaintiff’s age,
education, work experience, and residual functional capacity, a significant number of jobs
exist in the national economy that he could perform. This led to ALJ Dillon’s ultimate
conclusion that Plaintiff was not under a benefits-qualifying disability.
Plaintiff contends that the substantial evidence does not support the ALJ’s
evaluation of treating physician Dr. Chang’s opinions and the ALJ’s evaluation was
inconsistent with the primary significance the Social Security Administration places on the
opinions of treating physician, particularly in its regulations. The Commissioner
maintains that the ALJ properly found that Dr. Chang’s opinions were entitled to little
weight because his “extreme conclusions ... were inconsistent with other evidence in the
record, including his own treatment notes.” (Doc. #11, PageID# 578).
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
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. 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
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.
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
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
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 Dillon placed no deferential weight on Dr. Chang’s
opinions under the treating physician rule and, instead, placed “little weight” on Dr.
Chang’s opinions. The ALJ first observed that the record showed only 5 visits with Dr.
Chang since March 2012. Although this number is accurate, those visits occurred between
March 2012 and late January 2013. Consequently, the length of this treatment period was
10 months and the frequency of visits was once every 2 months. The ALJ was silent about
the latter fact, which Plaintiff correctly characterizes as an “impressive amount of
treatment.” See Doc. #9, PageID# 560 (emphasis omitted). Even more to the point, by
looking only at the number of visits rather than considering the high frequency and
concomitant impressive amount of treatment these visits involved, the ALJ erred by
overlooking evidence that favored the conclusion that Dr. Chang had a more complete and
accurate picture of Plaintiff’s health problems and limitations than any other medical
source of record. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (“ALJ must consider all
the record evidence and cannot ‘pick and choose’ only the evidence that supports his
position.”); see Minor v. Comm'r of Soc. Sec., 513 Fed. 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 Fed. App’x 771, 777 (6th
Cir.2008) (finding error where the ALJ was “selective in parsing the various medical
Two other physicians upon whom the ALJ relied were Dr. Das and Dr. Teague.
They considered much less information than Dr. Chang because they reviewed the record
for the Ohio Bureau of Disability Determinations on December 21, 2011 and June 18,
2012, respectively. Their reviews thus occurred well before much of Dr. Chang’s
treatment and well before he provided his opinions in January 2013. The ALJ did not
consider this limited picture of Plaintiff’s health problems that Drs. Das and Teague had
when compared to the more complete and longitudinal picture provided to Dr. Chang by
Plaintiff’s frequent office visits and past medical records.
ALJ Dillon next concluded that Dr. Chang’s opinions were “unsupported by
objective signs and findings in the preponderance of the record.” (Doc. #12,
PageID#600). The ALJ explained:
[T]he primary care progress notes, as well as the hospital treatment notes,
generally show only some tenderness to palpation, decreased sensation, and
sensitivity to touch in the lower extremities. The limitations suggested by
Dr. Chang are out of proportion with these findings, and...., I find that the
limitation to a reduced range of light work adequately accounts for the
claimant’s diabetes, neuropathy, and respiratory condition....
Id. Substantial evidence does not support this reason for discounting Dr. Chang’s
opinions. Dr. Chang’s treatment notes on May 23, 2012 document that Plaintiff had “[n]o
sensation below knee for light touch & pin prick. Exquisite sensitivity in bilateral feet to
light touch. * These findings ... have been stable since last visit.” Id. at 367. Dr. Chang’s
treatment notes document the same findings on September 12, 2012. Id. at 363. These are
the objective signs and symptoms of neuropathy caused by Type II diabetes. See
http://www.mayoclinic.org (Search for: diabetic neuropathy symptoms). Plaintiff,
moreover, testified that his symptoms are often more severe during the night, as is often
the case with peripheral neuropathy caused by Type II diabetes. See id.
The ALJ is factually correct to recognize that treatment notes document some
tenderness to palpation, decreased sensation, and sensitivity to touch in the lower
extremities. But the ALJ incorrectly minimized this by finding “only some...” tenderness
to palpation, etc., then essentially finding that the symptoms were not severe enough to
support Dr. Chang’s opinions. These symptoms, however, are typical of patients with
diabetic neuropathy and, in the present case, cannot be reasonably read as contrary to Dr.
The evidence the ALJ points to is not as damning to Dr. Chang’s opinions as the
ALJ found. For example, the ALJ noted that during Plaintiff’s hospitalization for chest
pain in July 2010, “an examination of the extremities showed no edema or other
abnormalities, and a neurological exam showed no weakness.” (Doc. #12, PageID# 596
(citing Exhibit 1F, pages 20-22 (PageID#s 289-90)). One problem here is that edema is
not a sign or symptom of neuropathy. See http://www.mayoclinic.org (Search for: diabetic
neuropathy symptoms); see also, TABER’S CYCLOPEDIC MEDICAL DICTIONARY,
p. 1387 (19th ed. 2001). As a result, its absence does not conflict with Dr. Chang’s
opinions. Additionally, the ALJ’s finding of “no ... other abnormalities” overlooks that
physicians were performing a 14-point review of systems rather than a detailed
neurological examination or an attempt to assess the existence and severity of Plaintiff’s
neuropathy. The reason, moreover, that Plaintiff was in the hospital at that time was chest
pain. It is therefore not surprising that the focus of the examination was focused more on
Plaintiff’s cardiac symptoms and functioning and less on delving into detailed findings
regarding his other “systems.” See id. As to the lack of neurological weakness, this note
as it appears in the medical record is too general for a non-medical layperson to reasonably
understand that it as saying anything probative about the severity of Plaintiff’s neuropathy
The ALJ’s decision continues in this manner by seeming to stretch certain limited
aspects of Plaintiff’s medical records to support the ALJ’s non-disability conclusion. In
the next paragraph, the ALJ states that a cardiac workup in June 2011 “showed no
abnormalities ....” Id. at 596. This note is too general to be relevant to the severity of
Plaintiff’s neuropathy and related symptoms. The ALJ next states, “Although a
neurological examination shows stocking distribution of the feet, there were no areas of
focal weakness.” Id. The medical records do not indicate the significance of “no areas of
focal weakness,” and the ALJ does not cite evidence in the record indicating that such a
finding is contrary to Dr. Chang’s opinions.
The ALJ also repeatedly referred to the fact that Plaintiff was not taking insulin. Id.
The ALJ reported, for instance, that in July 2010, Plaintiff had not taken insulin in
approximately six months, due to lack of insurance...”; in June 2011, Plaintiff “admitted to
medication non-compliance for the past two months...”; in late July 2011, Plaintiff “had
stopped taking diabetic medications provided for him at the recent [hospital] discharge,
despite their ‘availability on the $4 medication lists at multiple pharmacies.’” Id. (brackets
and citations omitted). None of these records indicate that Plaintiff was being
disingenuous or uncooperative with physicians by not taking medications or insulin. The
record, instead, shows that Plaintiff lacked health insurance and often did not have money
to pay for insulin or medications or doctor visits. This appears, for example, in July 2010
records – “Patient states that he has not been on any medications in the past 6 months
secondary to no insurance....” Id. at 289. Dr. Weeks noted, in late July 2011, that Plaintiff
had stopped taking the medication he received upon his hospital discharge “due to their
costs despite their availability on the $4 med[ication] lists at multiple pharmacies.” (Doc.
#8, PageID# 318). When read in context, Dr. Weeks was not suggesting that Plaintiff was
being non-compliant or dishonest, as the ALJ apparently thought. Instead, Dr. Weeks was
essentially reporting that the prescribed medications Plaintiff needed were too expensive
for him to afford even though the cost was low. This is consistent with Dr. Chang’s
treatment notes stating, “Patient does have history of severe diabetic neuropathy that is
poorly controlled, again due to financial burden.” Id. at 355. And it is consistent with Dr.
Chang’s prognosis, which he rated as “poor, as long as patient continues to be unable to
support financially his medications and doctors’ appointments.” Id. at 392.
The ALJ was skeptical of Plaintiff’s need for a cane even though the ALJ
acknowledged that Dr. Chang found it reasonable for Plaintiff to have a cane due to his
balance issues and severe diabetic neuropathy. (Doc. #12, PageID# 597). The ALJ
reasoned that Dr. Chang’s opinion was “unsupported by the progress notes. In fact, Dr.
Chang documented a relatively normal physical examination at that time.” Id.
The ALJ relied on his own non-medical lay opinion in rejecting Dr. Chang’s
opinion about Plaintiff’s need for a cane. The ALJ’s description of Dr. Chang’s
examination results as “relatively normal,” overlooks or ignores the fact that Dr. Chang
found hypersensitivity in Plaintiff’s feet and diminished or no sensation to light touch and
pinprick along the bilateral lower extremities. These examination results were consistent
with the previous hospital findings that revealed a stocking distribution in Plaintiff’s feet.
These findings support Dr. Chang’s opinion that Plaintiff requires a cane to ambulate.
There is also nothing in these examination findings to suggest that a cane is not
necessary and no medical opinion disagreeing with Dr. Chang’s opinion about the help a
cane will provide Plaintiff. Instead, on November 16, 2012, Dr. DeRussy noted that he
agreed with Dr. Chang’s findings. (Doc. #8, PageID# 356). Dr. DeRussy also observed
that Plaintiff “could be a fall risk,” and Dr. DeRussy “[c]ertainly agree[s] that a cane
would be useful to him if he is feeling unsteady ....” Id.
The Commissioner observes that Plaintiff requested a cane from Dr. Chang only
after his attorney advised him to. Yet, Plaintiff explained during his testimony that he did
not know how to get a cane. This is not surprising in light of Plaintiff’s limited education.
Assuming Plaintiff’s attorney told him he needed a cane and instructed him to ask Dr.
Chang for a cane, there was nothing facially nefarious about this instruction. Without
evidence indicating that counsel’s advice was given for an improper purpose, it is
reasonable to concluded that the instruction grew from counsel’s genuine concern about
Plaintiff’s health, especially in light of counsel’s ethical duty of candor to the
administrative tribunal. See Rule 3.3, Ohio R. Prof. Cond. And, it is within an attorney’s
professional ethical boundaries to make such a non-legal recommendation. See Ohio
Rules of Prof. Cond., Rule 2.1, comment 4.4 This is especially true here where it turns out
that at least two physicians, Dr. Chang and Dr. DeRussy, believed that Plaintiff’s longexperienced symptoms of neuropathy places him at risk for falling and supports his need
for a cane.
Accordingly, Plaintiff’s Statement of Errors is well taken.
Remand For Benefits 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
right. Bowen, 478 F3d at 746. Remand may be warranted when the ALJ failed to provide
“good reasons” for rejecting a treating medical source’s opinions, see Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 545-47 (6th Cir. 2004); 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.”
See, e.g., Ohio Rules of Prof. Cond., Rule 2.1, comment 4 (“Matters that go beyond strictly
legal questions may also be in the domain of another profession.... Where consultation with a
professional in another field is itself something a competent lawyer would recommend, the lawyer should
make such a recommendation....”).
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 reversal of the ALJ’s decision and a judicial award of benefits are warranted in the
present case because the evidence of disability is either overwhelming or strong while
contrary evidence is weak. See Faucher, 17 F.3d at 176. There is no medical source
opinion in the record contrary to the opinion of Dr. Chang regarding the impact Plaintiff’s
severe neuropathy and resulting symptoms have on his work abilities except for recordreviewers Drs. Das and Teague. They, however, did not have the benefit of Dr. Chang’s
opinions, and they lacked many of his treatment notes, when they reviewed the record for
the Ohio Bureau of Disability Determinations. There is, moreover, no medical source
opinion of record that is contrary to Dr. Chang’s opinion – and at least one physician, Dr.
DeRussy, who agreed with Dr. Chang – that Plaintiff’s need for a cane was reasonable in
light of his balance issues and danger of falling caused by diabetic neuropathy. This is
dispositve – or as Plaintiff maintains – outcome determinative due to testimony by the
vocational expert during Plaintiff’s administrative hearing.
The ALJ formulated hypothetical questions based on the light-work abilities and
limitations he identified in his assessment of Plaintiff’s residual functional capacity. A
hypothetical person with these limitations and abilities would be able to perform thousands
of jobs available in the national economy, according to the vocational expert. (Doc. #8,
PageID# 89-90). The ALJ then added a need for this hypothetical worker to use “an
assistive device such as a cane, with either upper extremity, for all standing and walking
....” Id. at 91. The vocational expert testified that he could not identify any jobs that such a
person could perform. Without a significant number of jobs available to someone with
Plaintiff’s work abilities and limitations, he is under a benefits-qualifying disability.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.
IT IS THEREFORE RECOMMENDED THAT:
The Commissioner’s non-disability finding be vacated;
Plaintiff Michael Lawson’s application for Supplemental Security Income
protectively filed on July 28, 2011 be REMANDED to the Social Security
Administration for payment of benefits consistent with the Social Security
The case be terminated on the docket of this Court.
October 21, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief 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 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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