Nolte v. Social Security Administration

Filing 13

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Michael A. Nolte was under a "disability" within the meaning of the Social Security Act; this matter be REMAN DED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be TERMINATED on the docket of this Court. Objections to R&R due by 8/15/2016. Signed by Chief United States Magistrate Judge Sharon L. Ovington on 7/28/2016. (lek) Modified on 7/28/2016 (lek).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL A. NOLTE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:15-cv-176
:
: District Judge Walter H. Rice
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Michael A. Nolte applied for a period of disability, Disability Insurance

Benefits, and Supplemental Security Income on December 15, 2011. He asserted that he
could no longer work a substantial paid job as of December 31, 2009 due to lumbar
degenerative disc disease, permanent colostomy bag from childhood surgeries with some
renal issues, anxiety, and depression. His applications, medical records, and other
evidence proceeded to a hearing before Administrative Law Judge (ALJ) Amelia
Lombardo who later issued a written decision. The result of her decision was the denial
of Plaintiff’s application based on her central conclusion that Plaintiff was not under a

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

“disability” as defined in the Social Security Act. Plaintiff brings the present case
challenging ALJ Lombardo’s non-disability decision.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the
Commissioner’s Memorandum in Opposition (Doc. #12), the administrative record (Doc.
#6), and the record as a whole.
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Lombardo’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since December 31, 2009.

He filed his applications for benefits on December 15, 2011. He was forty-one years old
at the time and was therefore considered a “younger person” under Social Security
Regulations. He has at least a high school education.
A.

Hearing
1.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Lombardo that he is unable to work
because,
I’ve got three bulging disks in my back and there is no cartilage in-between
them. And plus I've had - - from birth I had 21 operations and the body was
just pieced together from the very beginning in life, so just over the years,
you know, working and everything, it just gradually got worse and worse
and worse. You know, I can’t cut grass hardly. I can’t hardly do anything.
There’s good days and there’s bad days, but I pay for it at the end, you
know. I will have the colostomy for the rest of my life.

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(Doc. #6, PageID #s 97-98). He explained that “all the strenuous work of pouring
concrete and the bouncing around, it’s messed up my back.” Id. at 99. The pain going
from his butt to his sciatic nerve is “excruciating.” Id. He was born with clubbed feet
that had to be surgically repaired. Id. at 108. He also has kidney and bladder infections
at least one “every couple weeks and then I have to start taking antibiotics.” Id.
Plaintiff’s treatment for his back problems includes pain medication from his
primary-care physician, epidural shots, physical therapy, a back brace, and a TENS unit.
Id. at 100. When his pain gets “unbearable,” he goes to the emergency room for a shot.
Id. at 101-02. He also has difficulties with his colostomy bag. Id. at 110. When he
bends or his back brace clips the bag, it comes loose, causes messes, and requires him to
change clothes once or twice per week. Id.
Plaintiff also struggles with anxiety and depression. Id. at 104. He has difficulty
with crowds of people. Id. He attended counseling, but they told him he did not need to
have any more appointments. Id. Although he is not in counseling, Dr. Patel at Focus
Care currently prescribes psychological medication. Id. at 111.
Plaintiff has lived at his mother’s house since his release from prison two years
prior to the hearing. Id. at 95. He was in prison on a drug possession charge. Id. at 96.
He testified that he is not using cocaine and has been clean for three years. Id. at 103. A
typical day includes “[a] lot of resting and a lot of laying down.” Id. at 105. He does not
sleep well and only gets about “an hour or two of good sleep a night and the rest is a lot
of restlessness, tossing and turning.” Id. at 103-04. He tries to clean dishes and cut the
grass for their small yard. Id. at 105. Plaintiff’s mom does the cooking and laundry. Id.
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He estimated that he could sit for between fifteen and twenty minutes before having to
switch sides. Id. at 99. He can walk “maybe half a block….” Id. at 101. If he walks too
much, he gets blisters on two toes on each foot. Id. at 108. He can lift ten to fifteen
pounds “at the most.” Id. at 102. He does not have problems with his arms, hands, or
fingers. Id.
2.

Vocational Expert

Mark Pinti, a vocational expert, testified at the hearing before the ALJ that a
person who is limited to light work could not do Plaintiff’s former jobs. Id. at 114. The
ALJ asked how many jobs were available to a person limited to the light exertional level
involving “simple, repetitive tasks that are low-stress, which I define as no assembly-line
production quotas and not fast-paced. No contact with the general public. Occasional
contact with coworkers and supervisors. Occasional ramps and stairs. Occasional
stooping, crouching, kneeling, and crawling. No ladders, ropes, scaffolds, heights, or
hazardous machinery.” Id. at 114-15. Mr. Pinti responded that there are at least 25,000
jobs available to a person with those restrictions. Id. He later added that there are
approximately 2,500 jobs available to a person with those restrictions who was limited to
sedentary work. Id. at 118. When asked if a person could sustain fulltime work if the
person was absent more than three days per month, Mr. Pinti responded, “No. I don’t
believe so. I believe that anything more than about one day per month of absenteeism
would not be tolerated. Id. at 117.

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B.

Medical Opinions
1.

Grandview Hospital

Plaintiff presented to the emergency room at Grandview Hospital with back pain
on March 7, 2010. Id. at 718-19. A CT taken of his lumbar spine showed multilevel
vertebral end plate degenerative changes. Id. at 724. There was a broad-based disc bulge
at L5-S1 with no significant spinal cord compression or neural foraminal encroachment.
Id.
Plaintiff presented to the emergency room again on December 28, 2011. Id. at
1082. He reported lower back pain that radiates down his right leg. Id. at 1083. They
prescribed prednisone and Robaxin. Id. at 1085. He returned to the emergency room on
December 31, 2011 for back and leg pain. Id. at 1095. They prescribed Toradol and
tramadol. Id. at 1097. On January 22, 2012, Plaintiff returned to request stronger pain
medication, as he was using Ultram without relief. Id. at 1105. They prescribed
prednisone and Flexeril. Id. at 1107. On February 26, 2016, he presented to the
emergency room again for severe back and leg pain. Id. at 1117. They prescribed
prednisone and Vicodin. Id. at 1119.
2.

Dr. Pamela Coffey

Dr. Pamela Coffey, Plaintiff’s family-care physician, began treating him in
January 2012. Id. at 809. Dr. Coffey determined that Plaintiff needed ostomy supplies
because although the colostomy site looked healthy at examination, there was a very high
infection risk. Id. at 810. Dr. Coffey requested a bladder scan to see if his neurogenic
bladder required him to do straight catheters and also to see if it was the cause of his
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recurrent urinary tract infections. Id. Dr. Coffey prescribed Bactrim for his recurrent
urinary tract infections. Id. She ordered an MRI for his sciatica and bulging disc and
continued Plaintiff on Ultram. Id. In January 2012, an MRI revealed multilevel
degenerative disc disease including a broad-based bulge of the L5-S1 intervertebral disc.
Id. at 1029-30. There was no significant encroachment of the thecal sac or nerve roots.
Id.
In March 2012, Plaintiff complained of right sided sciatic pain, noting that he was
currently working laying concrete. Id. at 1025. Dr. Coffey referred Plaintiff to the pain
clinic for back injections, prescribed Mobic, and increased Plaintiff’s prescriptions for
Neurotin and Flexeril. Id. Plaintiff's sciatica was worse in May 2012, but he reported
physical therapy was helping. Id. at 1023. Plaintiff also told Dr. Coffey that he was
having problems with his toes, and Dr. Coffey referred him to a podiatrist. Id. at 1024.
In June 2012, Dr. Coffey diagnosed Plaintiff with right subacromial bursitis and
gave him a steroid injection. Id. at 1021. X-rays in September 2012 revealed a normal
right shoulder. Id. at 1046. Dr. Coffey gave Plaintiff another steroid injection in October
2012. Id. at 1019.
In July 2012, Plaintiff reported that his sciatica pain was worse and that he had
increased numbness and tingling down his right leg. Id. at 1020. In August 2012, Dr.
Coffey’s notes indicate he was experiencing a burning pain in his lower back radiating
down his right leg. Id. at 1020. Dr. Coffey suggested he meet with surgeons. Id. In
December 2012, Dr. Coffey indicated he declined surgery and requested to go to a painmanagement clinic to delay surgery. Id. at 1017. Dr. Coffey’s notes from January 2013
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indicate he was receiving steroid injections in his back from Dr. Townsend-Smith and he
also has a TENS unit. Id. at 1016.
In March 2013, Dr. Coffey noted that an MRI from September 2012 revealed L5S1 spondylosis with left osseous neural foraminal narrowing impinging on the exiting left
L5 nerve root; L4-5 disc desiccation, bulging, and posterior annular tear; and additional
degenerative changes. Id. at 939-40, 1015. Dr. Coffey also noted that Plaintiff’s pain
was not well-controlled and referred him to the pain clinic for further pain management
and possible injections. Id.
On May 6, 2013, Dr. Coffey opined that Plaintiff could lift and carry ten pounds
frequently and ten pounds occasionally; stand/walk for three hours in an eight-hour
workday and up to thirty minutes on any single occasion without interruption; and sit
three hours in an eight-hour workday and up to thirty minutes on any single occasion
without interruption. Id. at 1078-79. She opined that he could occasionally climb and
balance, but never stoop, crouch, kneel, or crawl. Id. at 1079. Dr. Coffey based the
limitations on sciatic of his right side and nerve impingement as “seen on MRI.” Id. Dr.
Coffey further opined that “vibrations, climbing to high work places, driving machinery,
[and] extreme temps can all worsen the sciatica,” and as a result, exposure should be
limited. Id. at 1080. Dr. Coffey opined that due to Plaintiff’s impairments and treatment,
he would miss work more than three times per month. Id. at 1082. Dr. Coffey concluded
that he would not have the residual functional ability to do light work on a sustained
basis, but he would be able to do sedentary work on a sustained basis. Id. at 1081.

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3.

Dr. Omar Siddiqi

Plaintiff began treatment with primary-care physician, Dr. Omar Siddiqi, in July
2013. Id. at 1232. Dr. Siddiqi noted that Plaintiff had significant back pain. Id. He also
noted that Plaintiff did cocaine the day before and does it daily. Id. Plaintiff saw Dr.
Siddiqi again in August 2013. Id. at 1229. Dr. Siddiqi refused to prescribe any
additional pain medication because he referred him to a pain specialist and Plaintiff was
doing cocaine daily. Id. at 1230.
4.

Dr. Dimitri Teague and Dr. Leslie Green

On January 13, 2012, Dr. Dimitri Teague, a non-examining State agency
physician, reviewed Plaintiff’s medical records. Id. at 141-50. Dr. Teague determined
that Plaintiff’s severe impairments included a disorder of the gastrointestinal system and
chronic renal failure. Id. at 145. Dr. Teague opined that he could lift/carry twenty
pounds occasionally and ten pounds frequently. Id. at 146. He could stand/walk for six
out of eight hours and sit for six out of eight hours. Id. Dr. Teague also opined that he
could only occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; he could
never climb ladders, ropes or scaffolds; and he should avoid concentrated exposure to
hazards such as heights and scaffolds. Id. at 146-47. Dr. Teague concluded that Plaintiff
was not under a disability.
On August 14, 2012, another non-examining State agency physician, Dr. Leslie
Green, reviewed the medical evidence upon reconsideration and affirmed Dr. Teague’s
assessment. Id. at 166-73. Additionally, Dr. Green added affective disorder to his severe
impairments. Id. at 168. Dr. Green also added environmental limitations, finding that
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not only should Plaintiff avoid concentrated exposure to hazards such as heights and
scaffolds, he should also avoid concentrated exposure to extreme heat, wetness, humidity,
and vibration. Id. at 172. Finally, Dr. Green added that he was moderately limited in his
abilities to maintain attention and concentration for extended periods; complete a normal
workday and workweek without interruptions from psychologically based symptoms and
perform at a consistent pace without an unreasonable number and length of rest periods;
accept instructions and respond appropriately to criticism from supervisors; and respond
appropriately to changes in the work setting. Id. at 173-74.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income 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. §§ 423(a)(1), 1382(a). The term “disability” – 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. 42 U.S.C. §§ 423(d)(1)(A), 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
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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 (citations
and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Lombardo to evaluate the evidence connected

to Plaintiff’s application for benefits. She did so by considering each of the five
sequential steps set forth in the Social Security Regulations. See 20 C.F.R. §§ 404.1520,
416.920.2 She reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
December 31, 2009.

Step 2:

He has the severe impairments of lumbar degenerative disc disease,
permanent colostomy bag from childhood surgeries with some renal
issues, anxiety, and depression.

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.

2

The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.

10

Step 4:

His residual functional capacity, or the most he could do in a work
setting despite his impairments, see Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 239 (6th Cir. 2002), consisted of “sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) subject to the
following limitations: occasional climbing of ramps and stairs;
occasional stooping, crouching, kneeling, and crawling; no ladders,
ropes, or scaffolds; no exposure to heights or hazards; only simple,
repetitive tasks that are low stress with no assembly line production
quotas and work that is not fast paced; no contact with the general
public and only occasional contact with coworkers and supervisors.”

Step 4:

He is unable to perform any of his past relevant work.

Step 5:

He could perform a significant number of jobs that exist in the
national economy.

(Doc. #6, PageID #s 74-85). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 84.
V.

Discussion
Plaintiff contends that the ALJ failed to properly weigh his treating physician’s

opinion. He also asserts that the ALJ erred in finding that he was not credible. The
Commissioner maintains that the ALJ properly weighed the medical opinions of record
and substantial evidence supports the ALJ’s finding that Plaintiff was not fully credible.
A.

Dr. Coffey’s Opinion

ALJ Lombardo determined that the opinion of Dr. Pamela Coffey, Plaintiff’s
treating physician, was entitled to little weight. (Doc. #6, PageID #82). Social Security
Regulations recognize several different categories of medical sources: treating
physicians, nontreating yet examining physicians, and nontreating yet record-reviewing
physicians. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013).

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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.”
Id. (quoting in part Soc. Sec. Rul. No. 96–6p, 1996 WL 374180, at *2 (Soc. Sec. Admin.
July 2, 1996), and citing 20 C.F.R. §§ 404.1502, 404.1527(c)(1)–(2)). 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 the other substantial evidence in [the] case
record.”
Id. at 376 (quoting in part 20 C.F.R. § 1527(c)(2)); see Gentry, 741 F.3d at 723. If 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
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. No. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to

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any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
Plaintiff asserts that the ALJ failed to give the appropriate weight to the opinion of
Plaintiff’s treating physician, Dr. Coffey. The ALJ determined that “Dr. Coffey’s
opinion is not entitled to controlling or significant weight and is given little weight….”
(Doc. #6, PageID #82). Although the ALJ included a lengthy explanation of the legal
standards concerning how to weigh medical opinions, she only provided one brief
paragraph to explain the little weight she assigned to Dr. Coffey’s opinion:
Her assessment is internally inconsistent. She offers no basis for her
opinion that he would miss work more than three times per month. Her
notes at Exhibit 18F carry a diagnosis of sciatica on the right and note a
positive straight leg raise on occasion, however they contain no indication
of unreliability in a work situation; in fact, she reported in one treatment
note that he was working laying concrete, a job claimant testified that he
performed for a short period but had to stop due to back pain.
Id.
The ALJ must first determine whether a treating physician’s opinion is entitled to
controlling weight before evaluating the opinion under the factors. Gayheart, 710 F.3d at
376 (citing 20 C.F.R. § 404.1527(c)(2)). In the present case, the ALJ seems to have
determined Dr. Coffey’s opinion is not entitled to controlling weight because Dr.
Coffey’s opinion is internally inconsistent. Specifically, the ALJ observed that in the
assessment, Dr. Coffey estimated Plaintiff could stand/walk for a total of three hours
during an eight-hour workday, and he could sit for a total of three hours during an eighthour workday. (Doc. #6, PageID #1078). Dr. Coffey then indicated he has the residual

13

functional ability to do sedentary work on a sustained basis in an eight-hour workday. Id.
at 1081.
Assuming that the ALJ concluded that Dr. Coffey’s opinion was not entitled to
controlling weight because of this inconsistency, the ALJ’s review is not complete. In
fact, this is only the start of the required inquiry:
Treating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 CFR 404.1527 and 416.927.
In many cases, a treating source’s medical opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet the test for
controlling weight.
Id. The ALJ only provided one other reason for rejecting Dr. Coffey’s opinion.
According to the ALJ, Dr. Coffey failed to provide a basis for her opinion that
Plaintiff would absent from work more than three times per month. (Doc. #6, PageID
#82). However, the ALJ ignores that the assessment form Dr. Coffey completed does not
provide any space for an explanation. Because the form does not ask for an explanation,
Dr. Coffey’s answer must be read in the context of all the information included in the
assessment. Dr. Coffey explained in support of her opinion that Plaintiff’s limited ability
to lift/carry (ten pounds occasionally and frequently) was caused by his right-side sciatica
and by nerve impingement on his left lumbo-sacral nerve as seen on an MRI taken in
September 2012. Id. at 1077-78. Dr. Coffey also believed that Plaintiff’s right-side
sciatica and the nerve impingement on his left side limited him to three hours of
standing/walking during an eight-hour workday. Id. at 1078. And, to explain why
Plaintiff could sit for a total of three hours in an eight-hour workday, why his postural
activities were limited, and why he was limited in certain physical functions, Dr. Coffey
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again pointed to his right-side sciatica and the nerve impingement seen on the MRI. Id.
at 1078-79. Dr. Coffey noted that work activities of reaching, pushing, and pulling “puts
more stress on the affected area creating more pain.” Id. at 1080. Given the lack of
space on the form for Dr. Coffey to explain her opinion – that Plaintiff would be absent
on average more than three days per month – this opinion must be read within the context
of information Dr. Coffey provided about Plaintiff’s impairments elsewhere in the form.
By overlooking or ignoring this context, the ALJ unreasonably isolated Dr. Coffey’s
absent-three-days-per-month opinion from the consistent explanations she repeatedly
provided elsewhere in the same form. As a result, substantial evidence fails to support
the ALJ’s finding that Dr. Coffey failed to provide a basis for her opinion that Plaintiff
would be absent more than three days per month on average.
The ALJ also asserts Dr. Coffey’s treatment notes contain “no indication of
unreliability in a work situation.” Id. at 82. The ALJ is correct that Dr. Coffey did not
indicate in her treatment notes whether Plaintiff was reliable in a work situation.
However, there was no particular reason for Dr. Coffey to comment on Plaintiff’s
reliability at work in her treatment notes, limited as they logically are to medical rather
than vocational concerns.
Further, the ALJ failed to acknowledge that Dr. Coffey’s treatment records do
show that Plaintiff required frequent medical treatment on a fairly consistent basis. For
example, Plaintiff met with Dr. Coffey approximately fourteen times during the fourteenmonth period between January 2012 and April 2013. Id. at 809, 1014-27. Dr. Coffey’s
notes also establish that Plaintiff received additional treatment from several other
15

providers during the same time period. For example, she noted that he received x-rays
and MRIs, he obtained steroid injections from Dr. Townsend-Smith, he attended physical
therapy, and he was referred to surgeons and pain management. Id. Together, these
records establish that Plaintiff would be required to be absent from work to attend
medical treatment.
Although the ALJ attempted to minimalize the results of the September 2012
MRI, the MRI is objective medical evidence of Plaintiff’s impairments. The MRI
revealed concentric disc bulging at L3-4, disc desiccation, bulging, and a posterior
annular tear at L4-5, and L5-S1 spondylosis with left osseous neural foraminal narrowing
impinging on the exiting left L5 nerve root. Id. at 939-40. The ALJ contends that
Plaintiff’s nerve impingement on the exiting left L5 nerve root shown in the MRI is
inconsistent with the EMG that primarily showed problems on Plaintiff’s left side. In
response, Plaintiff asserts that the medical community recognizes lumbar disc herniation
with contralateral symptoms. (Doc. #8, PageID #1252) (citing Hasan K. Sucu & Fazil
Gelal, Lumbar Disk Herniation with Contralateral Symptoms, 15 Eur. Spine J. 570
(2006), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3489328/). As
acknowledged by the ALJ, the MRI occurred after the State agency record-reviewing
physicians reviewed Plaintiff’s records. Thus, Dr. Coffey is the only physician that
examined the MRI and formed a medical opinion based on the results.
The Commissioner claims that the ALJ provided a “myriad of reasons” for giving
Dr. Coffey’s opinion little weight. (Doc. #12, PageID #1271). But the Commissioner
then only points to the internal inconsistencies in Dr. Coffey’s assessment and the limited
16

explanations provided by Dr. Coffey. Id. at 1271-72. The two reasons provided by the
ALJ do not amount to “good reasons” for rejecting Dr. Coffey’s opinion. At best, the
ALJ superficially examined internal inconsistencies and the supportability of one answer
given by Dr. Coffey. But she failed to address any other factors, specifically overlooking
the length, frequency, nature, and extent of the treatment relationship; consistency with
the record as a whole; and specialization. “The failure to provide ‘good reasons’ for not
giving [the treating physician’s] opinions controlling weight hinders a meaningful review
of whether the ALJ properly applied the treating-physician rule….” Gayheart, 710 F.3d
at 377. The ALJ’s reasons for rejecting Dr. Coffey’s opinions are not supported by
substantial evidence. Therefore, the ALJ’s finding that Dr. Coffey’s opinion is entitled to
“little weight” is also not supported.
Dr. Coffey’s opinion that Plaintiff would be absent from work more than three
days per month could be dispositive in determining whether Plaintiff is under a disability
because the vocational expert testified that missing more than one day of work per month
would not be tolerated by an employer. For that reason, it was critical for the ALJ to
carefully review Dr. Coffey’s opinions as the Regulations mandate and to determine the
appropriate weight supported by good reasons and substantial evidence. In this case, the
ALJ failed to do so.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3

3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s challenge to the ALJ’s credibility assessment of Plaintiff is unwarranted.

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B.

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
right. Bowen, 478 F.3d 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 F.3d at 747-50; failed to
consider the combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d at 72526; or failed to provide specific reasons supported by substantial evidence for finding the
plaintiff to lack credibility, see Rogers, 486 F.3d at 249.
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 weak. 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 not overwhelming and the evidence of disability is not strong
while contrary evidence is weak. However, Plaintiff is entitled to an Order remanding
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this case to the Social Security Administration pursuant to sentence four of § 405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, particularly the medical source opinions, under the applicable legal
criteria mandated by the Commissioner’s Regulation and Rulings and by case law; and to
evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether his application for
Disability Insurance Benefits and Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

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

3.

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 Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be terminated on the Court’s docket.

Date: July 28, 2016

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 if 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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