Marks v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED re 2 Complaint filed by Mary C. Marks. Objections to R&R due by 7/28/2016. Signed by Magistrate Judge Michael J. Newman on 7/11/16. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARY C. MARKS,
Plaintiff,

Case No. 3:15-cv-339

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”).2

This case is before the Court upon Plaintiff’s Statement of Errors (doc. 7), the

Commissioner’s memorandum in opposition (doc. 10), Plaintiff’s reply (doc. 11), the
administrative record (doc. 6),3 and the record as a whole.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920[,] respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of October 15, 2005.
PageID 185-88, 203-13.

Plaintiff claims disability as a result of a number of alleged

impairments including residuals of a 1988 right ankle fracture, diabetes mellitus, and depression.
PageID 68.
After initial denials of her applications, Plaintiff received a hearing before ALJ Gregory
G. Kenyon on January 31, 2014. PageID 80-104. The ALJ issued a written decision on March
27, 2014 finding Plaintiff not disabled. PageID 64-75. Specifically, the ALJ’s findings were as
follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2010.

2.

The claimant has not engaged in substantial gainful activity since
October 15, 2005, the alleged onset date (20 CFR 404.1571 et seq. and
416.971 et seq.).

3.

The claimant has the following severe impairments: residuals of a
1988 right ankle fracture; diabetes mellitus; and depression (20 CFR
404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

2

5.

The undersigned finds that the claimant retains the residual functional
capacity [“RFC”] to perform medium[4] level work subject to the
following limitations: (1) frequent crouching, crawling, kneeling,
stooping, balancing, and climbing of ramps and stairs; (2) no climbing
of ladders, ropes, and scaffolds; (3) no work around hazards such as
unprotected heights or dangerous machinery; (4) limited to performing
unskilled, simple, repetitive tasks; (5) limited to jobs involving no
more than occasional contact with co-workers and supervisors; (6) no
public contact; (7) no jobs involving fast paced production work or
strict production quotas; and (8) limited to performing jobs in a
relatively static work environment in which there is very little, if any,
change in the job duties or the work routine from one day to the next.

6.

The claimant is unable to perform any [of her] past relevant work (20
CFR 404.1565 and 416.965).

7.

The claimant was born [in] 1958 and was 47 years old, which is
defined as a younger individual age 18-49, on the alleged disability
onset date. The claimant subsequently changed age category to
closely approaching advanced age (20 CFR 404.1563 and 416.963).

8.

The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (20 CFR 404.1568 and
416.964).

10.

Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).

4

The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Medium work “involves
lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25
pounds.” Id. § 404.1567(c). An individual who can perform medium work is presumed also able to
perform light and sedentary work. Id. Light work “involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds” and “requires a good deal of
walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls.”
Id. § 404.1567(b). An individual who can perform light work is presumed also able to perform sedentary
work. Id. Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties.” Id. § 404.1567(a).
3

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from October 15, 2005, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).

PageID 66-74.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 46-49.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).
B.

Evidence of Record

The ALJ set forth a detailed recitation of the underlying medical evidence in this case.
PageID 63-73. Plaintiff and the Commissioner both summarize the record evidence in their
respective filings. Doc. 7 at PageID 600-05; doc. 10 at PageID 619-22. Accordingly, except as
otherwise noted, the undersigned incorporates the ALJ’s recitation of the evidence as well as the
parties’ summaries of the evidentiary record. Where applicable, the Court will identify the
medical evidence relevant to this Report and Recommendation.
II.
A. Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).

4

Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

5

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled
under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th
Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues that the ALJ erred in: (1) relying on the
opinions of record-reviewers Gary Hinzman, M.D. and Diane Manos, M.D. to the exclusion of
treating physician Rajindra Bhat, M.D.; and (2) finding her not fully credible. Doc. 7 at PageID
606-12. The undersigned finds the ALJ committed reversible error in weighing Dr. Bhat’s
opinion, and thus, does not reach Plaintiff’s second assignment of error.
“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical source
opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. Id. “Next in the
hierarchy are examining physicians and psychologists, who often see and examine claimants
only once.” Id. “[N]on-examining physicians’ opinions are on the lowest rung of the hierarchy
of medical source opinions.” Id. “The regulations provide progressively more rigorous tests for

6

weighing opinions as the ties between the source of the opinion and the individual [claimant]
become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
“An ALJ is required to give controlling weight to ‘a treating source’s opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s)’ if the opinion ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” LaRiccia v. Comm’r of
Soc. Sec., 549 F. App’x 377, 385 (6th Cir. 2013) (citation omitted) (alterations in original). This
requirement is known as the “treating physician” rule. Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 406 (6th Cir. 2009) (citation omitted).

Greater deference is given to treating source

opinions “since these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective
to the medical evidence that cannot be obtained from the objective medical findings alone or
from reports of individual examinations[.]” 20 C.F.R. § 404.1527(c)(2); see also Blakley, 581
F.3d at 406. Thus, an ALJ must give controlling weight to a treating source if the ALJ finds the
treating physician’s opinion well-supported by medically acceptable evidence and not
inconsistent with other substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004).
Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] the ALJ to always give good reasons in [the] notice of determination or decision for
the weight given to the claimant’s treating source’s opinion.” Blakley, 581 F.3d at 406-07.
“Those good reasons must be ‘supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight.’” Id.

7

Thus, when the ALJ declines to give controlling weight to a treating physician’s
assessment, “the ALJ must still determine how much weight is appropriate by considering a
number of factors, including the length of treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the treating
physician.” Id. at 406; see also 20 C.F.R. § 404.1527(c).5 In addition, unless the opinion of the
treating source is entitled to controlling weight, an ALJ must “evaluate all medical opinions
according to [these] factors, regardless of their source[.]” Walton v. Comm’r of Soc. Sec., No.
97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
Dr. Bhat treated Plaintiff for various physical impairments beginning in 2005.

See

PageID 399, 401. On November 9, 2010, he listed Plaintiff’s medical conditions as including
chronic right ankle pain, plantar fasciitis, diabetes, hypertension, gastroesophageal reflux disease
(“GERD”), and obesity. PageID 441. Dr. Bhat also opined that Plaintiff can walk/stand for
thirty minutes at a time (up to two hours out of an eight hour workday); can frequently lift/carry
up to five pounds and occasionally lift/carry up to ten pounds; is markedly limited in her ability
to push/pull and perform repetitive foot movements; and is moderately limited in her ability to
bend. PageID 442. Such limitations translate into a restriction to sedentary work activity. See
PageID 71, 103; 20 C.F.R. § 404.1567(a); Social Security Ruling (“SSR”) 83-10, 1983 WL
31251, at *5 (Jan. 1, 1983) (stating that, at the “sedentary level of exertion, periods of standing or
walking should generally total no more than about 2 hours of an 8-hour workday, and sitting

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12 CV 3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R.
§ 404.1527. Id.
5

8

should generally total approximately 6 hours”). Although typically an individual who can
perform sedentary work is deemed “not disabled,” given Plaintiff’s age and other relevant
vocational factors, it is arguable that a sedentary work finding would deem Plaintiff disabled
under the Medical-Vocational Guidelines (“Grid”).6

See 20 C.F.R. Part 404, Subpart P,

Appendix 2, Rule 201.10.
The ALJ gave Dr. Bhat’s opinion “little weight,” stating:
The claimant’s right ankle pain began in 1988 after a fracture. However,
the claimant returned to her light work activity until 2005 when she was
let go for lack of educational credentials. There is otherwise no reason to
believe she would have stopped working. The claimant’s “plantar
fasciitis” is not well documented in the record and nor is the treatment
therefore. Her diabetes is uncontrolled because she is not compliant with
diet, exercise, or medications. Lastly, the record reflects her treatment for
her impairments did not begin until September 2005 or after her
termination. Dr. Bhat’s records do not suggest a reason the claimant could
not perform medium work activity, which has the same stand/walk
requirements as light work.
PageID 71-72. The undersigned agrees with Plaintiff that the ALJ erred in analyzing, and
ultimately discounting, Dr. Bhat’s opinion.
Initially, the undersigned notes that the ALJ failed to mention the “controlling weight”
concept and made no specific finding -- and provided no analysis -- as to whether Dr. Bhat’s
opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques
and . . . not inconsistent with other substantial evidence in the case record[,]” i.e., the factors for
determining whether a treating physician’s opinion is entitled to controlling weight. See 20
The ALJ considers the Grid “in the fifth and final stage of the disability determination, after it
has been determined that the claimant has not met the requirements of a listed impairment but is
nevertheless incapable of performing past relevant work.” Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir.
1990). The Grid sets forth the vocational factors of age, education, work experience, and maximum
sustained work capability. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 200.00(a). A plaintiff’s
“maximum sustained work capability” is categorized as one of five “exertional levels” -- including the
sedentary exertional level -- and is defined as “[t]he highest functional level a person can perform on a
regular work basis[.]” SSR 83-10, 1983 WL 31251, at *6.
6

9

C.F.R. § 404.1527(c)(2). The ALJ’s silence in this regard omits reference to the number of
objective and/or clinical findings tending to support Dr. Bhat’s opinion, such as: tenderness and
reduced range of motion on exam, PageID 375; an abnormal gait, PageID 354; multiple x-rays
indicating joint space narrowing at the ankle mortise associated with sclerosis and soft-tissue
swelling, PageID 408, 556; decreased sensation in her feet, right ankle swelling, and decreased
range of motion, PageID 480, 486, 518, 528; and increased lumbar lordosis. PageID 573. The
ALJ’s failure to conduct a controlling weight analysis -- and, further, to address the foregoing
objective and/or clinical evidence in rejecting Dr. Bhat’s opinion -- deprives the Court of the
opportunity to meaningfully review whether he undertook the “two-step inquiry” required when
analyzing treating source opinions. See supra note 5; see also Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 376-78 (6th Cir. 2013) (stating that the lack of explanation regarding the
“controlling weight [analysis] hinders a meaningful review of whether the ALJ properly applied
the treating-physician rule that is at the heart of this regulation”). Such failure amounts to
reversible error. See Aytch v. Comm’r of Soc. Sec., No. 3:13-cv-135, 2014 WL 4080075, at *5
(S.D. Ohio Aug. 19, 2014) (citation omitted).
Even assuming, arguendo, that the ALJ properly conducted a controlling weight analysis
-- which the undersigned concludes he did not -- the ALJ failed to provide good reasons for the
ultimate weight given to Dr. Bhat’s opinion. For example, the ALJ tried to discredit Dr. Bhat’s
opinion concerning Plaintiff’s physical limitations by pointing out that her “diabetes is
uncontrolled because she is not compliant with diet, exercise, or medications.” PageID 72.
Under the Social Security regulations, a claimant must follow treatment recommendations in
order to be awarded benefits, unless the claimant can demonstrate a “good reason” for noncompliance. 20 C.F.R. § 404.1530(a)-(b).

10

Here, the ALJ failed to consider whether Plaintiff’s non-compliance with treatment was
due to a “good reason.” This failure might have been harmless had the record contained no
evidence supporting a plausible reason for non-compliance. The record contains such evidence,
however.

For instance, evidence of record shows that, at one point, Plaintiff ran out of

medication and could not afford to buy more. PageID 395; see also SSR 82-59, 1982 WL
31384, at *1 (Jan. 1, 1982) (stating that an inability to afford treatment can be an acceptable
reason for failing to comply with treatment). In addition, mental health treatment records note
that Plaintiff was overwhelmed with her diabetes care, and was caring for her brother who was
gravely ill with Stage IV cancer. PageID 536. Additionally, the record reveals that Plaintiff
suffers from depression, a mental health disorder the ALJ found to be a “severe impairment” in
Plaintiff’s case. See PageID 66. As stated by the Sixth Circuit, the failure to seek or comply
with treatment recommendations can simply be a symptom of mental health disorders. White v.
Comm’r of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009). With regard to Plaintiff’s purported
failure to comply with diet recommendations, the Court also notes that “physicians’
recommendations to lose weight do not necessarily constitute a prescribed course of treatment,
nor does a claimant’s failure to accomplish the recommended change constitute a refusal to
undertake treatment.” Johnson v. Sec’y of Health & Human Servs., 794 F.2d 1106, 1113 (6th
Cir. 1986); Posey v. Heckler, No. 85-5410, 1987 WL 36583, at *3 (6th Cir. Jan 14. 1987).
Based upon the foregoing, the undersigned concludes that the ALJ’s cursory treatment of
the non-compliance issue fails to demonstrate consideration of any reason for Plaintiff’s
purported non-compliance with treatment.

Absent further explanation by the ALJ, the

undersigned concludes that Plaintiff’s purported failure to comply with treatment does not
provide a “good reason” for rejecting Dr. Bhat’s opinion.

11

The undersigned also finds the ALJ’s assessment of Dr. Bhat’s opinion fails to consider
the significant factors under 20 C.F.R. § 404.1527(c) favoring the assessment of deferential
weight. Blakley, 581 F.3d at 406 (stating that when the ALJ declines to give controlling weight
to a treating physician’s assessment, “the ALJ must still determine how much weight is
appropriate by considering a number of factors” set forth in 20 C.F.R. § 404.1527(c)). Here, the
ALJ fails to mention Dr. Bhat’s long-term treatment relationship with Plaintiff -- over five years
at the time he provided his opinion -- and how he could, therefore, provide a meaningful,
“detailed, longitudinal picture of [Plaintiff’s] medical impairment[,]” as contemplated by the
regulations.

See 20 C.F.R. § 404.1527(c)(2); PageID 399-401.

The ALJ also failed to

acknowledge the consistency between Dr. Bhat’s opinion and the opinion of podiatrist Tanisha
Richmond, D.P.M. -- i.e., the only other medical source to have treated or personally examined
Plaintiff.7 20 C.F.R. § 404.1527(c)(4) (“the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion”). Notably, Dr. Richmond similarly opined
in April 2010 that Plaintiff is limited to sedentary work. PageID 439-40.
Finally, the ALJ’s conclusory analysis of the “great weight” given to the record reviewers
exacerbates these aforementioned errors. Drs. Hinzman and Manos both provided opinions in
which they concluded Plaintiff is capable of medium work activity with postural limitations

7

Plaintiff also argues that the ALJ erred in his treating source analysis of Dr. Richmond. Doc. 7
at PageID 606-11. However, it appears that Dr. Richmond only saw Plaintiff on one occasion and,
therefore, Dr. Richmond is not a “treating physician” under the applicable regulations. PageID 439-41;
see 20 C.F.R. § 404.1502 (defining a treating source as a physician who “has provided [Plaintiff] with
medical treatment or evaluation and who has, or has had, an ongoing relationship with [Plaintiff]”; see
also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). While Dr. Richmond is not a
treating source, the ALJ was still required to evaluate her “medical opinion[] according to [the 20 C.F.R.
§ 404.1527(c)] factors[.]” Walton, 1999 WL 506979, at *2. Finding remand warranted based upon the
ALJ’s analysis of Dr. Bhat’s opinion, the undersigned makes no finding regarding Dr. Richmond’s
opinion. Instead, Dr. Richmond’s opinion -- along with all medical opinion evidence of record -- should
be assessed anew on remand.
12

related to her left ankle condition and diabetes. PageID 71, 111-12, 123-25. The entirety of the
ALJ’s analysis of the record reviewers’ opinions is as follows:
The undersigned gives these opinions great weight and adopted some of
the postural restrictions but has further restricted the claimant to no
climbing of ladders, ropes, or scaffolds and no work around hazards due to
her ankle and diabetes.
PageID 71. The ALJ makes no effort to specifically scrutinize the opinions of the recordreviewers and points to nothing in the record to support their warranting “great weight.” The
ALJ’s conclusory assessment of the record-reviewers’ opinions thus erroneously fails to give a
meaningful explanation of any of the required 20 C.F.R. § 404.1527(c) factors, and evidences
application of “greater scrutiny” to the opinions given by treating sources, a practice deemed
error by the Sixth Circuit. See Gayheart, 710 F.3d at 380 (holding that “the regulations do not
allow the application of greater scrutiny to a treating-source opinion as a means to justify giving
such an opinion little weight[,]” and “[i]ndeed, they call for just the opposite”). Therefore, even
assuming, arguendo, that the ALJ conducted a proper “controlling weight” analysis of Dr. Bhat’s
opinion, the ALJ’s decision should still be reversed as a result of the ALJ’s failure to
appropriately weigh the opinions of the record-reviewers in accordance with the Social Security
regulations and Sixth Circuit precedent.
IV.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to award benefits.
Generally, benefits may be awarded immediately “if all essential factual issues have been
resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of disability
13

is strong and opposing evidence is lacking in substance, so that remand would merely involve the
presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17
F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery v. Heckler,
771 F.2d 966, 973 (6th Cir. 1985).
In this case, the evidence of disability is not overwhelming.

There are conflicting

medical opinions regarding the severity of Plaintiff’s impairments. See supra. Therefore, a
remand for further proceedings is proper.

On remand, the ALJ should: (1) conduct an

appropriate review of all evidence of record; (2) assess Plaintiff’s credibility; and (3) determine
Plaintiff’s disability status anew.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be found unsupported by
substantial evidence, and REVERSED;

2.

This matter be REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this
opinion; and

3.

This case be CLOSED.

Date: July 11, 2016

/s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

14

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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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