Jones v. Commissioner of Social Security

Filing 13

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 Objections to R&R due by 2/24/2017. Signed by Magistrate Judge Michael J. Newman on 2/10/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SARAH E. JONES,
Plaintiff,

Case No. 3:15-cv-00428

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Thomas M. Rose
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 Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits
(“DIB”).2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 10), the
Commissioner’s memorandum in opposition (doc. 11), Plaintiff’s reply (doc. 12), the
administrative record (doc. 5), and the record as a whole.3

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 applications for SSI and DIB asserting disability as of January 1, 2008.
PageID 286-96. Plaintiff claims disability as a result of a number of impairments including,
inter alia, obesity, asthma, and chronic obstructive pulmonary disease. PageID 59-60, 150-51.
Plaintiff’s applications were denied initially and on reconsideration. PageID 187-93,
196-201.

Following a hearing, ALJ Irma Flottman issued a decision finding Plaintiff not

disabled. PageID 118-48, 155-81. The Appeals Council remanded the case based on ALJ
Flottman’s analysis of Plaintiff’s past relevant work experience. PageID 182-85.
Plaintiff received a second hearing before ALJ Emily Status on June 10, 2014. PageID
57. ALJ Status issued a written decision on August 11, 2014 also finding Plaintiff not disabled.
PageID 57-73. Specifically, ALJ Status found as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2012.

2.

The claimant has not engaged in substantial gainful activity since
January 1, 2008, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe impairments: obesity; asthma;
chronic obstructive pulmonary disease; arthritis; bipolar disorder;
panic disorder; post-traumatic stress disorder (PTSD); history of
polysubstance abuse; organic mood disorder; multi-level discogenic
disease of the thoracic spine; multi-level degenerative
changes/degenerative disc disease of lumbar spine; carpal tunnel
syndrome, status post carpal tunnel release on left; right 5th finger
amputation; migraine headaches; two small intracranial aneurysms
status post coiling; stable aneurysm, and mitral valve prolapse (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

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416.926).
5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity [“RFC”] to
perform light work[4] as defined in 20 CFR 404.1567(b) and
416.967(b). This individual could lift[] and/or carry[] 20 pounds
occasionally, and 10 pounds frequently; sit about 6 hours in an 8 hour
workday; stand and or walk about 6 hours in an 8 hour workday; no
limitations pushing and/or pulling; frequent climbing of ladders, ropes
or scaffolds; frequent balancing, stooping, kneeling, crouching and
crawling; frequent, but not constant handling and fingering, bilaterally;
avoiding a concentrated exposure to the extremes of heat, cold,
wetness or humidity; avoiding a concentrated exposure to irritants
such as fumes, dusts, gases, or odors; avoiding dangerous machinery
or unprotected heights; and performing unskilled work with no strict
time standards or schedules, with occasional interaction with the
public or coworkers and no teamwork.

6.

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

7.

The claimant was born [in] 1960 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 at least a high school 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 (See SSR 82-41 and 20 CFR
Part 404, Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the national

The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. 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).
4

3

economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11.

The claimant has not been under a disability, as defined in the Social
Security Act, from January 1, 2008, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

PageID 57-73.
Thereafter, the Appeals Council denied review on October 6, 2015 making ALJ Status’s
non-disability finding the final administrative decision of the Commissioner.

PageID 45.

Plaintiff then filed this timely appeal of ALJ Status’s decision. 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

In her decision, ALJ Status set forth a detailed recitation of the underlying medical
evidence in this case. PageID 60-65. Plaintiff, in her Statement of Errors, also summarizes the
evidence of record. Doc. 10 at PageID 1410-12. The Commissioner, in response to Plaintiff’s
Statement of Errors, defers to ALJ’s recitation of the evidence and presents no objection to
Plaintiff’s summary.

Doc. 11 at PageID 1430.

Except as otherwise noted herein, the

undersigned incorporates the summary of evidence as set forth by ALJ and Plaintiff.
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 v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:

5

1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

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 disability 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 failed to properly: (1) weigh the
medical and other source opinion evidence of record; and (2) conduct an appropriate analysis at
Steps Two and Four regarding her impairments and RFC. Doc. 10 at PageID 1413-27.
A.

Opinion Evidence

In her first assignment of error, Plaintiff contends that the ALJ erred in weighing opinion
evidence, including opinions offered by treating physicians Robert Margolis, M.D. and Donald
L. Turner, D.O.; and treating mental health counselor John E. Hollings, Jr., M.A, M.S.5 PageID
861, 911-12, 922, 1252-53.

“[T]he Commissioner’s regulations establish a hierarchy of

Counselor Hollings, who has Master’s degrees, is not an “acceptable medical source” as that
term is defined in the regulations. See 20 C.F.R. § 404.1513(a). However, he does qualify as an “other
source” under the regulations and his opinion is relevant in showing the severity of Plaintiff’s
impairment. 20 C.F.R.
§ 1513(c). The factors an ALJ must consider in assessing “other source”
opinions is set forth infra.
5

6

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). In descending order, these medical source opinions are:
(1) treaters; (2) examiners; and (3) record reviewers. Id. Treaters are entitled to the greatest
deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture
of [a claimant’s] 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).
A treater’s opinion must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377,
384 (6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the 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.” Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).6
After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who
often see and examine claimants only once.” Snell, 2013 WL 372032, at *9. “The regulations
provide progressively more rigorous tests for weighing opinions as the ties between the source of
the opinion and the individual [claimant] become weaker.” Id. (citing SSR 96-6p, 1996 WL

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.
6

7

374180, at *2 (July 2, 1996)). Therefore, record reviewers are afforded the least deference and
these “‘non-examining physicians’ opinions are on the lowest rung of the hierarchy of medical
source opinions.” Id.
Unless the opinion of the treating source is entitled to controlling weight, an ALJ must
“evaluate all medical opinions” with regard to the factors set forth in 20 C.F.R. § 404.1527(c),
i.e., length of treatment history; consistency of the opinion with other evidence; supportability;
and specialty or expertise in the medical field related to the individual’s impairment(s). Walton
v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
In addition to “medical source opinions,” opinions from “other sources” can be used to
establish the severity of a claimant’s impairment and establish how impairments affect a
claimant’s ability to work. 20 C.F.R. § 404.1513(d). “Other sources” include medical sources
such as nurse practitioners or counselors who do not qualify as “acceptable medical sources”
under the regulations. Id. Although opinions from “other medical sources” who have treated a
claimant are not entitled to controlling weight like those of a treating physician or psychologist,
“other source” opinions may be entitled to more weight than “acceptable medical sources” under
the unique circumstances of a given case. SSR 06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006)
(emphasis added). In fact, the opinions of “other sources” may even be given more weight than
a treating physician if the “other sources” have seen the claimant more frequently than the
“acceptable sources” and have provided better explanations for their opinions. Id.
ALJs must weigh the opinions of “other sources” using the factors set forth in 20 C.F.R.
§ 404.1527(c), i.e., “how long the source has known the individual, how frequently the source
has seen the individual, how consistent the opinion of the source is with other evidence, how
well the source explains the opinion, and whether the source has a specialty or area of expertise

8

related to the individual’s impairment.” Williamson v. Comm’r of Soc. Sec., No. 1:14-cv-731,
2016 WL 255033, at *8 (S.D. Ohio Jan. 20, 2016); see also 20 C.F.R. § 404.1527(c).

ALJs

should “explain the weight given” such opinions, “or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to follow the
[ALJ’s] reasoning, when such opinions may have an effect on the outcome of the case.”
Williamson, at *8.
The undersigned specifically finds error in the ALJ’s analysis of Dr. Turner’s opinion.
See PageID 68. Dr. Turner found Plaintiff limited in her ability to use her hands; to bend, stoop,
or do any work that requires bending or twisting; and grasp items or perform repetitive hand
movements. PageID 922. In total, Dr. Turner concluded that Plaintiff was disabled. Id. The
ALJ gave Dr. Turner’s opinion “little weight.” PageID 68.
The Commissioner does not dispute that Dr. Turner is a treating physician. Doc. 11 at
PageID 1430-34. In weighing Dr. Turner’s opinion, however, the ALJ never discussed the
concept of “controlling weight” and never specifically declined to afford his opinion controlling
weight. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (stating that the
regulations are designed to “ensure[ ] that the ALJ applies the treating physician rule and permits
meaningful review of the ALJ’s application of the rule”). Such failure is error where the Court
cannot determine whether the ALJ undertook the “two-step inquiry” required when weighing
treating source opinions. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir.
2013); Chrismon v. Colvin, 531 F. App’x 893, 900 (10th Cir. 2013).
The only non-conclusory critique the ALJ provided of Dr. Turner’s opinion was that his
treatment notes consisted “primarily of checkmarks without observable clinical signs.” PageID
68. “Putting aside for the moment whether the ALJ had a proper basis for [her] conclusion” in

9

that regard, such “analysis does not explain to which aspect of the controlling-weight test this
critique is relevant.” Gayheart, 710 F.3d at 376-77. Typically, however, such critique is a factor
“properly applied only after the ALJ has determined that a treating-source opinion will not be
given controlling weight.” Id. at 376; see also 20 C.F.R. § 404.1527(c)(3) (stating that “[t]he
more a medical source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that opinion”). Accordingly, the
ALJ failed to follow the treating physician rule in assessing Dr. Turner’s opinion and, thus, such
assessment is unsupported by substantial evidence.
The ALJ’s error in this regard is exacerbated by the ALJ’s conclusory analysis of the
weight accorded the opinions of record-reviewing physicians R. Toro, M.D.; J. Ruiz, M.D.; H.
Kushner, M.D.; and Maria Congbalay, M.D.7 PageID 70. Although the ALJ gave the opinion of
each of these record reviewers “partial weight,” the ALJ’s analysis includes no more than a mere
recapitulation of their opinion without any further analysis -- and without specifically setting
forth what portion of those opinions the ALJ declined to adopt. Id.
Simply restating a medical source’s opinion -- and offering a conclusory assessment of
the weight given, without further discussion -- fails to satisfy the requirement that the ALJ
provide meaningful explanation regarding all medical opinion evidence of record. See 20 C.F.R.
§ 404.1527(c); see also Aytch v. Comm’r of Soc. Sec., No. 3:13-CV-135, 2014 WL 4080075, at
*5-6 (S.D. Ohio Aug. 19, 2014), report and recommendation adopted sub nom. Aytch v. Comm’r
of Soc. Sec., No. 3:13-CV-135, 2014 WL 4443286 (S.D. Ohio Sept. 8, 2014) (citing Chavez v.
Astrue, No. 12-cv-00627-LTB, 2012 WL 5250396, at *7 (D. Colo. Oct. 24, 2012)) (finding the
ALJ’s explanation “lacking” where the ALJ merely “recapitulated” the reasons stated by the
medical expert for disagreeing with the opinion of a treating physician and failed to “provide his
7

The record reveals only the first initial for Drs. Toro, Ruiz and Kushner.
10

reasons for according [the] opinion the...weight he did”). Accordingly, the ALJ’s assessment of
the record reviewers’ opinions is unsupported by substantial evidence.
Based upon all of the foregoing, the undersigned concludes that the ALJ failed to
appropriately weigh the opinions of Drs. Turner, Toro, Ruiz, Kushner, and Congbalay. Based
upon such conclusion, the Court need not reach the issue of whether the ALJ also erred in
assessing the opinions of Dr. Margolis and Counselor Hollings. Nevertheless, on remand, the
ALJ should reassess the weight accorded to all opinion evidence of record.
B.

Determination of Medically Determinable Impairments

With regard to the ALJ’s alleged error at Steps Two and Four, Plaintiff contends that the
ALJ failed to sufficiently explain, at Step Two, whether a number of her impairments were
medically determinable and -- for those that were found to be medically determinable, but
otherwise non-severe -- to consider those impairments when assessing Plaintiff’s RFC at Step
Four. Doc. 10 at PageID 1423-27.
At Step Two of the evaluation process the ALJ must consider whether a claimant’s
impairment constitutes a “medically determinable impairment,” i.e., an impairment that results
from anatomical, physiological, or psychological abnormalities, which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.

See 20 C.F.R.

§§ 404.1505, 404.1508, 404.1520(a)(4)(ii) and 404.1527(a)(1). If an alleged impairment is not
medically determinable, an ALJ need not consider that impairment in assessing the RFC. See
Rouse v. Comm’r of Soc. Sec., No. 2:16-CV-0223, 2017 WL 163384, at *4 (S.D. Ohio Jan. 17,
2017) (stating that a “claimed condition which is not ‘medically determinable’ need not be
considered at all” in determining a claimant’s RFC); 20 C.F.R. §§ 404.1527(a)(1), 20 C.F.R.
§ 404.1545(a)(2).

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If an impairment is medically determinable, an ALJ must next decide whether that
impairment is severe or non-severe.

See 20 C.F.R. § 404.1520(a)(4)(ii).

If all medially

determinable impairments are non-severe, the ALJ’s analysis ends and Plaintiff is not disabled.
See 20 C.F.R. § 404.1520(c). If, however, the ALJ determines that Plaintiff has one or more
severe impairments at Step Two, the ALJ must then consider the limiting effects of all
impairments, severe and non-severe, when determining Plaintiff’s RFC at Step Four. See 20
C.F.R. § 1523; White v. Comm’r of Soc. Sec., 312 F. App’x 779, 787 (6th Cir. 2009) (holding
that, “[o]nce one severe impairment is found, the combined effect of all impairments must be
considered, even if other impairments would not be severe”); see also Johnson v. Colvin, No.
3:13cv301, 2014 WL 6603376, at *7-8 (S.D. Ohio Nov. 19, 2014). If an ALJ considers the
limiting effects of both severe and non-severe impairments in determining the RFC, any error in
failing to find a particular impairment severe is harmless. White, 312 F. App’x at 787.
In this case, the ALJ found at Step Two that Plaintiff suffered from numerous severe
impairments. See PageID 59-60. The ALJ also found that:
In addition to her medically determinable, severe impairments, the
claimant has alleged, and her treatment records disclose, several diagnoses
which the undersigned finds are not medically determinable impairments,
or that are nonsevere, to wit: a history of Wolf[f]-Parkinson White
syndrome, Epstein Barr, hepatitis C, tinea maims, hypothyroidism,
lymphadema, essential hypertension, mononeuritis, “conduction disorder
of the heart,” irritable bowel syndrome [“IBS”], stenosis of rectum and
anus, rheumatoid arthritis, degenerative joint disease of multiple joints,
osteoarthritis of knee, arthropathy, displacement of cervical intervertebral
disc, fibromyositis, sleep apnea, and amnesia.
PageID 62. Unfortunately, as conceded by the Commissioner on appeal, see Doc. 11 at PageID
1437, the ALJ never continued her analysis to distinguish which of these alleged impairments
were not medically determinable, and which were medically determinable but otherwise nonsevere. Id. Such failure can be error. See Rouse, supra (finding error, albeit harmless error);

12

Weitzel v. Colvin, 967 F. Supp. 2d 1089, 1097 (M.D. Pa. 2013) (holding that the ALJ’s “failure .
. . to find the above noted conditions as medically determinable impairments, or to give an
adequate explanation for discounting them, makes his decisions at [S]teps [T]wo and [F]our of
the sequential evaluation process defective”).
However, as set forth above, any error at Step Two is harmless if the ALJ considers all
impairments in determining Plaintiff’s RFC. White v. Comm’r of Soc. Sec., 312 F. App’x 779,
787 (6th Cir. 2009). Finding remand appropriate to reassess medical source opinions of record,
the undersigned makes no finding as to whether the ALJ erred in this regard, or whether such
error is harmless. Instead, on remand, the ALJ should reassess the evidence of record, explain
which impairments are medically determinable, which medically determinable impairments are
non-severe and which are severe, and consider all severe and non-severe impairments in
assessing Plaintiff’s RFC.
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 award benefits where proof of disability 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).

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Here, evidence of disability is not overwhelming and therefore, remand under Sentence
Four for further proceedings is proper so that the ALJ can hold another administrative hearing
and assess all opinion evidence of record anew in light of the foregoing findings.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

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.

Date:

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

This case be CLOSED.

February 10, 2017

s/ Michael J. Newman
Michael J. Newman
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 Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed 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 noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
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).