Collins v. Commissioner of Social Security Administration

Filing 12

REPORT AND RECOMMENDATIONS: 1) The Commissioner's non-disability finding be vacated; 2) No finding be made as to whether Plaintiff Percy Collins, Jr. was under a "disability" within the meaning of the Social Security Act; 3) This case be remanded to the Social Security Administration for further consideration; and 4) The case be terminated on the docket of this Court. Objections to R&R due by 2/7/2017. Signed by Magistrate Judge Sharon L. Ovington on 1/24/17. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PERCY COLLINS, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner Of The Social
Security Administration,
Defendant.

:
:
:
: Case No. 3:16cv00074
:
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Percy Collins, Jr. brings this case challenging the Social Security

Administration’s denial of his application for Supplemental Security Income. Plaintiff
applied for benefits due to his health problems, including a stroke he might have suffered,
multiple sclerosis, degenerative disk disease in his spine, and depression. He asserted
that his health problems constituted one or more disabilities beginning on April 29, 2013,
thus triggering his eligibility for benefits. The Administration’s decision to deny his
application was made in November 2014 by Administrative Law Judge (ALJ) Gregory G.
Kenyon, who determined that Plaintiff was “not disabled” within the meaning of the
Social Security Act. (Doc. #6, PageID#s 69-82).

1

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

Plaintiff brings the present case challenging ALJ Kenyon’s decision. The case is
before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the Commissioner’s
Brief (Doc. #10), Plaintiff’s Reply (Doc #11), the administrative record (Doc. #6), and
the record as a whole.
II.

Plaintiff’s Vocational Profile and Testimony
Plaintiff was forty-eight years old on the date he filed his application for benefits.

This placed him the category of a younger person under Social Security Regulations. See
20 C.F.R. § 416.963(c). ALJ Kenyon concluded that Plaintiff has at least a high school
education. In the past, he worked as a forklift operator, a parking attendant, and a sewermaintenance worker.
Plaintiff testified at his administrative hearing before ALJ Kenyon, in August
2014, that he was not married and had eight children. His children do not live with him.
Plaintiff testified that he had a stroke in April 2013. The continuing effects from
the stroke involve left-side weakness that prevents him from lifting his left foot. He
noted, “I have to drag it.” (Doc. #6, PageID #95). He also has difficulty when he grabs
something with his left hand—he does not know when he releases it. For example, when
he picks up clothes and walks with them, his left hand will release and he drops them.
Soon there are “clothes all over the place.” Id. at 96. He also drops coffee cups and
plates. He can’t smoke indoors because he “burnt the carpet up.” Id. The stroke also left
him with difficulty hearing and memory problems. If he does not write down things he
needs to remember, he will forget within two or three days.

2

Plaintiff described the effects of multiple sclerosis to constant fatigue, making it
difficult for him to get out of his bed when he wakes up. If he needs to use the bathroom
and can’t immediately get up, he will roll onto the floor, then crawl to the bathroom. Id.
at 97. About three times during the day, he lies down for thirty to forty minutes.
Sometimes he falls asleep while lying down. Multiple sclerosis also makes his neck and
back sensitive to heat from the sun. Id. at 98. His neck is so sensitive that he can’t wear
any jewelry. His sensitivity also prevents him from wearing earrings and sometimes
requires him to take off his glasses. He also explained, “if I put a hat on, it seems like …
I’ve got something on my neck that’s choking me.” Id. He takes Avonex1 to treat his
multiple sclerosis; it has helped him do certain things—like go to sleep—that he could
not do previously do. Yet, Avonex causes him headaches three or four times a week. Id.
at 102-03.
Plaintiff testified that he’s had low-back pain since 2005 or 2006. The pain
extends to his legs. It is a sharp pain that feels like he’s being stuck with a pin.
Sometimes it is an aching pain. Every now and then the intensity of this pain will reach
the level of ten, on a scale of zero (least pain) to ten (most pain). When his pain
moderates, it is “like an eight, constant.” Id. at 99. He takes Vicodin for pain; it helps a
little. He has trouble bending at the waist. If he bends over, it seems to him that he gets
stuck. He then needs to push with his hands to return to a straight position. Id. at 104.

1

“Avonex is approved by the U.S. Food and Drug Administration (FDA) for the treatment of patients
with relapsing forms of MS to slow the accumulation of physical disability and decrease the frequency of
clinical exacerbations.” http:www.nationalmssociety.org/Treating-MS/Medications/Avonex

3

As to Plaintiff’s other physical abilities and limits, he can lift up to ten pounds on
a good day, but can’t lift any weight on a bad day. He can stand for up to 10 minutes and
maybe walk a couple of blocks. He has difficulty climbing stairs but not descending.
Plaintiff further testified that he had developed depression. He cannot do a lot of
things with his two small children; this depresses him. At times during the administrative
hearing, Plaintiff became upset and started to cry. He cries when he is home, if he thinks
about the things he cannot do.
III.

Medical Opinions
A.

Treatment Records

Hospital records show that Plaintiff went to the emergency room in April 2013
with left-arm numbness and pain, left-hand numbness, and leg numbness. (Doc. #6,
PageID #314, 324. 326). His gait was ataxic (evidencing “defective muscle
coordination”2), “regarding his left foot unable to walk on heel without listing to one
side.” Id. at 324. He was able to walk only on the tiptoes of his left foot. Id. at 326. He
obtained some relief from left-arm pain by lifting his left arm above his head. Id. CT
scans of Plaintiff’s head and cervical spine showed no abnormalities. Id. at 317. But, an
MRI of his cervical spine showed early demyelinating changes with no evidence of a
cerebral infarct. Id. at 334. An MRI of the lumbar spine revealed discogenic changes
most notable at L3-4 and L4-5 with broad-based circumferential disc bulge encroaching
on the exiting nerve roots, likely encroaching on the L3 and L4 nerve roots bilaterally. Id.
at 344.
2

Taber’s Cyclopedic Medical Dictionary, p. 182 (19th Ed. 2001).

4

On July 2, 2013, Plaintiff met with neurologist Nina Bradley, D.O. Id. at 487-88.
Dr. Bradley’s physical examination revealed left-foot drop, left-arm pain, back pain and
numbness, and neck pain. Plaintiff reported a shooting and tingling sensation down his
arm along with left-sided numbness, weakness, and tingling. A motor exam was 4+/5 on
the left-upper extremity and 3/5 on the left-lower extremity. He also had decreased
sensation to pinprick and light touch in the deltoid region. He was unable to walk in a
straight line. Id.
Dr. Bradley’s diagnostic impression was “[l]eft hemiparesis and sensory change,
likely secondary to demyelinating disease, specifically a relapsing form of multiple
sclerosis.” Id. at 488. Dr. Bradley’s progress notes in late July 2013 indicate that she
spoke with Plaintiff about the results of a lumbar puncture as looking “more like
demyelinating disease….” Id. at 480.
Progress notes written by Abdul Shahid, MD, at a pain clinic in November 2013
state that Plaintiff’s multiple sclerosis was stable at that time. He was receiving
Interferon therapy, referring to his treatment with Avonex. Id. at 446. Plaintiff reported
chronic pain in his neck, lower back, and bilateral knees. He further reported that he was
unable to walk up and down stairs, bend down to pick things up, and stand or walk for a
long distance. He rated his pain level at eight out of ten and described the pain as aching,
burning, and constant, with numbness. His pain worsened with bending and using his
arms or legs, and his pain improved with resting or taking medications. Id. Dr. Shahid’s
physical examination showed that Plaintiff had limited flexion, extension, and rotation of
the lumbar spine along with a painful response to deep palpation. Id. at 447.
5

Dr.

Shahid diagnosed Plaintiff with lumbar degenerative disc disease and thoracic/lumbar
radiculitis. Id.
Treatment notes from June 2014 indicated that Plaintiff’s “brain images are not
particularly impressive.” Id. at 502. The notes report that a past MRI of Plaintiff’s
cervical spine revealed an episode of transverse myelitis. Id. The notes continue, “It was
possible that these lesions represented idiopathic transverse myelitis rather than true
multiple sclerosis.” Id.
However, just one month later—in late July 2014—an MRI of Plaintiff’s brain
demonstrated a stable appearance of previously documented white matter
changes, consistent with his history of multiple sclerosis. Id. at 621-22.
In September 2014, an EMG of Plaintiff’s upper extremities was “abnormal …
with evidence of a primarily demyelinating mononeuropathy of the ulnar nerve across the
elbow bilaterally….” Id at 626.
B.

Dr. Bradley’s Opinions

Dr. Bradley provided her opinions on two occasions. The first occurred in August
2013 by way of a Basic Medical form she completed. Id. at 532-33. Dr. Bradley
identified Plaintiff’s medical conditions to include relapsing remitting multiple sclerosis.
She noted that the onset of his MS symptoms occurred in 2013, and his treatment for MS
began with Avonex in October 2013. She believed his prognosis was good. She
explained, “In the case of exacerbation …,” he may require three to five days of
intravenous steroids. Id. at 532.

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On exam by Dr. Bradley, Plaintiff “has sensory changes on left upper & lower
extremity. Mild weakness of left upper & lower extremity. Minimal gain instability.” Id.
Dr. Bradley opined that Plaintiff was moderately limited in his ability to push or pull,
reach, handle, or perform repetitive foot movements. Id. at 532 And, Dr. Bradley
explained that during an MS exacerbation, he “may have worsening arm or leg weakness.
Usually with Treatment (i.e., IV steroids) these symptom will resolve in 1-2 weeks.
Currently, [he] has upper extremity paresthesis, and left side weakness.” Id.
Dr. Bradley provided her second set of opinions in February 2014 in a form that
asked her to provide her medical assessment of Plaintiff’s ability to do work-related
activities. Id. at 450-54. Dr. Bradley opined that Plaintiff could not lift more than ten
pounds due to his left-side “weakness/numbness [with] MRI of the cervical spine lesion.”
Id. at 450-51. She thought Plaintiff could stand and walk up to two hours out of an eighthour workday and for 30 minutes without interruption. He could sit for eight hours
during a workday. Dr. Bradley observed that Collins could perform sedentary work but
would be absent from work on average about twice a month because of his impairments
or treatment. Id. at 454.
C.

Dr. Oza’s Opinions

Amita Oza, MD, examined Plaintiff in July 2013 at the request of the State
agency. (Doc. #6, PageID #s 437-39). Plaintiff reported to Dr. Oza that his left side was
“functioning at 70% of his right side.” Id. at 437. He also told Dr. Oza that he could do
things with his left hand but could drop things at any time. Id. He also described back
pain for many years, which came and went but usually lasted for two to three days with

7

radiation behind both his thighs. Id. His pain worsened when he sat or stood for more
than forty minutes or walked for more than one hour. Id. at 437.
On physical examination, Plaintiff’s grip strength was slightly diminished on the
left side compared to the right side. Id. at 438. Dr. Oza estimated Plaintiff’s muscle
power at “5 on the right side and 4+ to 5 on the left but there was a distinct difference.”
Id. Dr. Oza observed a slight rigidity in Plaintiff’s left lower extremity, and he walked
with slight dragging of his left foot. The range of motion in Plaintiff’s joints was normal.
“Reflexes were 1+ on the right and 2+ on the left.” Id. There was tenderness on
palpation of Plaintiff’s dorsolumbar spine. Id.
Dr. Oza concluded that “signs are suggestive of right-sided CVA [cerebral
vascular accident, i.e., stroke] with residual left-sided weakness,” but tests so far had
been negative. Id. at 439. Dr. Oza recognized that Plaintiff had back pain and an MRI
abnormality of disk bulge at L4-L5 level bilaterally. Id. Clinically, there was no
neurosensory deficit. Id. In the end, Dr. Oza wrote, “Based on my findings today due to
above mentioned problems, work-related activity seems to be affected at this time,
though he continues to use his money for marijuana, drinking, and smoking.” Id.
IV.

The Social Security Act and ALJ Kenyon’s Decision
The Social Security Administration provides Supplemental Security Income to

indigent individuals, subject to several eligibility requirements. Chief among these is the
disability requirement. To receive Supplemental Security Income, an applicant must be a
“disabled individual.” 42 U.S.C. § 1381a; see Bowen v. City of New York, 476 U.S. 467,
470 (1986). A “disabled individual”—as defined by the Social Security Act—is someone
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living with a medically determinable physical or mental impairment severe enough to
prevent them from engaging in substantial gainful activity. 42 U.S.C. § 1382c(a)(3)(A);
see Bowen, 476 U.S. at 469-70.
ALJ Kenyon reviewed the evidence under the five-step sequential evaluation
procedure mandated by Regulation. 20 C.F.R. § 416.920(a)(4). His more pertinent
findings began at step two where he found that Plaintiff had the severe impairments of
multiple sclerosis, lumbosacral degenerative disc disease, depression, and a history of
cannabis abuse. (Doc. #6, PageID #71). The ALJ further found, “Not only does the
objective, medical evidence fail to establish that the claimant had a stroke, but there is
insufficient evidence to consider post-stroke residual effects as a severe impairment….
[I]t is more likely that the claimant’s complaints of weakness are attributable to multiple
sclerosis or transverse myelitis….” Id. at 72.
At step three, the ALJ found that Plaintiff’s impairments did not meet or medically
equal the criteria of one in the Listings, 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at
72-74. At step four, the ALJ assessed Plaintiff’s Residual Functional Capacity or the
most he could do despite his impairments. See Howard v. Comm’r of Soc. Sec., 276 F.3d
235, 239 (6th Cir. 2002). He found that Plaintiff could perform sedentary work subject to
twelve limitations:
(1) occasional 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) no driving of automotive
equipment; (5) occasional use of the lower extremities for pushing,
pulling, and operating foot controls; (6) frequent use of the left upper
extremity for reaching, handling, and fingering; (7) no concentrated
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exposure to extreme heat; (8) limited to performing unskilled,
simple, repetitive tasks; (9) occasional contact with coworkers,
supervisors, and the public; (10) no fast paced production work or
strict production quotas; (11) 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; and (12) no occupational exposure to drugs or alcohol.
(Doc. #6, PageID #74). Also at step four, ALJ Kenyon found that Plaintiff had no past
relevant work experience.
At step five, the ALJ concluded that—considering Plaintiff’s age, education, work
experience, and residual functional capacity—he is capable of making the adjustment to
work that exists in significant numbers in the regional and national economy, including
document preparer, circuit board assembly screener, and stuffer. Id. at 82. In this
manner, ALJ Kenyon found, as noted previously, that Plaintiff was not under a benefitsqualifying disability.
V.

Standard of Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);
see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial-evidence
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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.
VI.

Discussion
Plaintiff contends that the ALJ failed to comply with the Regulations applicable to

his evaluation of the opinions provided by Dr. Bradley, his treating neurologist. Plaintiff
raises three main points: (1) the record contains no medical-source opinion contrary to
Dr. Bradley’s; (2) the ALJ failed to conduct the two–step evaluation procedure mandated
by the Regulations; and (3) the ALJ erred by essentially disagreeing with Dr. Bradley
based on his (the ALJ’s) own lay medical opinions. These errors, according to Plaintiff,
were not harmless.
The Commissioner argues that the ALJ reasonably evaluated Dr. Bradley’s
opinions mainly because treating sources’ opinions are never binding on an ALJ, because
the ALJ did not substitute his own lay opinions in place of Dr. Bradley’s, and because the
record supports the numerous good reasons the ALJ provided for discounting Dr.
Bradley’s opinions.
Social Security Regulations recognize several different types of medical sources:
treating physicians and psychologists, nontreating yet examining physicians and
psychologists, and nontreating/record-reviewing physicians and psychologists. Gayheart
v. Comm’r Social Sec., 710 F.3d 365, 375 (6th Cir. 2013). Opinions provided by treating
physicians and psychologists are given controlling weight under the treating physician
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rule if two conditions are met: (1) the opinion is “well supported by medically acceptable
clinical and laboratory diagnostic techniques”; and (2) the opinion “is not inconsistent
with other substantial evidence in [a claimant’s] case record.” Id. at 376 (citation
omitted). “Even when not controlling, however, the ALJ must consider certain factors,
including the length, frequency, nature, and extent of the treatment relationship; the
supportability of the physician’s conclusions; the specialization of the physician; and any
other relevant factors. In all cases, the treating physician's opinion is entitled to great
deference even if not controlling. The failure to comply with the agency’s rules warrants
a remand unless it is harmless error.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723
(6th Cir. 2014) (citations omitted).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions by stating “specific reasons for the weight
placed on a treating source’s medical opinions.” Wilson v. Comm’r of Soc. Sec, 378 F.3d
541, 544 (6th Cir. 2004 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188 at *5 (1996)).
The goal is to make clear to any subsequent reviewer the weight given and the reasons for
that weight. Id.
In the present case, ALJ Kenyon placed “some weight on the opinions provided by
Dr. Bradley, to the extent that they support the above-described reduced range of
sedentary work …,” referring to his assessment of Plaintiff’s residual functional capacity
for a reduced range of sedentary work. (Doc. #6, PageID #79). The ALJ continued:
However, Dr. Bradley also opined that the claimant would be
absent from work twice per month and could only lift five pounds on
a frequent basis. The objective medical evidence provides no basis
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for this conclusion, and therefore, little weight is given to this
portion of Dr. Bradley’s assessment.
Id.
The first problem with the ALJ’s evaluation of Dr. Bradley’s opinion is that he
did not first consider whether her opinion was entitled to controlling weight under the
threating physician rule. Indeed, after setting forth the correct legal criteria for the
treating physician rule, the ALJ provided no indication that he evaluated Dr.
Bradley’s opinions under that legal criteria. See id. Instead, the ALJ first assessed
Plaintiff’s residual functional capacity at step four of the sequential evaluation, then
measured Dr. Bradley’s opinions against his assessment of Plaintiff’s residual
functional capacity. This constituted error. Nothing in the Regulation, 20 C.F.R. §
416.927(c), used for evaluating medical source opinions supports this analytical
approach. Instead, it describes the opposite: “We use medical sources, including
your treating source, to provide evidence, including opinions, on the nature and
severity of your impairment(s). Although we consider opinions from medical sources
on issues such as…, your residual functional capacity…, the final decision for
deciding such issue[] is reserved to the Commissioner.” 20 C.F.R. § 416.927(d)(2).
Similarly, the Regulations elsewhere explain that the ALJ’s assessment of residual
functional capacity is based on “all of the relevant medical and other evidence….” 20
C.F.R. § 416.945(a)(3). The Commissioner’s pertinent Rulings likewise describe the
role medical source opinions and other medical evidence plays in determining a
claimant’s Residual Functional Capacity. Social Security Ruling 96-8p requires

13

ALJs to assess residual functional capacity “based on all of the relevant evidence in
the case records …,” including, in part, “medical source statements.” Soc. Sec. R. 968p, 1996 WL 374184, *5 (July 2, 1996). The Ruling that instructs ALJs how to weigh
treating sources’ medical opinions neither instructs nor hints that the Residual
Functional Capacity informs the analysis of treating-source opinions. See Soc. Sec.
R. 96-2p, 1996 WL 374188 (July 2, 1996).
These Rulings together with the Regulations instruct ALJs to weigh medicalsource opinions and then assess—in light of the assigned weight—the claimant’s
Residual Functional Capacity. ALJ Kenyon took the opposite and erroneous
analytical path by first assessing Plaintiff’s residual functional capacity, then
comparing Dr. Bradley’s opinions to that assessment.
The ALJ also placed “little weight” on the opinions Dr. Bradley expressed in
the Basic Medical form she completed in August 2013. (Doc. #6, PageID # 80).
After describing Dr. Bradley’s opinions, the ALJ reasoned:
The conservative level of treatment the claimant has received to
date is not consistent with an inability to perform any work. Further,
Dr. Bradley’s assessment, which included only postural limitations, is
not consistent with an opinion that the claimant can perform no work
activity.
Id. These reasons, plus the ALJ’s previously quoted reasons, for placing little weight
on Dr. Bradley’s opinion fail to consider the intermittent nature of Plaintiff’s
multiple-sclerosis symptoms. The Social Security Administration’s Program
Operations Manual System recognizes, “Most cases of MS involve intermittent
periods of symptoms and signs (exacerbation) followed by a period of improvement
14

(remission). Exacerbations vary in frequency, duration, character and severity.
Remissions similarly vary in duration and the extent of improvement.”
http://policy.ssa.gov/poms.nsf/lnx/0424580015. More significantly for the present
case, Dr. Bradley based her opinions on this type of intermittent symptomatology.
She explained in the August 2013 Basic Medical form:
During an MS exacerbation patient may have worsening arm or
leg weakness. Usually with Treatment (i.e., IV steroids) these symptoms
will resolve in 1-2 weeks. Currently, [he] has upper extremity paresthesis,
and left side weakness.

(Doc. #6, PageID #532). The ALJ overlooked or ignored this explanation when
evaluating Dr. Bradley’s opinions. This allowed him to discount her for the reasons that
Plaintiff was conservatively treated and that Dr. Bradley only assigned him postural
limitations. Yet, there is nothing inconsistent between Dr. Bradley’s opinions that
Plaintiff cannot work and the conservative treatment he received during periods of
remission and only having postural limitations. Indeed, the postural limitations Dr.
Bradley identified and the conservative treatment the ALJ referenced say nothing
probative about Plaintiff’s work limitations during periods of exacerbation. Substantial
evidence therefore fails to support the ALJ’s reasons for discounting Dr. Bradley’s
August 2013 opinions. See Wilcox v. Sullivan, 917 F.2d 272, 277 (6th Cir. 1990) (“[I]n
evaluating multiple sclerosis, or any other episodic disease, consideration should be given
to the frequency and duration of the exacerbations, the length of the remissions, and the
evidence of any permanent disabilities.” (citing SSA Pub. 68–0424500, Neurological §
24580.015 Evaluation of Multiple Sclerosis (1988)).

15

The ALJ also failed to recognize that the record contains no treating or examining
opinions that contradict or conflict with Dr. Bradley’s opinion. In his assessment of
Plaintiff’s Residual Functional Capacity, the ALJ relied on some aspects of the opinions
provided by two record-reviewing physicians in July and September 2013, respectively.
Doing so, however, the ALJ did not weigh their opinions under any of the factors, as
mandated by the Regulations. This constituted error. See 20 C.F.R. § 416.927(e); see
also Soc. Sec. R. 96-6p, 1996 WL 374180, *2 (July 2, 1996).
Next, even if the ALJ correctly determined that Dr. Bradley’s opinions were not
entitled to controlling weight, his decision does not reflect that he continued to weigh Dr.
Bradley’s opinions under the remaining factors mandated by law. See 20 C.F.R. §
416.927(c); see also Soc. Sec. R. 96–2p, 1996 WL 374188 at *3-*4; Gayheart, 710 F.3d
at 375–76. “[I]n all cases there remains a presumption, albeit a rebuttable one, that the
opinion of a treating physician is entitled to great deference, its non-controlling status
nothwithstanding.” Rogers, 486 F.3d at 242.
Accordingly, Plaintiff’s Statement of Errors is well taken.3
VII.

Remand
Remand is warranted 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 for an ALJ’s failure to follow the regulations

3

In light of the above discussion, and the resulting need to remand this case, discussion of the parties’
contentions about the ALJ’s credibility findings is unwarranted.

16

might arise, for example, when the ALJ failed to provide “good reasons” for rejecting a
treating medical source’s opinions, see Wilson, 378 F.3d at 545-47; failed to consider
certain evidence, such as a treating source’s opinions, see Bowen, 478 F3d at 747-50;
failed to consider the combined effect of the plaintiff's impairments, see Gentry, 741 F.3d
at 725-26; or failed to provide specific reasons supported by substantial evidence for
finding the plaintiff’s credibility lacking, 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 “only where the evidence of disability is
overwhelming or where the evidence of disability is strong while contrary evidence is
lacking.” Felisky, 35 F.3d at 1041 (6th Cir. 1994) (quoting Faucher v. Sec'y of Health &
Humans Servs., 17 F.3d 171, 176 (6th Cir. 1994)).
A remand for an award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and because the evidence of disability is not
strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is
entitled to an Order remanding this matter to the Social Security Administration pursuant
to sentence four of §405(g) due to problems set forth above. On remand the ALJ should
be directed to review Plaintiff’s disability claim to determine anew whether he was under
a benefits-qualifying disability under the applicable five-step sequential evaluation
17

procedure, including, at a minimum, a re-assessment of his residual functional capacity
and a re-consideration of the evidence at steps three, four, and five of the sequential
evaluation.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Percy Collins, Jr. was under a
“disability” within the meaning of the Social Security Act;

3.

This case 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

4.

The case be terminated on the docket of this Court.

January 24, 2017

s/Sharon L. Ovington
Sharon L. Ovington
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. 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 Recommendations are 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 United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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