Aytch v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Everett Aytch was under a "disability" within the meaning of the Social Security Act; this matter be REMANDED to the Social Security Administration for further consideration; and the case be terminated on the Court's docket. Objections to R&R due by 8/8/2017. Signed by Magistrate Judge Sharon L. Ovington on 7/25/2017. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
EVERETT AYTCH,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-143
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Everett Aytch brings this case challenging the Social Security

Administration’s denial of his applications for period of disability, Disability Insurance
Benefits, and Supplemental Security Income. He applied for benefits on February 17,
2009, asserting that he could no longer work a substantial paid job. On July 29, 2011,
Administrative Law Judge (ALJ) Robert Iafe found that he was not under a “disability”
as defined in the Social Security Act.
The Appeals Council denied Plaintiff’s request for review, and he filed a previous
action in United States District Court for the Southern District of Ohio. See Aytch v.
Commissioner of Social Security, 3:13-cv-135, 2014 WL 4443286 (S.D. Ohio Sept.8,

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

2014) (D.J. Rice). The Court reversed the Commissioner’s decision and remanded the
case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative
proceedings. Id. at *2. On December 18, 2015, ALJ Eric Anschuetz concluded Plaintiff
was not eligible for benefits because he is not under a “disability” as defined in the Social
Security Act.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #9), the
Commissioner’s Memorandum in Opposition (Doc. #12), and the administrative record
(Doc. #s 6-7).
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Anschuetz’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since December 31, 2000.

He was twenty-eight years old at that time and was therefore considered a “younger
person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c).
He has a high school education. See 20 C.F.R. §§ 404.1564(b)(2), 416.964(b)(2).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Anschuetz that his disability began on
December 31, 2000 when he “started having these major, major flare-ups …” where he
could not move. (Doc. #7, PageID #1081). “[M]y whole body just, like, locked up on
me. Swelling in both legs and feet. Upper body pain. Joint pain. Went to the
emergency room, and they tried several different kinds of medications to try to ease the
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pain, and stop the swelling. And I had to learn how to use my joints and stuff all over —
my leg stuff all over again” Id. After a few months, Plaintiff attempted to go to work at
a tax preparation service but only stayed four months. Id. at 1082.
In 2007, Plaintiff worked part-time as a security guard. Id. While at work one
day, his whole body locked up and he was unable to move. Id. He could not walk to his
car and had to be carried. Id. His co-workers drove him home, he collapsed as he tried to
get out of the car, and they drove him to Miami Valley Hospital. Id. at 1082-83.
From 2004 to 2008, Plaintiff worked in customer service for Global Reader
Services. Id. at 1083. He had to get up from his desk every five to ten minutes because
his joints would start to lock up, his legs would start burning and tingling, and his groin
area would go numb. Id. at 1083, 1104. He was let go because “they [were] tired of me
coming to work, not being able to move, not being able to sit stationary and do the job.”
Id. at 1083. After losing his job, he lost his house as well. Id. at 1084.
In February 2014, Plaintiff worked as a server at Red Lobster. Id. at 1085. He
worked for approximately three months until he had surgery. Id. After surgery, he
returned to Red Lobster but only lasted a little over one month. Id. at 1084. During the
same time period he worked part time at Burger King. Id. at 1085-86.
In early 2015, E.C. Staffing employed Plaintiff part time for a month and a half as
a houseman. Id. at 1078. He was responsible for trash pickup and pushing a linen cart.
Id. at 1079. He usually worked twenty-four hours per week. Id. He stopped working
because “my feet and stuff started swelling back up. I started having issues doing the job.

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And they wasn’t going to increase the hours at all.” Id. at 1080. He looked for a new job
doing office work but was unable to find one. Id.
Plaintiff has not had a full body flare-up recently, “but I still do have flare-ups
where I can wake up, and try to get out [of] the bed, and have to lean on []the bed, my
dresser, the wall of the bathroom, my sink. When I sit down to use the bathroom, [and]
try to get up, I [have] to put my elbow across the sink, and lift myself up with the top of
the toilet ….” Id. at 1107. He experiences these ten to fifteen times per month. Id.
Plaintiff has had some difficulty with his health insurance. He used to see Dr.
Sullivan for his foot problems but his insurance will not cover appointments until he
meets his deductible. Id. at 1092. He then began treatment at Ohio Southwest. Id.
Unfortunately, he is “in collections with them ….” Id. As a result, he does not have a
podiatrist. Id.
Plaintiff has difficulty with his hands cramping and locking up. Id. at 1106.
When he uses a computer, they start to go numb and burn. Id. He used to type 120
words per minute but now can only type 29. Id.
Plaintiff takes Allopurinol, Norvasc, and aspirin regularly. Id. at 1093. He tried to
take medication for pain but it gave him “a psychotic nightmare.” Id. Before his surgery,
a doctor in an emergency room prescribed a cane. Id. at 1097. He uses it three or four
days per week. Id. at 1098. He also elevates his feet for a “majority of the day” and uses
ice and heat. Id.
Plaintiff lives in a house with his wife and son. Id. at 1098-99. He does not have
a driver’s license. Id. at 1099-1100. He estimated that he can lift and carry ten pounds
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and walk a block and a half. Id. at 1100. When he gets tired of sitting in bed, he
sometimes tries to walk to stretch his joints. Id. On an average day, Plaintiff gets up at
six or seven o’clock and goes to bed between nine and eleven o’clock. Id. at 1101.
During the day he spends about an hour on his computer, reading and e-mailing. Id. He
does some chores such as wiping the window in the bathroom, laundry, and dishes. Id. at
1102.
B.

Dr. Alex’s Testimony

Dr. Maurice Alex, a medical expert, testified at the first hearing on May 9, 2011.
(Doc. #6, PageID #67). He first asked Plaintiff a few questions. He asked why Plaintiff
did not receive medical treatment between 2002 and 2006. Id. at 78-79. Plaintiff
explained that he could not afford it so he went to the emergency room instead because
part of his bills was covered by “hospital insurance.” Id. Dr. Alex asked if any doctor
had advised him to lose weight or be on a very strict diet, and Plaintiff responded that he
was on a diet but no doctor had told him that he needed to lose between seventy-five and
one-hundred pounds. Id. at 79-80.
Dr. Alex testified that Plaintiff did not meet Listing 1.04 Disorders of the Spine;
4.04 Ischemic Heart Disease; 12.04 Affective Disorders; 14.092 Inflammatory arthritis; or
1.02(A) Major Dysfunction of a Joint(s)–involvement of one major peripheral weightbearing joint, resulting in inability to ambulate effectively. Id. at 80-81.

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The transcript indicates that Dr. Alex said “14.08” and then discussed rheumatoid arthritis. Because
Listing 14.08 addresses a human immunodeficiency virus (HIV) infection, it is likely that he was
referring to Listing 14.09.

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He further explained that although Plaintiff had gone to the emergency room
several times for gout flare-ups, x-rays of his joints are always negative. Id. at 81.
Further, when he ran out of medication and was hospitalized, he responded rapidly to the
medication given by the hospital and his symptoms disappeared. Id. Dr. Alex
emphasized that the records indicate “pain is out of proportion to physical exam…. [and]
symptoms are out of proportion to findings.” Id. at 81-82 (citations omitted). Despite
this, he opined, “there is no question [Plaintiff] has gout. There’s a question whether he
took his medicine on a routine basis and whether he was following a diet that was
sufficient in trying to keep his uric acid down along with the medication he’s taking for
gout.” Id. at 82.
When further questioned by Dr. Alex, Plaintiff testified that he has flare-ups at
least four or five times in a six-month period. Id. at 86. They usually last seven to ten
days but can last for weeks or months at a time. Id. at 86-87. Dr. Alex opined, “It is not
clinically reasonable [for someone to have that many attacks] nor the extent of the
discomfort lasting that many days.” Id. at 87.
Dr. Alex opined, “[Dr. Torello] stated that he was capable of sedentary work and
with his history, with the arthritic changes that he is showing, the osteo arthritic changes
that he is showing, with his weight and with the gout, I would say to the court that I think
that he should be limited to sedentary work.” Id. at 82. Additionally, he should avoid
excessive heat and cold and high humidity. Id. at 83. He should not climb scaffolds or
ladders, and his ability to kneel, crawl, and bend are limited to only what is necessary for
activities of daily living. Id.
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C.

Medical Opinions
i. Antony T. Jacob, M.D.

Dr. Jacob, Plaintiff’s treating physician, completed a medical assessment in
February 2009. Id. at 920. He opined Plaintiff could not walk at all in an eight-hour
workday, could sit for four hours, and could not lift or carry any weight. Id. at 921. His
ability to push/pull and bend is extremely limited and repetitive foot movements are
markedly limited. Id.
On June 19, 2009, Dr. Jacob opined in a letter that Plaintiff was “not ready to
return to work at this time. He is not able to do any kind of work that involves a lot of
lifting, bending, or walking.” Id. at 700.
Dr. Jacob completed a second medical impairment questionnaire in February
2011. Id. at 971-73. He indicated Plaintiff had a history of joint pain, swelling, and
tenderness. Id. at 971. He also has morning stiffness and limitation of motion in his
joints. Id. Plaintiff had inflammation in both knees at his most recent examination. Id.
Dr. Jacob opined Plaintiff has significant fatigue; no limitation of activities of daily
living; moderate limitation in maintaining social functioning; and mild limitation in
completing tasks in a timely manner due to deficiencies in concentration, persistence, and
pace. Id. at 972. He can stand for thirty minutes at one time, sit for one hour, frequently
lift five pounds, occasionally bend, never stoop, and occasionally raise either arm over
shoulder level. Id. Plaintiff cannot work for any amount of time. Id.

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ii. Jonathan Sullivan, DPM
Dr. Sullivan, Plaintiff’s treating podiatrist, completed a medical assessment on
February 2, 2015. (Doc. #7, PageID #s 1338-39). He diagnosed diffuse osteoarthritis
and left-side calcaneal-navicular coalition. Id. at 1238. Dr. Sullivan opined Plaintiff
could stand for one hour at one time. Id. Further, he needed to frequently elevate his
legs at or above his waist. Id. Dr. Sullivan also indicated that Plaintiff is not “able to
walk at a reasonable pace on rough or uneven surface, able to walk enough to shop or
bank, able to climb a few steps at a reasonable pace with the use of a single handrail[.]”
Id. Additionally, Plaintiff’s pain is severe. Id.
III.

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

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security
Act—has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job—i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
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2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

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

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

Plaintiff has not engaged in substantial gainful employment since
December 31, 2000.

Step 2:

He has the severe impairments of gout; osteoarthritis of bilateral
knees; status post “big toe replacement” surgery in May 2014; and
obesity.

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His 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), consists of “sedentary work … except: [Plaintiff] can
lift a maximum of 10 pounds occasionally and frequently. He can
stand and/or walk a total of two hours in an eight-hour workday. He
can sit for a total of six hours in an eight-hour workday. Due to his
foot impairments, he can only occasionally operate foot controls.
[Plaintiff] can never climb ladders, ropes, or scaffolds, but can
occasionally climb ramps and stairs. He can occasionally balance and
stoop, but he can never kneel, crouch, or crawl. [Plaintiff] must avoid
workplace hazards, such as unprotected heights and moving
mechanical parts. He cannot tolerate exposure to humidity and
wetness in the workplace; nor can he tolerate extremes of heat and
cold. He must have the option to sit or stand at will at his
workstation. [Plaintiff] has no mental health limitations.”

Step 4:

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

Step 5:

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

(Doc. #7, PageID #s 1015-28). These main findings led the ALJ to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 1028.
3

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

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V.

Discussion
Plaintiff contends that the ALJ failed to properly consider the medical opinions of

record. The Commissioner maintains that substantial evidence supports the ALJ’s
assessment of the opinion evidence.
Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician's conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The regulations also require ALJs to provide “good reasons” for the weight placed
upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory “good
reasons” requirement is satisfied when the ALJ provides “specific reasons for the weight
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placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. Rul. No. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to
any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
The ALJ in the present case copied the previous ALJ’s assessment of Dr. Jacob’s
opinions—almost word for word—but added some further analysis. Significantly, in
Plaintiff’s previous case, the Court found that the previous ALJ “failed to conduct a
controlling weight analysis and failed to give good reasons for the weight ultimately
accorded Dr. Jacob’s opinions. Accordingly, the ALJ’s conclusions in this regard are not
supported by substantial evidence.” Aytch v. Commissioner of Social Security, 3:13-cv135, 2014 WL 4080075, at *5 (S.D. Ohio Aug. 19, 2014) (M.J. Newman), adopted in
full, 2014 WL 4443286 (S.D. Ohio Sept.8, 2014) (D.J. Rice).
The portion added by ALJ Anschuetz contains a brief analysis of the treating
physician rule. Specifically, “I note that the regulations direct that well supported
treating physician opinions that are consistent with other substantial evidence of record
must receive controlling weight.” (Doc. #7, PageID #1025) (citing 20 C.F.R. §§
404.1527(d)(2); 416.927(d)(2); Soc. Sec. R. 96-2p, 1996 WL 374188). The ALJ’s
recitation of the treating physician rule, however, is not correct. A treating physician’s
opinion need not be consistent with other substantial evidence—it need only be “not
inconsistent” with other substantial evidence of record. The difference is significant.
The Social Security Administration defines “not inconsistent:” “This is a term used to
indicate that a well-supported treating source medical opinion need not be supported
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directly by all of the other evidence (i.e., it does not have to be consistent with all the
other evidence) as long as there is no other substantial evidence in the case record that
contradicts or conflicts with the opinion.” Soc. Sec. R. 96-2p, 1996 WL 374188, at *3.
By needing Dr. Jacob’s opinions be consistent with the record, the ALJ required more of
him than the Regulations require. This constitutes error. See Bowen, 478 F.3d at 746
(“[A] decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.” (citing Wilson, 378 F.3d at 546-47)).
However, even if ALJ Anschuetz had used the correct standard, his findings are
not supported by substantial evidence. He found, “the portions of Dr. Jacob’s opinions
that suggest that the claimant cannot do work, at least within the sedentary functional
level, … are contradicted by other opinions of record.” (Doc. #7, PageID #1025).
However, the ALJ does not provide any further explanation or any indication of which
opinions he is referring to.
The ALJ further found, “despite allegations that suggest only that [Plaintiff’s]
condition has continued to worsen, he earned more working in 2014, part of the time as a
server, than he had since 2000. Consequently, Dr. Jacob’s conclusions that [Plaintiff]
cannot walk and cannot lift more than five pounds have been contradicted by [Plaintiff’s]
own actions as well.” Id. at 1025. Plaintiff worked at Red Lobster from February to May
2014. Id. at 1085. He then had surgery and returned to work at the end of August 2014
and continued to work until October 1, 2014. Id. After Plaintiff’s surgery, Dr. Sullivan
released Plaintiff to go back to work with limitations. Id. at 1090. Specifically, Plaintiff
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should not carry more than ten pounds and he should not work for more than two to three
hours. Id. Plaintiff testified that despite these limitations, he usually worked seven-hour
shifts and carried tray that weighed between five and ten pounds. Id. He explained that
he exceeded the limitations because “I thought I could do it. I thought I could even with
the way I was hurting and stuff. I have a family to try to take care of, and child support
stuff. So, I try to get my body to do something that it couldn’t possibly do, but I tried. I
kept trying.” Id. at 1091. Unfortunately, after returning to work for a little over one
month, Plaintiff was terminated from Red Lobster, “They told me I was a good server,
but they didn’t feel that I was adequate once I came back after the surgery. … They said
that I looked like I was always – my face looked like I was always in pain or agitated.”
Id. at 1089.
It is difficult to understand how Plaintiff’s attempt to work contradicts Dr. Jacob’s
opinions. Notably, Dr. Jacob’s most recent opinion is from February 25, 2011—three
years prior to Plaintiff working at Red Lobster. (Doc. #6, PageID #971). Despite the
time difference, Plaintiff’s attempt—and resulting failure—at working is consistent with
Dr. Jacob’s opinion that he is not able work at a job that involves standing for long
periods of time. The ALJ fails to mention that although Plaintiff worked at Red Lobster
for a total of over four months, he only made $1,704.27. Finally, it is illogical to fault
Plaintiff for attempting to work. Despite his recurring pain and medical problems, he
attempted to support himself and his family. His effort should not be used against him
when determining his eligibility for benefits.

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The little ALJ Anschuetz added to the previous ALJ’s assessment of Dr. Jacob’s
opinions is inadequate, incorrect, and not supported by substantial evidence.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.4
A remand is appropriate when the ALJ’s decision is unsupported by substantial evidence
or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,
378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s
opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the
plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific
reasons supported by substantial evidence for finding the plaintiff lacks credibility, see
Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or

4

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

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where the evidence of disability is strong while contrary evidence is lacking. Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of §405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
criteria mandated by the Commissioner’s Regulations and Rulings and by case law, and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether his applications for
Disability Insurance Benefits and Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Everett Aytch was under a
“disability” within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be terminated on the Court’s docket.

Date: July 25, 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 Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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