Moore 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 Jacqueline Moore was under a "disability" within the meaning of the Social Security Act; this matter be REMAN DED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be terminated on the Court's docket. Objections to R&R due by 8/16/2017. Signed by Magistrate Judge Sharon L. Ovington on 8/2/2017. (lek)

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

: Case No. 3:16-cv-178
:
:
: District Judge Walter H. Rice
:
Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Jacqueline Moore brings this case challenging the Social Security

Administration’s denial of her applications for a period of disability, Disability Insurance
Benefits, and Supplemental Security Income. She applied for benefits on March 12,
2017, asserting that she could no longer work a substantial paid job. Administrative Law
Judge (ALJ) Gregory G. Kenyon concluded that she was not eligible for benefits because
she 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. #8), the
Commissioner’s Memorandum in Opposition (Doc. #11), Plaintiff’s Reply (Doc. #12),
and the administrative record (Doc. #7).

1

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

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 Kenyon’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since November 1, 2009.

She was thirty-six 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). She has a
high school education. See 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Kenyon that she has bipolar disorder.
(Doc. #7, PageID #111). “I have extreme ups and downs …. I have bouts of sleeping for
a couple days at a time …. I have trouble getting my daughter off to school and I sleep
all day. It’s very difficult to do things that I normally would have no trouble getting
done.” Id. at 112.
Plaintiff further explained, “I wouldn’t say I hear voices, but I do hear people
think. … [I]t’s not an actual outside audible sound.” Id. “I’ll be … in a room with
somebody and I will hear them talking and I will feel a nervousness where they’ll be
thinking something, but their lips won’t be moving.” Id. at 113. In the past, this occurred
every day but medication has “helped tremendously.” Id.
She also experiences irritability. Id. at 112. However, she does not get into
arguments with other people: “the irritability I keep to myself. I usually write in a
journal that I keep well hidden.” Id. at 113.
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Plaintiff’s doctor recently diagnosed post-traumatic stress disorder. Id. at 115.
“He’s quite sure that I’ve been molested as a child.” Id. She has intrusive memories one
to two times per week. Id. at 116.
Plaintiff had carpal tunnel and had release surgeries on both arms. Id. at 111. She
has no ongoing effects from it. Id. She also has hepatitis but does not experience any
symptoms. Id. She has some pain in her back and hip. Id. at 124.
Plaintiff has struggled with an addiction to alcohol. Id. at 116. She quit drinking
in May 2013 but has had some relapses. Id. Prior to May 2013, she drank every day. Id.
at 117. When she quit, she went to Alcoholics Anonymous every day for almost a year.
Id. She explained, “I was attempting to self-medicate with alcohol … for my bipolar
depression and anxiety and because of the proper medications that my doctor prescribed,
I no longer need to self-medicate with alcohol ….” Id.
Plaintiff lives with her older brother and her eleven-year-old daughter. Id. at 10809. She does not have a driver’s license. Id. at 109. She is able to do some household
chores such as vacuuming and washing dishes. Id. at 119. Her brother helps with chores
as well. Id. Plaintiff is able to take care of her personal needs “with difficulty.” Id. at
118. Before she began taking medication for her mental health issues, she went long
periods of time without bathing or brushing her teeth. Id. With medication, she still
sometimes goes a week without bathing and a few days without brushing her teeth. Id.
She estimated that in a month, she has fifteen days that she is not able to get out of bed,
shower, or brush her teeth. Id. at 122.

3

Plaintiff does not leave her house very often. Id. at 114. She rides her bike to the
library approximately once per week to collect and return DVDs. Id. She has one friend
but they do not go anywhere or do anything. Id. at 115. On an ordinary day, she always
gets her daughter to school and is home when she gets off the bus in the afternoon. Id. at
120. While her daughter is at school, Plaintiff’s activities depend on how she is feeling.
Id. Sometimes she goes back to sleep and sometimes she is able to get things done. Id. at
120-21.
B.

Medical Opinions
i. Mark A. MacNealy, D.O., J.D.

Dr. MacNealy, Plaintiff’s treating psychiatrist, completed a mental impairment
questionnaire on October 31, 2014. (Doc. #7, PageID #s 709-12). He noted that he had
seen her every month for one year. Id. at 709. He diagnosed bipolar disorder and
paranoid personality and assigned her a Global Assessment of Functioning score of
thirty-five. Id. Dr. MacNealy identified many of her signs and symptoms, including, in
part: poor memory, appetite disturbance with weight change; sleep disturbance;
personality change; delusions or hallucinations; recurrent panic attacks; feelings of
guilt/worthlessness; difficulty thinking or concentrating; social withdrawal or isolation;
and persistent irrational fears. Id.
Dr. MacNealy opined that Plaintiff’s prognosis is poor, and she is “unable to work
at any time and within any occupation.” Id. at 710-11. He indicated that all of Plaintiff’s
functional limitations are extreme. Id. at 711-12.

4

ii. Warren R. Ljungren, M.D., & Susan M. Ash, C.N.P.
Dr. Ljungren and Ms. Ash completed interrogatories on June 12, 2014. Id. at 69199. Ms. Ash indicated that Dr. Ljungren had not seen Plaintiff in three years, but in the
last year, she saw Ms. Ash three times and saw Dr. Myers once. Id. at 691. They have
treated her for “bipolar depression[,] alcohol substance[,] thrush[,] women’s health[,]
facial lacerations[,] birth control[, and] throat infection.” Id. at 692. Plaintiff is able—
“most of the time”—to be prompt and regular in attendance; respond appropriately to
supervision, co-workers, and customary work pressures; withstand the pressure of
meeting normal standards of work production and accuracy; sustain attention and
concentration on her work to meet normal standards; understand, remember, and carry
out simple work instructions without requiring very close supervision; behave in an
emotionally stable manner; and demonstrate reliability. Id. at 693-96. She is not able to
maintain concentration and attention for extended periods. Id. at 696. She has a slight
restriction of activities of daily living; moderate difficulties in maintaining social
functioning; and moderate deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner. Id. at 699.
Ms. Ash also completed a mental impairment questionnaire and assessment of
ability to do work-related activities (physical). Id. at 700-08. She indicated that Plaintiff
was referred to a psychiatrist for mental health treatment. Id. at 706. And, at her last
appointment, she was “much improved [and] able to carry on conversation fairly
appropriately [but she was] still having some hallucinations [and] paranoia.” Id. Ms.
Ash opined that Plaintiff would likely be absent from work four times per month because
5

of her impairments and treatment. Id. at 707. Additionally, Plaintiff has marked
difficulties in maintaining social functioning; marked deficiencies in concentration,
persistence, or pace resulting in failure to complete tasks in a timely manner; and marked
limitations in her ability to remember locations and work-like procedures and ability to
understand, remember, and carry out detailed instructions. Id.
And, Ms. Ash opined that because of Plaintiff’s history of lumbar strain, she could
frequently lift and carry twenty-five pounds. Id. at 700. Further, she could occasionally
climb, balance, stoop, crouch, kneel, crawl, and push/pull. Id. at 702. She concluded that
Plaintiff has the residual functional ability to do light work on a sustained basis but she
“still [has] hallucinations and communication is affected.” Id. at 703-04.
iii. Mary Ann Jones, Ph.D.
Dr. Jones evaluated Plaintiff on May 23, 2013. Id. at 504-12. She diagnosed
bipolar disorder (depression); alcohol dependence (in 1.5-month remission);
psychological factors affecting physical condition; and obsessive-compulsive disorder.
Id. at 510. She opined, “her history of alcoholism and other psychological symptoms
would likely negatively impact her ability to understand, remember, and apply
instructions in a work setting consistent with [a low average range of intelligence].” Id.
at 511. Similarly, “it is likely that her history of alcoholism and current symptoms of
depression and obsessive-compulsive symptoms would negatively impact her ability to
sustain reasonable attention and concentration and to maintain appropriate persistence
and pace in order to perform various work tasks.” Id. Further, “there do appear to be

6

some limitations in her ability to conform to social expectations in a work setting… [and]
to cope appropriately with common workplace pressure.” Id. at 511-12.
iv. Kristen Haskins, Psy.D., & Aracelis Rivera, Psy.D.
Dr. Haskins reviewed Plaintiff’s records on July 2, 2013. Id. at 135-47. She
found that Plaintiff had four severe impairments: affective disorders; alcohol, substance
addiction disorders; somatoform disorders; and anxiety disorders. Id. at 141.
Additionally, she had one non-severe impairment—chronic liver disease. Id. Dr.
Haskins opined that she has a moderate restriction of activities of daily living; moderate
difficulties in maintaining social functioning; moderate difficulties in maintaining
concentration, persistence, or pace; and no episodes of decompensation of extended
duration. Id. She concluded that Plaintiff was limited to one to three step tasks;
superficial interaction with the public, coworkers, and supervisors; and “supervisory
support during times of significant change.” Id. at 143-45. Further, she is “limited to
work in a static setting [without] the need for fast pace or strict production quotas or close
sustained focus/attention. No multitasking.” Id. at 144.
On August 28, 2013, Dr. Rivera reviewed Plaintiff’s records and affirmed Dr.
Haskins’s findings. Id. at 163-76
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
7

Act—has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job—i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
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
8

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 Kenyon to evaluate the evidence connected to

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

Plaintiff has not engaged in substantial gainful employment since
November 1, 2009.

Step 2:

She has the severe impairments of hepatitis C with associated
alcoholic liver disease, a bipolar disorder, depression, and a history of
alcohol abuse.

Step 3:

She 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:

Her residual functional capacity, or the most she could do despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “medium work … subject to the following
limitations: (1) frequent crouching, crawling, kneeling, stooping, 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) occasional contact with co-workers, supervisors,

2

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

9

and the public; (6) no fast paced production work or jobs involving
strict production quotas; (7) 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 (8) no
occupational exposure to drugs or alcohol.”
Step 4:

She is unable to perform any of her past relevant work.

Step 5:

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

(Doc. #7, PageID #s 83-98). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 97.
V.

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

record and failed to properly evaluate her credibility and symptom severity. She also
asserts that the ALJ failed to adequately account for the moderate limitation in
concentration, persistence, or pace in the hypothetical to the vocational expert. The
Commissioner maintains that substantial evidence supports the ALJ’s evaluation of the
opinion evidence, Plaintiff’s credibility, and her residual functional capacity.
A.

Medical Opinions

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
10

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
placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 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.
i. Dr. MacNealy’s Opinion
ALJ Kenyon found that Dr. MacNealy’s opinion was not entitled to controlling or
deferential weight and, instead, assigned it little weight. (Doc. #7, PageID #95).
ALJ Kenyon first acknowledged that Dr. MacNealy is a mental health professional
who saw Plaintiff on a monthly basis for a year. Id. This addresses several of the factors
used to weigh medical opinions—specifically, specialization, length of treatment
11

relationship, and frequency of examination. See 20 C.F.R. § 404.1527(c). However, this
constitutes error: “these factors are properly applied only after the ALJ has determined
that a treating-source opinion will not be given controlling weight.” Gayheart, 710 F.3d
at 376 (citing 20 C.F.R. § 404.1527(c)(2)) (emphasis added).
Although the ALJ stated that Dr. MacNealy’s opinion is not entitled to controlling
weight, it is not clear that he addressed either condition of the treating physician rule
when weighing his opinion. ALJ Kenyon did not mention the second condition—
whether the opinion is not inconsistent with the record. And, it is unclear if he addressed
the first—whether the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques. He merely finds that Dr. MacNealy’s “opinion is
unsupported by objective mental status findings.” (Doc. #7, PageID #95). Although he
could be referring to the first condition, he could also be referring to “supportability”
under the factors. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents
relevant evidence to support a medical opinion, particularly medical signs and laboratory
findings, the more weight we will give that medical opinion.”).
The uncertainty of whether ALJ Kenyon addressed the conditions of the treating
physician rule conflicts with the requirement that the decision “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.” Soc. Sec. R. 96-2p,
1996 WL 374188, at *5. Further, by using the same standard to weigh treating
physicians’ opinions and other physicians’ opinions, he fails to recognize the deference
given to treating physicians’ opinions. Id. at *4 (“In many cases, a treating source’s
12

medical opinion will be entitled to the greatest weight and should be adopted, even if it
does not meet the test for controlling weight.”).
However, if ALJ Kenyon was addressing the treating physician rule, his findings
are not supported by substantial evidence. After concluding that Dr. MacNealy’s opinion
is unsupported, the ALJ observed, “His progress notes clearly do not [portray] [Plaintiff]
as having the “extreme” level of limitations he later noted on this assessment form. …
Dr. MacNealy documented an anxious mood and loose thought processes at the initial
evaluation in October 2013, but in subsequent progress notes, he consistently
documented [essentially] normal mental status examinations.” (Doc. #7, PageID #95).
Under the treating physician rule, “For a medical opinion to be well-supported by
medically acceptable clinical and laboratory diagnostic techniques, it is not necessary that
the opinion be fully supported by such evidence.” Soc. Sec. R. 96-2p, 1996 WL 374188,
at *2. ALJ Kenyon failed to acknowledge that substantial evidence in the record supports
Dr. MacNealy’s opinion. For example, his treatment notes support his opinion. Dr.
MacNealy noted in December 2013, “Only four anxiety attacks since last visit.” (Doc.
#7, PageID #744). Plaintiff’s last visit was only one month before. Id. at 746-47. He
consistently prescribed Lithium for mood stability, and in January 2014, he began
prescribing Abilify, an anti-psychotic. Id. at 743-47. In June 2014, he added Latuda, a
neuroleptic. Id. at 730. After giving Plaintiff the MINI International Interview, Dr.
MacNealy determined Plaintiff meets the diagnostic criteria for Post-Traumatic Stress
Disorder. Id. at 772. Together, his notes reveal that Plaintiff’s ongoing struggle with
mental health issues.
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Treatment notes from Beavercreek Family Medicine further support Dr.
MacNealy’s opinion. In June 2013, Ms. Ash noted, “She stopped all her medication
because she was feeling paranoid and unsure of taking even the lactulose. She stated that
she is also having some hallucinations such as cracks in the side walk are red and [she is]
unsure of some of the things she hears from the TV. She is even not trusting her family
members ….” Id. at 763. Ms. Ash noted in July 2013 that Plaintiff was beginning to
understand that “part of the issues that she is having is due to hearing [her mother and
brother] speak when they are actually not speaking ‘almost like telepathy.’” Id. at 760.
In April 2014, Plaintiff had “noted remarkable improvements.” Id. at 755. However,
Plaintiff admitted she still has “bouts of hallucinations or delusions.” Id.
Dr. Jones’s evaluation of Plaintiff also supports Dr. MacNealy’s opinion. She
found that Plaintiff’s history of alcoholism along with her symptoms of depression and
obsessive-compulsive disorder would negatively impact her ability to understand,
remember, and apply instructions in a work setting; to sustain reasonable attention and
concentration; and to maintain appropriate persistence and pace in order to perform
various work tasks. Id. at 511. Further, Dr. Jones opined that she had some limitations in
her ability to conform to social expectations in a work setting and to cope appropriately
with common workplace pressure. Id. at 511-12.
Significantly, the ALJ’s analysis ignores the realities of mental illness. It can be
considerably more difficult to substantiate psychiatric impairments by objective
laboratory testing:

14

[W]hen mental illness is the basis of a disability claim,
clinical and laboratory data may consist of the diagnosis and
observations of professionals trained in the field of
psychopathology. The report of a psychiatrist should not be
rejected simply because of the relative imprecision of the
psychiatric methodology or the absence of substantial
documentation, unless there are other reasons to question the
diagnostic techniques.
Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citing Poulin v. Bowen, 817
F.2d 865, 873-74 (D.C. Cir. 1987), quoting Lebus v. Harris, F.Supp. 56, 60 (N.D. Cal.
1981)). In the present case, there are no reasons to question Dr. MacNealy’s diagnostic
techniques.
The one reason for rejecting Dr. MacNealy’s opinion provided by the ALJ does
not amount to “good reasons.” “The failure to provide ‘good reasons’ for not giving [the
treating physician’s] opinions controlling weight hinders a meaningful review of whether
the ALJ properly applied the treating-physician rule….” Gayheart, 710 F.3d at 377.
Therefore, the ALJ’s finding that Dr. MacNealy’s opinion is entitled to “little
weight” is not supported by substantial evidence.
ii. Dr. Haskins & Dr. Rivera’s Opinion
In contrast to the “little weight” the ALJ assigned Plaintiff’s treating psychiatrist
and consulting psychologist, he concluded that the opinions of State agency reviewing
psychologists, Dr. Haskins and Dr. Rivera, were entitled to “great weight” because “their
assessments are supported by objective signs and findings in the preponderance of the
record.” (Doc. #7, PageID #93). He further noted, “As discussed above, [Plaintiff] has
responded well to mental health treatment. Even when considering her history of alcohol

15

abuse, which is now in reported remission, the claimant experiences no more than
moderate work-related mental limitations.” Id. at 93.
The ALJ’s explanation for the weight he assigned only addresses one factor—
supportability. This constitutes error: “Unless a treating source’s opinion is given
controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant….” 20
C.F.R. § 404.1527(e)(2)(ii). In addition, the ALJ erred by failing to apply the same level
of scrutiny to reviewing psychologists’ opinions as he applied to treating source’s
opinion. See Gayheart, 710 F.3d at 379 (citing 20 C.F.R. § 404.1527(c); Soc. Sec. R. 966p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996)) (“A more rigorous scrutiny
of the treating-source opinion than the nontreating and nonexamining opinions is
precisely the inverse of the analysis that the regulation requires.”). The ALJ criticizes Dr.
Jones’s opinion because she only saw Plaintiff once. (Doc. #7, PageID #94). However,
the ALJ fails to mention that Dr. Haskins and Dr. Rivera never met with Plaintiff, and
they evaluated Plaintiff’s records before any of her treating doctors submitted their
opinions.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3
B.

Remand

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
3

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.

16

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
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
17

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 her 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 Jacqueline Moore 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: August 2, 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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