Alston 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 Kimberly Alston was under a "disability" within the meaning of the Social Security Act; this matter be REMAND ED 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 7/3/2017. Signed by Magistrate Judge Sharon L. Ovington on 6/19/2017. (lek)

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

: Case No. 3:16-cv-205
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Kimberly Alston brings this case challenging the Social Security

Administration’s denial of her application for period of disability and Disability
Insurance Benefits. She applied for benefits on August 6, 2013, asserting that she could
no longer work a substantial paid job. Administrative Law Judge (ALJ) Robert M.
Senander 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),
the administrative record (Doc. #6), and the record as a whole.

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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 Senander’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since August 1, 2012.2 She

was forty-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). On September 5, 2013,
Plaintiff turned fifty years old and was then considered a person “closely approaching
advanced age.” See id. at § 404.1563(d). She has a limited education. See 20 C.F.R. §
404.1564(b)(3)
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Senander that since her last hearing,
her neck has gotten worse. (Doc. #6, PageID #108). She cannot turn her head as much
as she used to, and if she looks down for over three to four minutes, her head starts
hurting and her vision gets blurry. Id. As a result, she is no longer able to read the bible
like she used to. Id. Additionally, if she turns her head, she has increased pain in the
back of her head, shoulders, and down her back. Id. at 109. Plaintiff’s pain is the worst
when she gets up in the morning. Id.

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Plaintiff previously applied for benefits alleging disability beginning April 23, 2010. (Doc. #6, PageID
#138). ALJ Mary F. Withum found that Plaintiff was not under a “disability” as defined in the Social
Security Act. Id. at 150.

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Plaintiff’s attorney stated in response to the ALJ’s asking what had changed since
Plaintiff’s last application, “due to chronic pain and cervical spine problems primarily,
she’s now likely limited to sedentary work instead of a reduced range of light work ….”
Id. at 103. He also pointed out that the previous ALJ did not find that degenerative disc
disease was one of Plaintiff’s severe impairments. Id. at 106.
Plaintiff testified that her carpal tunnel has also gotten worse, and when she walks,
she has increased pain in her legs and back. Id. at 111. Her pain from fibromyalgia is
also more severe. Id. at 112. As a result, she cannot do activities that she used to do. Id.
at 113. She experiences migraines once or twice a week. Id. at 114. If she has
medication, they last a day and a half. Id. at 114-15. But if she runs out of medication,
they can last two to three days. Id. at 114.
Plaintiff has both a CPAP machine and an oxygen machine for sleep apnea. Id. at
110. She needs oxygen because after her sleep study, “they said I stop breathing 58 times
out of a minute, three seconds at a time ….” Id. She also experiences breathing
problems when she walks up the stairs or performs other similar activities. Id.
Plaintiff also struggles with depression. Id. at 114. It causes her to not want to be
around anyone. Id.
Plaintiff lives in a house with her daughter and grandchildren. Id. at 99. She
sometimes tries to take care of her grandchildren but cannot because she cannot stay
awake. Id. at 114. She used to drive but stopped after getting into a car accident in June
2015. Id. at 99-100. The left side of her face was bruised and swollen in the accident and
she still had a knot. Id. at 100. Plaintiff estimated that she can stand for five to six
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minutes at a time. Id. at 113. She does not believe that she could sit in a chair all day
because it would hurt her back and legs. Id. She also did not think she could lift twenty
pounds because of the pain. Id.
B.

Medical Opinions
i. Donald J. Kramer, Ph.D.

Dr. Kramer evaluated Plaintiff on January 3, 2014. Id. at 450. He diagnosed
depressive disorder, anxiety disorder, and borderline intellectual functioning. Id. at 454.
Dr. Kramer opined that Plaintiff’s prognosis appeared “somewhat guarded.” Id. He
noted, “she displayed some very significant psychomotor retardation …. She was very
unspontaneous, mumbled, and was soft spoken and difficult to understand.” Id.
Additionally, she had “some difficulty understanding simple questions ….” Id. at 455.
Dr. Kramer opined that Plaintiff “appears to have the intellectual ability to
perform simple tasks, although her attention and concentration and persistence and pace
were somewhat weak ….” Id. He also noted that her eye contact was poor and she
looked uncomfortable. Id. He indicated that her limitations may be due to the fact that
Plaintiff reported experiencing a migraine at the examination. Id.
ii. Paul Tangeman, Ph.D., & Carl Tishler, Ph.D.
Dr. Tangeman reviewed Plaintiff’s records on January 28, 2014. Id. at 163-75.
He diagnosed seven severe impairments: fibromyalgia, migraine, inflammatory bowel
disease, obesity, affective disorders, anxiety disorders, and borderline intellectual
functioning. Id. at 169. He opined that Plaintiff had moderate restrictions of activities of
daily living; moderate difficulties in maintaining social functioning; and moderate
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difficulties in maintaining concentration, persistence, or pace. Id. Dr. Tangeman found
that Plaintiff was markedly impaired in her ability to understand, remember, and carry
out detailed instructions. Id. at 172. She was moderately impaired in her ability to
understand, remember, and carry out very short and simple instructions. Id. He
concluded, Plaintiff “is able to perform simple 1-2 step tasks in a static environment.
Limited to occasional contact with the public.” Id. at 173.
On May 13, 2014, Dr. Tishler reviewed Plaintiff records and agreed with Dr.
Tangeman’s conclusions. Id. at 163-75.
iii. Gary Hinzman, M.D. & Eli Perencevich, D.O.
Dr. Hinzman reviewed Plaintiff’s records on December 12, 2013. Id. at 163-75.
He adopted the previous ALJ’s residual functional capacity under Acquiescence Ruling
98–4. Id. at 171. On May 13, 2014, Dr. Perencevich reviewed Plaintiff’s records and
agreed with Dr. Hinzman. Id. at 178-90.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits 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). 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); see Bowen, 476 U.S. at
469-70.
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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
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

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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 Senander 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. He reached
the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
August 1, 2012.

Step 2:

She has the severe impairments of degenerative disc disease of the
cervical spine, migraine headaches, history of inflammatory bowel
syndrome, sleep apnea, obesity, fibromyalgia, depression, and
anxiety.

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 setting
despite her impairments, see Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 239 (6th Cir. 2002), consists of “light work … except she
should never climb ladders, ropes or scaffolding but can occasionally
climb ramps and[/]or stairs, kneel, crouch and/or crawl. [Plaintiff]
may frequently handle and finger objects with the right upper
extremity. She must avoid concentrated exposure to pulmonary
irritants such as fumes, odors, dusts and gases and exposure to poorly
ventilated areas, and she must avoid all exposure to unprotected
heights. [Plaintiff] retains the sustained concentration, persistence
and pace for simple work of a routine and repetitive type.”

Step 4:

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

Step 5:

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

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(Doc. #6, PageID #s 78-90). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 89.
V.

Discussion
Plaintiff contends that the ALJ weighed the medical opinion evidence improperly.

She also argues that the ALJ erred in finding that she was not credible. The
Commissioner maintains that substantial evidence supports both the ALJ’s evaluation of
the opinion evidence and the ALJ’s finding that Plaintiff was not fully credible.
A.

Medical Opinions

Social Security Regulations recognize several different categories of medical
sources: treating physicians, nontreating yet examining physicians, and nontreating yet
record-reviewing physicians. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th
Cir. 2013). The record in this case contains the opinions of an examining psychologist,
Dr. Kramer, and four record-reviewing doctors, Drs. Tangeman, Hinzman, Tishler, and
Perencevich.
Under the Regulations, “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); see Soc. Sec. R. 96–6p, 1996 WL 374180, at *2. When considering
the opinions of nontreating sources, ALJs use the same factors used when weighing
treating source opinions—the examining relationship, supportability, consistency,
specialization, and other factors such as the source’s understanding of disability
programs. 20 C.F.R. § 404.1527(a)-(d).
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[T]he opinions of State agency medical and psychological
consultants … can be given weight only insofar as they are
supported by evidence in the case record, considering such
factors as the supportability of the opinion in the evidence …,
the consistency of the opinion with the record as a whole, …,
and any explanation for the opinion provided by the State
agency medical or psychological consultant or other program
physician or psychologist.
The adjudicator must also
consider all other factors that could have a bearing on the
weight to which an opinion is entitled, including any
specialization of the State agency medical or psychological
consultant.
Soc. Sec. R. 96–6p, 1996 WL 374180, at *2
The ALJ’s discussion of the medical opinions is puzzling: Rather than using the
doctors’ names, he states, “The undersigned considered the opinions of state agency
medical consultants and other consultants and weighed these opinions and statements
from no [sic] examining expert sources (Exhibits B4A and B6A).” (Doc. #6, PageID
#87). Because all five doctors are “state agency medical consultants,” it is not entirely
clear who the ALJ is referring to when he uses “state agency medical consultants.” The
Commissioner, however, admits that the ALJ did not weigh Dr. Kramer’s opinion. (Doc.
#11, PageID #1281). Based on the Commissioner’s interpretation, it appears that ALJ
Senander was only addressing the opinions of the State agency record-reviewing doctors,
Drs. Tangeman, Hinzman, Tishler, and Perencevich.
Unfortunately, the ambiguity does not end there. The ALJ’s reasons for the
weight he assigned the State agency medical consultants’ opinions are vague and
nonspecific:
The findings of the state agency medical consultants that the
claimant does not meet or equal listing [sic] and that she is
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not disabled are supported by the record. Their assessments
are reasonable and generally in line with the evidence as a
whole and do not conflict with the medical opinions of any
treating or examining source. The findings of the state
agency medical consultants are therefore adopted and
incorporated to the [sic] within her residual functional
capacity assessment.
(Doc. #6, PageID #87).
The ALJ’s terse assessment of the record-reviewing doctors’ opinions constitutes
error under the Regulations: “[ALJs] … are not bound by findings made by State agency
or other program physicians and psychologists, but they may not ignore these opinions
and must explain the weight given to the opinions in their decisions.” 20 C.F.R. §
404.1527(e)(2)(ii); see Soc. Sec. R. 96–6p, 1996 WL 374180, at *2. The ALJ did not
provide any further explanation of his findings. He does not identify what evidence
supports their assessments, what makes them reasonable, or how they are consistent with
other evidence of record.
The ALJ does not acknowledge that the doctors did not review all of the evidence
in the record—including evidence showing a significant increase in the severity of
Plaintiff’s symptoms. For example, in September 2014, Plaintiff’s primary care
physician referred her to Samaritan Behavioral Health for mental health services. Id. at
578. Upon intake, Plaintiff was sent to Crisis Care after she admitted that she often
thinks about hurting her husband and once attacked him with a knife with the intent to
kill him. Id. at 573. A lethality assessment indicated she “was at moderate risk for
homicide.” Id.

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Although the ALJ cites to these records, he does not account for impact they might
have on the reviewing doctors’ opinions. See id. at 87. As Plaintiff correctly noted,
“Homicidal ideation is not a positive personality trait for obtaining substantial gainful
employment.” (Doc. #8, PageID #1264). And, this evidence suggests that Plaintiff’s
difficulties in maintaining social functioning may be more severe than what the State
agency physicians concluded.
The ALJ also fails to mention that the professional counselor at Samaritan
Behavioral Health, Jessica Nye, diagnosed Plaintiff with post-traumatic stress disorder
(PTSD) after she scored very high on the PTSD Checklist (PCL). (Doc. #6, PageID #s
573, 595). She also diagnosed major depressive disorder and intermittent explosive
disorder. Ms. Nye opined that Plaintiff needed to continue treatment, as she was
“experiencing panic attacks nearly every day associated with past trauma[;] [and she] has
difficulty controlling anger and is at risk of harming herself or others.” Id. at 595.
Further, despite adopting the opinions of the State agency consultants, ALJ
Senander did not incorporate all of their diagnoses and limitations. Dr. Tangeman and
Dr. Tishler found that borderline intellectual functioning was one of Plaintiff’s severe
impairments. In addition, Dr. Kramer diagnosed borderline intellectual functioning. Yet,
the ALJ did not include it as a severe impairment and failed to address why he did not.
The ALJ also failed to weigh the opinion of the consulting psychologist, Dr.
Kramer. The Commissioner acknowledges this but contends “any error in not discussing
its weight was harmless because it would not cause the ALJ’s ultimate decision to
change.” (Doc. #11, PageID #1281) (citing Rabbers, 582 F.3d at 658). The
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Commissioner further asserts that the ALJ “effectively gave great weight to Dr. Kramer’s
opinion by adopting two medical opinions that highly regarded Dr. Kramer’s opinion.”
(Doc. #11, PageID #1281 (citing Doc. #6, PageID #87). However, the record reviewing
physicians that gave Dr. Kramer’s opinion great weight only indicated it was given great
weight because “it is written by an examining source and is consistent with evidence in
file.” (Doc. #6, PageID #185). The ALJ’s failure to weigh Dr. Kramer’s opinion
prevents the Court from evaluating whether his decision is supported by substantial
evidence and constitutes error under the Regulations and Rulings. See Wilson, 378 F.3d
at 546 (“‘[A] procedural error is not made harmless simply because [the aggrieved party]
appears to have had little chance of success on the merits anyway.’ To hold otherwise,
and to recognize substantial evidence as a defense to non-compliance with § 1527(d)(2),
would afford the Commissioner the ability the violate the regulation with impunity and
render the protections promised therein illusory.”) (quoting Mazaleski v. Treusdell, 562
F.2d 701, 719 n. 41).
B.

Drummond

ALJ Senander found that “there is new and material evidence that precludes
adoption of the prior mental residual capacity.” (Doc. #6, PageID #78). As a result, he
modified ALJ Withum’s assessment of Plaintiff’s mental RFC. This change in Plaintiff’s
RFC raises questions concerning res judicata.
The Sixth Circuit addressed this issue in Drummond v. Commissioner of Social
Security, holding, “the principles of res judicata can be applied against the
Commissioner. When the Commissioner has made a final decision concerning a
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claimant’s entitlement to benefits, the Commissioner is bound by this determination
absent changed circumstances.” 126 F.3d 837, 842 (6th Cir. 1997) (citations omitted).
“The burden is on the Commissioner to prove changed circumstances and therefore
escape the principles of res judicata.” Id. at 843.
After Drummond, the Commissioner issued an Acquiescence Ruling mandating
ALJs in Ohio (and other states within the Sixth Circuit) to follow Drummond by applying
res judicata to a prior assessment of a claimant’s residual functional capacity and other
prior findings made as part of a sequential evaluation. The Acquiescence Ruling
explained:
When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as
the prior claim, adjudicators must adopt such a finding from
the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled
with respect to the unadjudicated period unless there is new
and material evidence relating to such a finding or there has
been a change in the law....
AR 98–4(6), 1998 WL 283902, at *3 (Soc. Sec. Admin. June 1, 1998).
In November 2012, ALJ Withum found, “In light of [Plaintiff’s] depression, she is
capable of performing simple and complex tasks in an environment free of fast-paced
production requirements with only occasional changes in the work setting and occasional
interactions with the public, coworkers, and supervisors.” (Doc. #6, PageID #143).
ALJ Senander agreed with ALJ Withum that Plaintiff could perform simple tasks
but he did not find that she could perform complex tasks. Id. at 84. The record supports
this limitation. Dr. Tangeman and Dr. Tishler explain that Plaintiff’s additional

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diagnoses of anxiety disorder and borderline intellectual functioning resulted in
additional limitations, “namely [Plaintiff’s] ability to do complex tasks.” Id. at 173.
Similarly, Dr. Kramer opined Plaintiff could perform simple tasks. Id. at 455.
ALJ Senander made two significant alterations to ALJ Withum’s findings. ALJ
Senander (1) did not restrict Plaintiff to environments free of fast-paced production
requirements, and (2) did not find that Plaintiff needed only occasional changes in the
work setting.
In order for ALJ Senander to find Plaintiff more able to engage in work in these
two ways—more able, that is, than ALJ Withum found—Drummond required ALJ
Senander to rely on new and material evidence. 126 F.3d at 842 (“We reject the
Commissioner’s contention that the Social Security Administration has unfettered
discretion to reexamine issues previously determined absent new and additional
evidence.”).
ALJ Senander neglected to explain why he did not limit Plaintiff to environments
free of fast paced work. ALJ Withum explained in her decision, “Dr. Bonds indicated
[Plaintiff] was moderately limited in her ability to handle stress because pain and mood
caused problems working with production demands.” Id. at 145. Similarly, Dr. Kramer
noted, “she was very slow in her thought, speech, and response time. Her concentration
and focus were rather weak and she acknowledges that she has received complaints about
her past work performance because of her slowness, memory problems, and her tendency
to be distracted.” Id. at 455. Dr. Tangeman and Tishler found that she was moderately
limited in her ability to complete a normal workday and workweek without interruptions
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from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. The ALJ’s removal of this limitation is
not supported by substantial evidence.
ALJ Senander also neglected to explain why he did not find Plaintiff was limited
to only occasion changes in the work setting. Dr. Tangeman and Dr. Tishler found that
Plaintiff was moderately limited in her ability to respond appropriately to changes in the
work setting and noted that Plaintiff needed a static environment. The ALJ also did not
explain why he did not adopt that portion of the State agency doctors’ opinion and does
not provide any explanation for the change.
The fact that the ALJ omitted discussion of the new and material evidence that led
him to find Plaintiff more able than ALJ Withum found her reveals a Drummond
violation and tends to confirm that he was not exaggerating when he said, “I don’t like to
do extra work.” Id. at 103.
Accordingly, Plaintiff’s statement of errors is well taken.3
C.

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
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,
3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s challenge to the ALJ’s assessment of her credibility is unwarranted.

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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
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

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determine anew whether Plaintiff was under a disability and whether her application for
Disability Insurance Benefits 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 Kimberly Alston 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: June 19, 2017

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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