Brunkel v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Joseph Brunkel was under a "disability" within the meaning of the Social Security Act; this matter be REMANDED 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 6/19/2017. Signed by Magistrate Judge Sharon L. Ovington on 6/5/2017. (lek)

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

: Case No. 3:16-cv-215
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Joseph Brunkel brings this case challenging the Social Security

Administration’s denial of his application for period of disability and Disability Insurance
Benefits. He applied for benefits on October 10, 2012, asserting that he could no longer
work a substantial paid job. Administrative Law Judge (ALJ) George D. McHugh
concluded that he 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. #6), the
Commissioner’s Memorandum in Opposition (Doc. #9), Plaintiff’s Reply (Doc. #10), the
administrative record (Doc. #5), 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 McHugh’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since April 1, 2011. He was

forty-four years old at that time and was therefore considered a “younger person” under
Social Security Regulations. 20 C.F.R. § 404.1563(c). He has a limited education. 20
C.F.R. § 404.1564(b)(3).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ McHugh that he cannot work because
of the severe pain in his back and neck. (Doc. #5, PageID #s 87, 103). His back pain
started in 2003 or 2004, and he underwent a lumbar fusion surgery in 2006. Id. at 85-86.
In the two years before the hearing, his pain has gotten worse. Id. at 90. It starts in his
lower back and goes down his legs. Id. at 90-91. When he is in one position (standing,
sitting, laying, etc.) for too long, his back pain increases. Id. at 91. On a scale from one
to ten, his pain on an average day is a nine. Id. at 91. When he took medication
regularly, his pain was at a four or five. Id. at 104.
Plaintiff also has severe neck pain. In April 2011, his doctor, Dr. Taha, “put [him]
on permanent disability and did surgery on [his] neck.” Id. at 84-85. Additionally,
Plaintiff’s arms and fingers go numb. Id. at 87. His hands bother him every other day,
and his left hand is worse than his right hand. Id. at 89-90. He also has muscle weakness
and “can barely pick up a gallon of milk.” Id. at 87. He has difficulty reaching overhead
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and twisting from side to side. Id. at 90-91. He “can probably touch [his] toes, but it
would kill [him].” Id. at 91.
Plaintiff had medical insurance through Humana and had difficulty finding
doctors. Id. at 88. He switched to CareSource and at the time of the hearing, his doctors
were “starting to see [him] more.” Id. At the time of the hearing, he was not receiving
any treatment, but he has gone to the emergency room for pain medication. Id. at 92-93.
Additionally, he indicated that he had a pain management appointment scheduled for the
next Thursday. Id. at 88, 92.
Plaintiff also suffers from depression. Id. at 93. It began in 2011 when his father
got sick. Id. His father passed away in 2012 and then his mother passed away in May
2015. Id. When asked what his symptoms are, he reported that he gets really nervous,
jumps at loud noises, and gets aggravated with his roommate’s children. Id. at 94.
(Plaintiff lives with a friend and the friend’s two children. Id. at 82.). He sometimes has
suicidal thoughts but “won’t act on it because [he thinks] that’s a terrible way to go out.”
Id. He has crying spells approximately twice per week. Id. He has mood swings and
trouble sleeping at night. Id. He hears his mother and father talking approximately twice
per week. Id. at 95. He also has difficulty with concentration. Id.
He does not have a driver’s license. Id. at 83. He estimated that he could walk
less than a quarter of a mile and stand for ten to fifteen minutes at a time. Id. at 89. On a
typical day, Plaintiff walks “[t]wo doors down” to his friend’s house to watch television,
sit on the porch, drink tea, and talk to him. Id. at 96, 102. He is able to shower and dress
himself. Id. at 101. He washes dishes, vacuums, and does his own laundry with
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assistance from his roommate’s children. Id. He is not able to do any outside work such
as mowing the lawn. Id. at 101-02.
Plaintiff attended school through eleventh grade. Id. at 83. He is not very good at
reading or writing. Id. From 1995 through 2011, he worked as a certified electrician. Id.
at 97. To be certified, he was required to attend an eight-hour class every Saturday for
two years. Id. at 84.
B.

Medical Evidence

In June 2006, Plaintiff presented to Jamal Taha, M.D., and reported severe pain in
his back and legs. Id. at 568. An MRI revealed displacement of the lumbar intervertebral
disc without myelopathy and spinal stenosis of the lumbar region. Id. at 569, 611.
Plaintiff underwent a laminectomy on the left at L4-L5 and posterior stabilization. Id. at
609. Although he recovered as expected, he continued to have back pain and began
having numbness in his arms. Id. at 560-67.
In August 2007, a CT scan revealed severe foraminal stenosis, and Plaintiff
underwent a right C3-4 and C4-5 posterior cervical foraminotomy. Id. at 557-59.
Unfortunately, Plaintiff’s pain quickly returned. Id. at 549-53.
In May 2010, Plaintiff began treatment with Mervet K. Saleh, M.D., at the Ohio
Institute for Comprehensive Pain Management. Id. at 484. Dr. Saleh tried a lumbar
selective nerve root block several times to help alleviate Plaintiff’s pain. Id. at 484-85,
712-16. He also prescribed pain medication and muscle relaxers. Id. at 705, 709.
In April 2011, after Plaintiff’s condition had not improved with conservative
treatment, Dr. Taha performed an anterior cervical C5-6 discectomy with decompression
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of neural tissue; anterior cervical C5-6 interbody fusion; and anterior cervical plating at
C5-6. Id. at 475-77.
Plaintiff has since been evaluated by one consulting physician, Phillip Swedberg,
M.D., and two consulting psychologists, Mary Ann Jones, Ph.D., and David Chiappone,
Ph.D. Id. at 528-34, 753-70. Additionally, Plaintiff’s records have been reviewed by
eight State agency doctors, Steve E. McKee, M.D., Olga V. Pylaeva, M.D., Gary
Hinzman, M.D., Anne Prosperi, D.O., Karen Terry, Ph.D., Robelyn Marlow, Ph.D., Irma
Johnston, Psy.D., and David Demuth, M.D. Id. at 116-28, 143-83.
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.
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
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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 McHugh to evaluate the evidence connected to

Plaintiff’s application for benefits. He did so by considering each of the five sequential

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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
April 1, 2011.

Step 2:

He has the severe impairments of degenerative disc disease of the
cervical and lumbosacral spine with the residuals of surgery; affective
disorder; and anxiety.

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 “light work … subject to the following
limitations: (1) lifting and carrying up to ten pounds frequently and
twenty pounds occasionally; (2) walking or standing up to six hours;
(3) sitting up to six hours; (4) no climbing of ropes, scaffolds and
ladders; (5) occasional climbing of ramps and stairs; (6) occasional
stooping, kneeling, crouching and crawling; (7) frequent bilateral
overhead reaching; (8) no exposure to dangerous hazards such as
unprotected heights or dangerous equipment; (9) limited to
performing simple, routine and repetitive tasks, but not at a
production rate pace or with strict quotas; (10) occasional interaction
with supervisors, co-workers and the public; (11) limited to a static
work environment, with few changes in the work setting; (12) no
teamwork or tandem tasks; (13) limited to simple instructions and
simple work-related decisions; (14) no commercial driving as part of
job duties; (15) frequent bilateral handling and fingering; (16) a
sit/stand option where the person can sit for fifteen minutes of every
hour standing; and (17) in addition to normal breaks, off-task ten
percent of the workday and absent one day a month.”

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.

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(Doc. #5, PageID #s 53-62). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 62.
V.

Discussion
Plaintiff contends that the ALJ’s findings are not based on substantial evidence

because the ALJ failed to properly consider and address the medical evidence of record.
He also argues that the ALJ erred in finding that he was not credible. The Commissioner
maintains that the ALJ properly considered the medical evidence and properly evaluated
Plaintiff’s subjective complaints.
A.

Medical Evidence

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).
As a general matter, an opinion from a medical source who
has examined a claimant is given more weight than that from
a source who has not performed an examination (a
“nonexamining source”), and an opinion from a medical
source who regularly treats the claimant (a “treating source”)
is afforded more weight than that from a source who has
examined the claimant but does not have an ongoing
treatment relationship (a “nontreating source”). In other
words, “[t]he regulations provide progressively more rigorous
tests for weighing opinions as the ties between the source of
the opinion and the individual become weaker.”
Id. (quoting in part Soc. Sec. R. 96–6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2,
1996), and citing 20 C.F.R. §§ 404.1502, 404.1527(c)(1)–(2)).

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Under the treating physician rule, a treating physician’s opinion is entitled to
controlling weight if it is “well supported by medically acceptable clinical and laboratory
diagnostic techniques and … is not inconsistent with other substantial evidence in [a
claimant’s] case record.” Gayheart, 710 F.3d at 376 (citation and internal quotation
marks omitted); 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.
1. Treating Doctors: Dr. Taha & Dr. Saleh
ALJ McHugh found, “No treating or examining source reported [Plaintiff] was
disabled from all work activity.” (Doc. #5, PageID #59). However, he also
acknowledged that Dr. Taha opined that Plaintiff was unable to work from May 11, 2011
through July 29, 2011. Id. at 58, 799. He did not assign any weight to the note and
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concluded that it “falls short of the durational requirements of the Act.” Id. at 58. But,
the ALJ does not recognize that only one month later, on June 6, 2011, Dr. Taha noted, “I
agree with permanent disability.” Id. at 469. In addition, the ALJ did not address Dr.
Saleh’s notes that Plaintiff is “Permanently disabled.” Id. at 855, 859, 863, 867.
The Commissioner correctly observed that Dr. Taha’s and Dr. Saleh’s opinions
that Plaintiff is “disabled” are opinions on issues reserved to the Commissioner. (Doc.
#9, PageID #929) (citing 20 C.F.R. § 404.1527(d)). As such, the opinions “are never
entitled to controlling weight or special significance.” Soc. Sec. R. 96–5p, 1996 WL
374183, at *2 (Soc. Sec. Admin. July 2, 1996). However, the same Ruling also
mandates: “opinions from any medical source on issues reserved to the Commissioner
must never be ignored.” Id. at *3; see Johnson v. Comm’r of Soc. Sec., 535 F. App’x
498, 505 (6th Cir. 2013) (“If the treating physician instead submits an opinion on an issue
reserved to the Commissioner—such as whether the claimant is disabled …—‘his
decision need only ‘explain the consideration given to the treating source’s opinion.’’”)
(quoting Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 493 (6th Cir. 2010); quoting
Soc. Sec. R. 96–5p, 61 Fed. Reg. 34474). While the ALJ could not assign controlling
weight or special significance to Dr. Taha’s and Dr. Saleh’s opinion that Plaintiff is
“disabled,” he is not permitted to ignore it. The ALJ’s failure to consider—or even
mention—their opinion constitutes error.
Plaintiff contends the ALJ’s failure to consider these opinions and the
accompanying notes, poses a second issue: “The ALJ ignored or glossed over substantial
evidence which documented substantially more impairment than was recognized by the
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ALJ.” (Doc. #6, PageID #903). In addition, he asserts that the ALJ improperly
“‘pick[ed] and [chose]’ only the evidence that supports his position. Id. (citations
omitted). The Commissioner disagrees, contending that an ALJ must consider all of the
evidence but is not required to summarize every piece. (Doc. #9, PageID #s 923-24)
(citing Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 730 (6th Cir. 2013); Boseley v.
Comm’r of Soc. Sec., 397 F. App’x 195, 199 (6th Cir. 2010). Further, the Commissioner
argues, “the Court can infer that the ALJ considered all of the evidence of record because
he credited the opinion[s] of State agency medical consultant[s] Anne Prosperi, D.O. …”
and Phillip Swedberg, M.D. Id. at 925.
Under the Regulations, an ALJ must consider all of the evidence in a plaintiff’s
record. See 20 C.F.R. § 404.1520(a)(3). (“We will consider all evidence in your case
record when we make a determination or decision whether you are disabled.”). However,
ALJs are not required to discuss each piece of evidence in their decision, “so long as they
consider the evidence as a whole and reach a reasoned conclusion.” Boseley, 397 F.
App’x at 199 (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507-08 (6th
Cir. 2006) (per curiam)).
The ALJ’s only discussion of Plaintiff’s treating doctors is at step two. (Doc. #5,
PageID #55). Given the extensive treatment records, to say that his discussion was brief
would be an overstatement:
Chart notes from Dr. Taha, the claimant’s neurosurgeon,
indicate that he underwent an anterior cervical diskectomy
and fusion in April 2011 (Exhibit 2F, page 13). An earlier
MRI of the cervical spine had shown multilevel degenerative

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disk disease (Exhibit 2F, page 8). Further review of Dr.
Taha’s treatment notes show that an MRI of the lumbar spine
had been obtained in March 2008, which demonstrated a prior
lumbar fusion (Exhibit 5F, page 52).
Progress notes from Dr. Saleh, a pain management specialist,
reflect that the claimant was treated for complaints of chronic
pain. He was treated conservatively with pain medications,
muscle relaxants, and nerve blocks (Exhibits 3F, 6F, and
15F). Dr. Saleh obtained x-rays of the lumbar spine in
August 2012, which showed that the lumbar fusion was stable
(Exhibit 7F, page 9).
Id.
Both doctors had a protracted treatment relationship with Plaintiff. Dr. Taha
began treating Plaintiff in 2006 and continued to treat him through at least 2011. Id. at
568, 798. Similarly, Dr. Saleh’s treatment of Plaintiff began in 2010 and continued
through 2013. Id. at 484, 751.
Both doctors’ notes detailed their treatment of Plaintiff and both contain
substantial evidence in support of Plaintiff’s claims. For example, Dr. Saleh notes that
Plaintiff’s “[f]unctional impairment is severe – when present[,] it interferes with most,
but not all, daily activities.” Id. at 836. Further, he also recorded Plaintiff’s difficulty
with health insurance. For example, he “was supposed to have a NCS but we are out of
network.” Id. at 845. And, “[Plaintiff] has had psych eval for SCS and has been
approved. His co-pay is cost prohibitive and he is trying to pay down his current
balance.” Id. at 855. Significantly, Dr. Saleh notes at least five times, “Patient is not
currently working. Permanently disabled.” Id. at 750, 855, 859, 893, 867.

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Dr. Taha’s treatment notes are illuminating as well. He consistently documented
Plaintiff’s severe pain in his back and neck and numbness in his arms. Id. at 549-52, 560,
564, 566-69, 798. Dr. Taha noted in April 2011, “He has failed extensive conservative
treatment for more than 2 [years] now with [physical therapy] and traction and injections
and pain management. He is [disabled] from his pain now.” Id. at 467. And, just one
month after completing the form indicating Plaintiff was unable to work until July 29,
2011, Dr. Taha opines, “I agree with permanent disability.” Id. at 469.
There is nothing in the ALJ’s decision that indicates he considered all—or even
most—of the treating physicians’ notes. To infer that the ALJ considered all of the
treating doctor’s notes based on two short paragraphs requires unreasonable
speculation—indeed, too great of a leap of faith. Accordingly, ALJ McHugh’s findings
are not supported by substantial evidence. See Brooks v. Comm’r of Soc. Sec., 531 F.
App’x 636, 641 (6th Cir. 2013) (“Substantiality of the evidence must be based upon the
record taken as a whole. Substantial evidence is not simply some evidence, or even a
great deal of evidence. Rather, the substantiality of evidence must take into account
whatever in the record fairly detracts from its weight.”) (quoting, in part, Garner v.
Heckler, 745 F.2d 383, 388 (6th Cir. 1984)).
2. Examining Doctors: Dr. Swedberg, Dr. Jones, & Dr. Chiappone
The ALJ assigned Dr. Swedberg’s great weight because “it is consistent with the
results of the physical examination and diagnostic imaging studies.” (Doc. #5. PageID
#58) (citation omitted). He further found that the opinions of Dr. Jones and Dr.
Chiappone were entitled to “great weight as they are consistent with their reports ….” Id.
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(citation omitted). However, the ALJ questioned Dr. Jones and Dr. Chiappone’s opinion
that Plaintiff’s cognitive functioning was in the borderline range. He noted that no
psychometric tests were performed and the opinion was “inconsistent with [Plaintiff’s]
past relevant work, which the Vocational Expert classified as skilled work.” Id.
The ALJ’s bare-bones assessment of the examining doctors’ opinions constitutes
error 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 ([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.”).
The ALJ only addressed one factor: consistency. He did not provide any examples
or explanation; he merely concludes that the opinions are consistent or are not. His
conclusions are not supported by substantial evidence. For example, he gives great
weight to an opinion because it is consistent with the report. But, when a doctor’s
opinion is contained in that same doctor’s report, giving that opinion great weight
because it is consistent with the report is illogically tautological and does not constitute a
good reason for giving an opinion great weight. Similarly, the ALJ does not accept two
doctors’ opinion that Plaintiff’s cognitive functioning is in the borderline range because
the opinion is inconsistent with a vocational expert’s classification of past work. Under
the Regulations, the definition of “skilled work” does not include a minimal level of
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intellectual functioning. See 20 C.F.R. § 404.1568(c). Further, there is no evidence that
a person with borderline intellectual functioning could not, in some circumstances,
perform skilled work. Thus, the ALJ erred by failing to address the factors provided in
20 C.F.R. § 404.1527; and substantial evidence does not support his limited findings.
3. Record-Reviewing Doctors: Dr. Hinzman, Dr. Prosperi, Dr.
Johnston, & Dr. Demuth
The ALJ found that the opinions of record-reviewing physician Dr. Hinzman and
record-reviewing psychologist Dr. Johnston were entitled to no weight. (Doc. #5,
PageID #58). He provided no further explanation. In comparison, he concluded that Dr.
Prosperi’s opinion was entitled to great weight because it was consistent with the medical
evidence. Id. (citation omitted). The ALJ does not identify what evidence is consistent.
He also gave Dr. Demuth’s opinion great weight but provided no rationale and noted,
“the undersigned concludes that some additional work-related restrictions are required.”
Id. (citation omitted).
As explained above, when a treating source’s opinion is not given controlling
weight, ALJs 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. The ALJ’s failure to do so in this case
constitutes error.
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

15

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
16

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 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 Joseph Brunkel 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 5, 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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