Hill 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 Donald Hill, Jr., was under a "disability" within the meaning of the Social Security Act; this matter be REMA NDED 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 8/25/2017. Signed by Magistrate Judge Sharon L. Ovington on 8/11/2017. (lek)

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

: Case No. 3:16-cv-307
:
:
: District Judge Walter H. Rice
:
Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Donald Hill, Jr., 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 June 22, 2010,
asserting that he could no longer work a substantial paid job. Administrative Law Judge
(ALJ) John J. Berry concluded that he was not under a “disability” as defined by the
Social Security Act. The Appeals Council granted Plaintiff’s request for review, vacated
ALJ Berry’s decision, and remanded the case to an ALJ. On February 27, 2015, ALJ
Elizabeth A. Motta concluded that he was not eligible for benefits because he is not under
a “disability” as defined in the Social Security Act.

1

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

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #9), Plaintiff’s Reply (Doc. #10), and
the administrative record (Doc. #6).
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 Motta’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since April 12, 2003. He was

forty 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 id. §§ 404.1564(b)(4), 416.964(b)(4).2
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Motta that he is disabled because, “I
don’t know if you say stress on the body. I think it basically comes from me, my
thinking and I guess my reaction to taking different medications. It makes me react in a
weird way where I end up not always being there ….” (Doc. #6, PageID #114). He goes
into a “spaced out mode” and has to stop working to pull himself together. Id. at 114-15.
Plaintiff also has seizures. Id. at 116. His medication, Tegretol, has helped with
his seizures but, “I’m still having the jerks at night and still having like hallucinations or
spaced out.” Id. In addition, he has trouble sleeping. Id. at 115. He had medication to
2

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

2

help him sleep but when he took it, he did not have the energy to do his job. Id. Further,
Plaintiff has asthma. Id. at 125. He believes that his doctor “really doesn’t understand
what I’m really going through as far as the breathing and stuff.” Id. at 126. He takes
medication but does not have it consistently. Id. at 125-26. As a result, “I do a lot of
suffering, just beating on my chest and stuff.” Id. at 126.
Plaintiff struggles with lashing out at coworkers and his family members. Id. at
124. He recognizes that he has an attitude and “it’s not been great.” Id. But, “It’s like I
can’t stop it, I try.” Id.
Plaintiff has worked part-time at Neat Cleaners since 2012. Id. at 113. He is
supposed to work eighteen hours a week but usually works between twenty-three and
twenty-six hours. Id. He has to work more hours because he is unable to get everything
done in eighteen hours. Id. at 113, 122.
Plaintiff lives in an apartment with his wife. Id. at 111. He has a driver’s license
and a car but does not drive very often. Id. at 111-12. Plaintiff helps his wife with
chores. Id. at 117. However, he is not motivated to do things like he used to be. Id.
Although he goes to the store with her, he is “always in a hurry to get out of there.” Id.
He very rarely visits other people. Id. at 118. He used to go to church but does not
anymore. He explained, “I don’t know what it is about me and this paranoia. I know
everybody’s not mean, [] but … it seems like a lot of people I come across, they’re not
nice. And I just lost my motivation to go to like church …. Because I just didn’t trust a
lot of people.” Id. at 119. Plaintiff uses a computer to get information, read, and check
Facebook. Id. at 120. He loves music and can play five or six instruments. Id. at 121.
3

B.

Medical Opinions
i.

Giovanni M. Bonds, Ph.D.

Dr. Bonds evaluated Plaintiff on May 9, 2006. Id. at 1766. She noted that
Plaintiff’s mood seemed depressed and his affect was broad and appropriate to thought
content. Id. at 1769. Plaintiff acknowledged that he has trouble controlling his temper
and stated that “he does not like people who lie and he has a thing about hypocrisy.” Id.
Dr. Bonds observed, “[Plaintiff] is quite focused on what others have done wrong to him
but he shows little concern for his inappropriate behaviors and things that he has done
wrong. There was no sense of remorse or regret or reflection even about having killed
two people or having sexually molested his niece. Yet he was quite full of outrage about
how parole authorities had treated him.” Id. at 1771. At the time of the evaluation,
Plaintiff had a class action lawsuit against the parole department for false imprisonment.
Id. at 1767.
Billy Johnson II, M.A., Psychology Trainee, administered the Wechsler Adult
Intelligence Scale – Third Edition (WAIS-III), Wechsler Memory Scale – Third Edition
(WMS-III), and Gray Oral Reading Test. Id. at 1766. On the WAIS-III, Plaintiff
obtained a Verbal IQ score of 84, a Performance IQ score of 84, and a Full Scale IQ score
of 83. Id. at 1771. All of these scores fall in the low-average range. Id. On the WMSIII, he obtained an Immediate Memory Index of 63 (extremely low range), a General
(Delayed) Memory Index of 78 (borderline range), and a Working Memory Index of 74
(borderline range). Id. at 1772. The Gray Oral Reading Test revealed Plaintiff’s reading

4

comprehension score is at the 4.7 grade equivalent; his rate score is at the 7.2 grade
equivalent; and his accuracy score is on the 9.0 grade equivalent. Id.
Dr. Bonds diagnosed depressive disorder not otherwise specified and antisocial
personality disorder, and she assigned Plaintiff a Global Assessment of Functioning score
of 50. Id. at 1773. She opined that Plaintiff’s ability to relate to peers, supervisors, or the
public is moderately impaired because he has problems controlling his temper and
dealing with authority figures. Id. at 1774. His ability to understand, remember, and
follow directions is not significantly limited, and his ability to maintain attention,
concentration, persistence, and pace to perform simple repetitive tasks is not impaired.
Id. Plaintiff’s “ability to withstand the stress and pressure associated with day to day
work activities is moderately limited. [He] is easily frustrated, becomes angry easily, and
has poor coping skills. He would have difficulty dealing with work demands for speed,
accuracy, and productivity, and for getting along with other workers.” Id.
ii.

Mary Ann Jones, Ph.D.

On August 5, 2010, Dr. Jones evaluated Plaintiff. Id. at 1893. Dr. Jones observed
that Plaintiff presented as “preoccupied with his symptomology and also evidences
significant paranoid ideation and confusion.” Id. at 1896. Further, “[h]e was mildly to
moderately agitated … and wanted to make sure that the examiner understood all of his
difficulties.” Id. at 1895. She noted that he has “significant difficulty with having been
labeled a sexual predator. Apparently his niece, with whom he had the inappropriate
sexual contact, has reportedly forgiven him.” Id.

5

Dr. Jones opined that Plaintiff’s ability to relate to coworkers and supervisors is
markedly impaired. Id. at 1898. Accordingly, “[i]t is unlikely that he would be able to
relate sufficiently to coworkers and supervisors on any sustained basis (for two or more
hours at a time), even to perform simple, repetitive tasks.” Id. His ability to understand.
remember, and follow instructions is also moderately to markedly impaired, and his
ability to maintain attention, concentration, persistence, and pace to perform simple,
repetitive tasks is mildly to moderately impaired. Id. Plaintiff’s “ability to withstand the
stress and pressures associated with day-to-day work activity is judged as markedly
impaired. He shows marked mental limitations in the areas of relating and
comprehension due to the combined effects of his overall psychological condition—his
depression, his rages, etc.” Id. She diagnosed bipolar disorder not otherwise specified
“(with depression and, likely, psychotic features)” and assigned a Global Assessment of
Functioning score of 50, indicating severe symptoms. Id.
iii.

Joseph Cools, Ph.D.

On April 16, 2012, Dr. Cools testified at the hearing before ALJ Barry. Id. at 169.
Dr. Cools testified that Plaintiff had been diagnosed with a cerebral abscess that results in
a partial onset of seizure disorder. Id. at 218. He experiences an odd sensation in his
head, disorientation, and difficulty functioning for a few seconds before a seizure. Id. at
219. After a seizure, Plaintiff said he has hallucinations, but Dr. Cools indicated that he
is experiencing derealization disorder, a condition where reality does not look real. Id.
During the time between seizures, a person with the type of seizures described by
Plaintiff “usually [have] more of a kind of psych presentation.” Id. at 221. But, Dr.
6

Cools explained, “It’s very difficult to say with any degree of definitive assurance [] what
is a psych disorder and what is part of the seizure disorder.” Id. at 221-22. “In his case[,]
the case can be made for at least some of his irritability, depression, rages, mood swings,
difficulty coping with stress can possibly be attributable at least in part to his seizure
disorder. He also had a fairly chaotic childhood … in some ways.” Id. at 224.
Dr. Cools opined, “Obviously he is not totally unable to participate in his life. He
is substantially hampered.” Id. at 225. He agreed with Dr. Jones that Plaintiff is
markedly impaired in his ability to relate effectively to fellow workers and supervisors,
but he would add the general public as well. Id. at 227. After summarizing the results of
the WAIS-III and WMS-III, Dr. Cools concluded, “Materials would have to be presented
to him in a variety of modalities and probably read to him…. [and] the period of time for
him to learn material would be extended….” Id. at 229.
ALJ Berry asked if the fact that Plaintiff is a high school graduate with 150 credits
towards a college degree was “indicative of performance that’s much greater than what
these tests are predicting[?]” Id. Dr. Cools responded that he agreed, but noted that the
pattern of his scores is not typical of a person that cheated. Id. at 230. However, Plaintiff
could have had a bad day. Id.
Dr. Cools opined that Plaintiff was moderately impaired in restrictions of
activities; markedly impaired in social functioning; and mildly to moderately impaired in
maintaining concentration, persistence, and pace. Id. at 232-33. He had no episodes of
decompensation. Id. at 233. He is moderately impaired in his ability to carry out detailed
instructions and complete a forty-hour workweek. Id. at 234. He has a low frustration
7

tolerance. Id. He should not be required to switch tasks often and should be given the
opportunity to finish one task before he is asked to start another. Id. at 235.
iv.

Alice Chambly, Psy.D., & Paul Tangeman, Ph.D.

Dr. Chambly reviewed Plaintiff’s records on September 6, 2010. Id. at 263-74.
She found that he has three severe impairments: minor motor seizures, asthma, and
affective disorders. Id. at 268. Further, he has mild restrictions of activities of daily
living; moderate difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence, or pace; and no episodes of decompensation. Id.
at 269. She concluded, “I have reviewed all the evidence in [the] file and find that
although there is new [medical evidence of record,] there are no material changes to
either [Plaintiff’s] psych impairment or his functioning. This [mental residual functional
capacity (MRFC)] represents adoption of [the] ALJ decision dated 1/29/04 per
Drummond/Denard ruling.” Id. at 272.
In 2004, ALJ David A. Redmond found that Plaintiff’s “‘severe’ impairments
result in petit mal seizures, reduced attention and concentration, decreased stress
tolerance, [an] inability to follow complex written instructions, and diminished
interpersonal skills. He is limited to simple tasks that would involve only brief,
superficial contact with others.” Id. at 261.
On December 29, 2010, Dr. Tangeman reviewed Plaintiff’s records. Id. at 276-90.
He affirmed Dr. Chambry’s evaluation with only two exceptions: He found that Plaintiff
had no restriction of activities of daily living; and he added to her MRFC explanation,

8

Plaintiff “is capable of performing SRT that requires no more than brief, superficial
contact [with] others.” Id. at 283, 286.
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.
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.
9

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 Motta to evaluate the evidence connected to

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

Plaintiff has not engaged in substantial gainful employment since
April 12, 2003.

Step 2:

He has the severe impairments of asthma, minor motor seizure-like
activity possibly secondary to residuals of remote drainage of a brain
abscess, and a mood disorder.

10

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), at all relevant times through June 10, 2012 consists of
“medium work … including lifting up to 50 pounds occasionally and
25 pounds frequently, subject to the following additional limitations:
frequent postural activity, such as climbing stairs/ramps, balancing,
stooping, kneeling, crawling, and crouching; no climbing of ladders,
ropes, or scaffolds; no exposure to hazards, such as dangerous
machinery or working at unprotected heights; no exposure to
vibration; no concentrated exposure to dust, odors, gases, fumes,
chemicals or poorly-ventilated areas; simple, repetitive tasks that are
considered low stress, ie, no strict production quotas or fast pace and
involving only routine work with few changes in the work setting; no
contact with the public as part of job duties; and only occasional
contact with coworkers and supervisors. Beginning June 11, 2012,
[Plaintiff] has been restricted to the basic exertional requirements of
light work activity with postural activity limited to occasional, but all
other restrictions set forth above remain the same.”

Step 4:

There was no determination on the issue of past relevant work.

Step 5:

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

(Doc. #6, PageID #s 78-96). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 96.
V.

Discussion
Plaintiff contends that the ALJ erred in her evaluation of the medical opinions of

record. The Commissioner maintains that substantial evidence supports the ALJ’s
assessment of all of the medical opinions.

11

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 two examining psychologists,
Dr. Bonds and Dr. Jones, one testifying medical expert, Dr. Cools, and four recordreviewing doctors, Drs. Chambly, McCloud, Tangeman, and Villanueva.
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 (Soc. Sec. Admin.
July 2, 1996). 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).
[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.
12

Soc. Sec. R. 96-6p, 1996 WL 374180, at *2.
State Agency Psychological Consultants
ALJ Motta gave the opinions of Dr. Chambly and Dr. Tangeman, the State
agency record-reviewing psychological consultants, “great weight” and provided two
reasons. (Doc. #6, PageID #93). First, she found that “the record and longitudinal
history of record are more consistent with their conclusions than those of the one-time
consultative examiners or the prior medical expert.” Id. Second, ALJ Motta observed
that their “opinions rely on all of the record and their conclusions are consistent with
that evidence, including the more recent treatment records of Dr. Alwis and Dr.
Gollamudi at DayMont.” Id.
ALJ Motta provided no examples or explanation of how their opinions are “more
consistent” with the record. To the contrary, she fails to recognize several
inconsistencies.
In 2004, ALJ Redmond found that Plaintiff “is limited to simple tasks that would
involve only brief, superficial contact with others.” Id. at 259. Both consultants adopted
his decision, concluding—almost seven years later—that there have been “no material
changes to either [Plaintiff’s] psych impairment or his functioning” since ALJ
Redmond’s decision. Id. at 272. Notably, Dr. Tangeman restricted Plaintiff to
“repetitive” tasks, a limitation that was not included in ALJ Redmond’s mental
limitations. Id. at 286.
Additionally, ALJ Redmond concluded Plaintiff had no restriction of activities of
daily living and mild to moderate difficulties maintaining social functioning. Id. at 258.
13

Dr. Chambly, however, found a mild restriction of activities and moderate difficulties in
maintaining social functioning. Id. at 269. Less than four months later, Dr. Tangeman
found no restriction of activities and agreed with Dr. Chambly that he had moderate
difficulties in maintaining social functioning. Id. at 269, 283. This shows inconsistency
between ALJ Redmond and the consultants as well as between the consultants—
inconsistency that ALJ Motta failed to recognize.
Further, despite giving Dr. Chambly and Dr. Tangeman “great weight,” ALJ
Motta—without any explanation—added limitations to and removed restrictions from
their opinions of Plaintiff’s mental residual functional capacity. Specifically, in addition
to the consultants’ limitations, ALJ Motta restricts Plaintiff to “tasks that are considered
low stress, ie, no strict production quotas or fast pace and involving only routine work
with few changes in the work setting[.]” Id. at 89. She further limits him to “no contact
with the public as part of job duties[.]” Id. However, rather than “brief, superficial
contact,” she allows “occasional contact with coworkers and supervisors.” Id.
Additionally, ALJ Motta’s statement that the consultants relied on “all of the
record” is incorrect. Both consultants reviewed the record in 2010—over four years
before ALJ Motta’s decision, and in that time, the record grew substantially.
Specifically, they did not have the benefit of Dr. Cools’ testimony; treatment records
from Day-Mont Behavioral Healthcare, Dr. Jones, Community Health Centers of Greater
Dayton, Wallace-Kettering Neuroscience Institute, or the Clinical Neuroscience Institute;
or records from Kettering Medical Center, Miami Valley Hospital, and Grandview
Hospital.
14

To the ALJ’s credit, she does acknowledge that there are more recent treatment
records from Day-Mont. However, she concludes that the consultants’ opinions are
consistent with those new records and, again, she does not provide any explanation. This
finding is not supported by substantial evidence. As explained in more detail below,
treatment notes from Day-Mont illustrate Plaintiff’s relentless struggle with his mental
health conditions.
Dr. Bonds
ALJ Motta assigned Dr. Bonds’ opinion “significant weight.” Id. at 93. She
explained, “Her conclusions are consistent with the subsequent evidence confirming
that [Plaintiff] retains the ability to sustain the demands of the reduced range of
unskilled work set forth above.” Id. She does not provide any further explanation or
citation to evidence. This conclusory finding does not satisfy the an ALJ’s requirement
under the Regulations to “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.
Dr. Jones
Plaintiff contends that because Dr. Jones saw Plaintiff twice after the consultative
exam, she “can arguably be classified as a treating or examining source.” (Doc. #7,
PageID #2686). However, “the relevant inquiry … is whether [the doctor] had the
ongoing relationship with [the plaintiff] to qualify as a treating physician at the time he
rendered his opinion.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506 (6th Cir.
2006) (emphasis in original). At the time Dr. Jones provided her opinion, she had only
15

examined Plaintiff once. Thus, she is an examining source. See id. at n.10 (“[V]isits to
[the physician] after his RFC assessment could not retroactively render him a treating
physician at the time of the assessment.”).
ALJ Motta assigned Dr. Jones’ opinion “limited weight because it is inconsistent
with the information routinely set forth in the treatment notes.” (Doc. #6, PageID #93).
However, she gave Dr. Jones’ opinion “some weight to the extent that [Plaintiff] has a
mental impairment that imposes some functional restrictions.” Id. She found that Dr.
Jones’ “conclusions that [Plaintiff] experiences marked limitations or symptoms in any
area is undermined by [Plaintiff’s] lack of credibility and the treatment notes from
DayMont, which confirm that [Plaintiff] exhibits significantly greater functional capacity
than reported by Dr. Jones.” Id. More specifically, she noted, “it appears that Dr. Jones
… relied very heavily on [Plaintiff’s] reported criminal history and history of aggression
in concluding the degree of social limitation [Plaintiff] experienced. In contrast,
[Plaintiff] was always noted to be cooperative, he reported getting along with the people
at work, and he has maintained a stable relationship with his wife since they got back
together.” Id. And, Dr. Jones’ “conclusions concerning [Plaintiff’s] ability to
understand, remember, and follow instructions, as well as maintain attention,
concentration, persistence, or pace are inconsistent with her observations that [she]
performed those tasks adequately during her evaluation with no concentration or memory
problems noted.” Id.
The ALJ’s conclusions, however, are not supported by substantial evidence in the
record. Plaintiff’s treatment records reveal the perpetual problems caused, at least in part,
16

by his persistent mental health conditions. For example, in September 2013, Dr. Alwis
notes, “He keeps worrying about life/situational stresses. Relating the difficulties at work
and rambling about the extreme stress and how he copes/tolerates mostly by praying[.]
States his mind is wandering and constantly racing. [Patient] worrying about people in
general. Upset about injustices/unfairness about events. [T]alking nonstop. Racing
thoughts.” Id. at 2595. Then, for the next few months, he seems to improve: “Getting
along with people at work and with wife”; “Not worrying much”; “Does not seem to be
paranoid or delusional”; “he has done well with dealing with the employees.” Id. at
2578-80. Unfortunately, his mental health declined again in February 2014. Dr. Alwis
noted, “he is having an [attitude] at work, getting more depressed and not [feeling] good.
Also seems to be getting agitated at other people[’]s behavior.” Id. at 2567. In April
2014, Dr. Alwis noted Plaintiff’s demeanor was preoccupied and his behavior was
restless. Id. at 2551. Further, he was still grieving over his mother’s death. Id. at 2552.
The fact that Plaintiff’s symptoms improve enough at times for him to cooperate
with physicians, get along with others, and complete tasks during an evaluation does not
lead to a reasonable conclusion that he can return to work given the fluctuating nature of
his mental health problems. Cf. Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.
2001) (“That a person who suffers from severe panic attacks, anxiety, and depression
makes some improvement does not mean that the person’s impairments no longer
seriously affect her ability to function in a workplace.”); Gentle v. Barnhart, 430 F.3d
865, 867 (7th Cir. 2005) (“The administrative law judge’s casual equating of household
work to work in the labor market cannot stand.”).
17

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.
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
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
18

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 Donald Hill, Jr., 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 11, 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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