Wilson v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Lisa D. Wilson was under a "disability" within the meaning of the Social Security Act; this matter be REMANDE D 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 the case be terminated on the Court's docket. Objections to R&R due by 2/14/2018. Signed by Magistrate Judge Sharon L. Ovington on 1/31/2018. (lk)

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

: Case No. 3:16-cv-450
:
:
: District Judge Walter H. Rice
:
Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Lisa D. Wilson brings this case challenging the Social Security

Administration’s denial of her application for Supplemental Security Income. She
applied for benefits on October 10, 2013, asserting that she could no longer work a
substantial paid job. Administrative Law Judge (ALJ) Eric Anschuetz 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. #9), the
Commissioner’s Memorandum in Opposition (Doc. #12), Plaintiff’s Reply (Doc. #13),
and the administrative record (Doc. #6).

1

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

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Anschuetz’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since December 13, 2012.

She was thirty-seven years old at that time and was therefore considered a “younger
person” under Social Security Regulations. See 20 C.F.R. § 416.963(c). She has a high
school education. See 20 C.F.R. § 416.964(b)(4).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Anschuetz that she became disabled in
October 2013 because her “incontinence has gotten worse ….” (Doc. #6, PageID #108).
She has both fecal and bladder incontinence. Id. at 112. She wears diapers every day.
Id. In the past, she did pelvic floor therapy and it helped. Id. at 125. But when asked if
it helped now, she responded “[n]ot really.” Id. at 114. She takes Loperamine to stop
diarrhea but it does not help her incontinence. Id.
In a typical day, Plaintiff has to use the bathroom between fifteen and twenty
times. Id. at 124. She is usually in the bathroom for ten minutes but can be for up to
thirty minutes. Id. She has very little warning from the time she realizes she needs to go
to the bathroom and when there is a release. Id. She has a minimum of three accidents a
day. Id. She has accidents at home and out in public. Id. at 124-25. Plaintiff also has
abdominal cramping. Id. at 127.

2

Plaintiff had surgery for ovarian cancer in March 2014. Id. at 112-13, 126.
Following surgery, she underwent chemotherapy for six months. Id. at 106. At the time
of the hearing, she was cancer free. Id. at 129.
However, she developed a ventral hernia a few months after surgery. Id. at 113.
They suggested surgery for it, but, “I need to quit smoking to ensure my outcome [will]
be good.” Id.
In the last couple years, Plaintiff has seen her gastroenterologist, Dr. Wille, the
most often. Id. at 111. She sees Dr. Ashby, her urogynecologist, second most often. Id.
at 111-12. Plaintiff takes several medications: Gabapentin, Latuda, Wellbutrin,
Alprazolam, Loperamide, Dicyclomine, Omeprazole, Metoprolol, fish oil, and vitamin D.
Id. at 113.
Plaintiff attends counseling weekly with Kathy Biehn for depression and anxiety.
Id. at 112. She sees Dr. Barclay, a psychiatrist, once a month. Id. at 116. Plaintiff
believes that counseling helps but she has not found any medications that help. Id. at
116. The medications Dr. Barclay prescribes make her dizzy and drowsy. Id. at 127.
She has chronic spells of tearfulness three to four times a week. Id.
The ALJ asked Plaintiff, “If you were offered a job today, would you take it?” Id.
at 111. She responded, “If I could do it.” Id. When asked what kind of work she thought
she could do, Plaintiff retorted, “I haven’t figured that out.” Id. She further explained
she would “need a bathroom close by and have someone patient enough to let me have
frequent breaks … and if I had an accident[,] I don’t know what would happen. … I have
to go home and get cleaned up.” Id.
3

Plaintiff lives in a house with her aunt. Id. at 116. She has one son who is away at
college. Id. She has a driver’s license and usually drives about once a week to therapy.
Id. She sometimes drives to drop off prescriptions as well. Id. at 123. She estimated that
she can lift and carry “[m]aybe 20 pounds.” Id. at 117. She can walk “maybe around a
block.” Id. at 118. She smokes “[a]bout a pack a day.” Id. She usually goes to bed at 11
and wakes up around 9:30 or 10. Id. at 120. During the day, she watches TV. Id. She
also makes jewelry that she tries to sell at quarter auctions. Id. at 121-22. She does some
laundry. Id. at 122. She does not cook but she can prepare cereal and use the microwave.
Id. at 122-23. Plaintiff and her aunt go out dinner once every few months. Id. at 127.
Plaintiff testified that she is five-foot, six and one-half inches tall and weighs 315
pounds. Id. at 107. She explained that she gained “about 100 pounds before they figured
out that [she] had cancer.” Id.
B.

Medical Opinions
i.

Katherine A. Biehn, MS, LPCC-S

Marisa Borgert, Psy.D., and Ms. Biehn, Plaintiff’s counselor, wrote a letter in
January 2012 indicating that Plaintiff began counseling at their office in August 2011 and
had been seen weekly since that time. Id. at 1068. She opined Plaintiff has been
diagnosed with Major Depressive Disorder, Single Episode, Severe; Posttraumatic Stress
Disorder; and Generalized Anxiety Disorder. Id.
Ms. Biehn also included a Brief Mental Status Exam Form. Id. at 1067. She
indicated Plaintiff had a poor appearance, was depressed, tearful, and anxious; had

4

disorganized thought processes; was distractible and inattentive; and had fair
insight/judgment. Id.
In June 2012, Ms. Biehn completed interrogatories (signed off by Dr. Bruce
Kline). Id. at 414-26. She opined, “The physical, cognitive, and emotion impairments
she has been experiencing have exacerbated her depression, anxiety, and trauma
symptoms.” Id. at 416. She indicated Plaintiff was not able to be prompt and regular in
attendance, explaining, “Lisa has reported that there are mornings she wakes up and is
not able to get out of the house due to her physical and/or emotional issues.” Id. at 417.
“On a few occasions when she has been unable to get out of bed, we have had to do
phone sessions.” Id. at 418. Plaintiff is not able to sustain attention and concentration to
meet normal standards of work productivity and accuracy and is not able to understand,
remember, and carry out simple work instructions without requiring very close
supervision. Id. She is “highly distractible and her thought processes are disorganized.”
Id. at 420. Additionally, she is “significantly depressed and highly emotional.” Id. at
419. Ms. Biehn opined that Plaintiff has a marked restriction of activities of daily living;
slight difficulties in maintaining social functioning; and marked deficiencies of
concentration, persistence, or pace resulting in failure to complete tasks in a timely
manner. Id. at 422-23.
Ms. Biehn identified the following as Plaintiff’s signs and symptoms: poor
memory, sleep disturbance, mood disturbances, feelings of guilt/worthlessness, difficulty
thinking or concentrating, social withdrawal or isolation, decreased energy, intrusive
recollections of a traumatic experience, and generalized persistent anxiety. Id. at 424.
5

Plaintiff’s impairments or treatment would cause her to be absent from work more than
three times a month. Id. at 426.
In October 2015, Ms. Biehn provided another opinion. Id. at 1274. She noted that
in addition to Plaintiff’s prior impairments, she also has hoarding disorder. Id. She
opined, “The physical impairments that Ms. Wilson experiences on a daily basis greatly
affect her emotional stability. Ms. Wilson’s physical disabilities are so extreme that she
is in no way capable of functioning in any kind of work environment. Approximately
twice per month Ms. Wilson is unable to attend scheduled appointments at this office due
to urinary incontinence, fecal incontinence, or vomiting. When this occurs, Ms. Wilson
is able to do a phone session with this therapist.” Id. Further, “Ms. Wilson’s mental
disorders are rated as severe. Ms. Wilson admits to suicidal ideation on an almost daily
basis. … Ms. Wilson’s quality of life is judged as very poor. [She] is tearful in most
therapy sessions and has shown no improvement in mood.” Id. at 1275. Ms. Biehn
concluded, “It is in this Independantly Licensed Professional’s opinion that Ms. Wilson is
rendered completely unemployable due to both physical and mental limitations.” Id.
Marisa Borgert, Psy.D., also provided an opinion based on her individual therapy
with Plaintiff’s son, Jonah, and family sessions with Plaintiff and her son. Id. at 1278.
She explained, “Jonah’s mother’s health and functioning was often a topic in therapy as it
exacerbated Jonah’s symptoms of depression and anxiety.” Id. “A focus of treatment
was stress relating to Jonah having to participate in the care of his mother, as well as
increased responsibility placed upon him due to his mother’s struggles. His mother was
often unable to complete daily living requirements, as well as tasks needed to care for the
6

family and residence.” Id. Plaintiff’s son sometimes had to assist his mother “with
hygenic tasks and tasks of daily living.” Id. Dr. Borgert opined that during family
sessions, “it was clear that Ms. Wilson’s functioning was below what would be expected.
Her mental and physical diagnoses have greatly limited her ability to function ….” Id.
ii.

Robyn Hoffman, Ph.D., & Vicki Warren, Ph.D.

Dr. Hoffman reviewed Plaintiff’s records on March 30, 2014. Id. at 207-18. She
found Plaintiff had four severe impairments: asthma, gastritis and duodenitis, obesity,
and anxiety disorders. Id. at 212. She opined Plaintiff had a moderate restriction of
activities of daily living; moderate difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence, and pace; and no repeated
episodes of decompensation. Id. at 213. Dr. Hoffman’s mental residual functional
capacity “is an adoption of the ALJ decision dated 7/17/12 which is being adopted under
AR [(Acquiescence Ruling)] 98–4 (Drummond).” Id. at 216. She noted Plaintiff “can
tolerate occasional and superficial interactions with others, can carry out SRTs with no
strict production demands, [and is] able to adapt to occasional changes in the work setting
(with [clear] expectations and instructions).” Id.
On July 27, 2014, Dr. Warren reviewed Plaintiff’s records and affirmed Dr.
Hoffman’s assessment. Id. at 220-32.
iii.

Eli Perencevich, D.O., & Leslie Green, M.D.

Dr. Perencevich reviewed Plaintiff’s records on April 17, 2014. Id. at 207-18. He
opined Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds
frequently. Id. at 214. She could stand and/or walk for six hours in an eight-hour
7

workday and sit for a total six hours. Id. at 214-15. She can never climb ramps, stairs,
ladders, ropes, or scaffolds. Id. at 215. She should avoid concentrated exposure to
hazards such as machinery and heights. Id. at 216. In his additional explanation (but not
in environmental limitations section), he indicated she should avoid concentrated
exposure to extreme temps. Id. Further, she needs ready access to a bathroom. Id. He
adopted the residual functional capacity “of the ALJ decision dated 7/17/12 ….” Id. He
noted that she has a new condition—ovarian cancer—but concluded, “it was successfully
resected and she has no continued limitations from this.” Id.
On July 16, 2014, Dr. Green reviewed Plaintiff’s records and agreed with most of
Dr. Perencevich’s assessment. Id. at 220-32. However, Dr. Green found that Plaintiff
could occasionally stoop and climb ramps and stairs. Id. at 229. She should avoid
concentrated exposure to extreme cold, extreme heat, and humidity. Id. Dr. Green
further noted that she too adopted the previous ALJ’s residual functional capacity
assessment. Id. at 230.
III.

Standard of Review
The Social Security Administration provides 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. § 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

8

activity,” in Social Security lexicon. 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at
469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
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
9

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Anschuetz to evaluate the evidence connected
to Plaintiff’s application for benefits. He did so by considering each of the five
sequential steps set forth in the Social Security Regulations. See 20 C.F.R. §
416.920. He reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
October 10, 2013.

Step 2:

She has the severe impairments of obesity, gastritis, asthma, and
dysthymia.

Step 3:

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

Step 4:

Her residual functional capacity, or the most she could do despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “light work …, subject to the following
limitations: (1) lift 20 pounds occasionally and 10 pounds frequently;
(2) stand and/or walk for a combined total of 6 hours and sit for a total
of 6 hours each during an 8-hour workday; (3) never climb ladders,
ropes, or scaffolds, but can occasionally climb ramps and stairs; (4) no
limitations in the ability to balance, stoop, kneel, crouch, and crawl;
(5) The claimant must avoid workplace hazards, such as unprotected
heights and unprotected rotating machinery; (6) no exposure to
humidity and wetness, extreme cold, or extreme heat; (7) The
claimant must have ready access (proximity) to a bathroom while at
work; (8) limited to performing simple, routine, repetitive tasks, but
not at a production rate with no more than occasional work-related
decisions; ([9]) the claimant can adapt to occasional changes in the
workplace setting; and the claimant is limited to occasional interaction
with supervisors, coworkers, and the public.”
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Step 4:

She has no past relevant work.

Step 5:

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

(Doc. #6, PageID #s 74-90). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 90.
V.

Discussion
Plaintiff contends that the ALJ erred in not finding a worsening of Plaintiff’s

physical and mental impairments since the previous ALJ’s decision. Further, she asserts
that the ALJ failed to give appropriate weight to her treating therapist’s opinion. The
Commissioner maintains that the ALJ properly evaluated Plaintiff’s impairments and
substantial evidence supports the ALJ’s evaluation of the opinion evidence.
A.

Plaintiff’s Impairments

Plaintiff filed a prior application for Social Security benefits in October 2010.
(Doc. #6, PageID #74). On July 17, 2012, ALJ Jessica Inouye concluded Plaintiff was
not under a disability and the Appeals Council affirmed her decision. Id. at 184-96. In
the present case, ALJ Anschuetz found, “The current residual functional capacity is
substantially similar to that found by the prior Administrative Law Judge and reflects the
fact that there has been no material change in [Plaintiff’s] condition since the date of the
prior decision in this case. Therefore, this decision is consistent with Drummond v.
Commissioner of Social Security, … and Social Security AR 98-4(6).” Id. at 74.
The Sixth Circuit held in Drummond, “When the Commissioner has made a final
decision concerning a claimant’s entitlement to benefits, the Commissioner is bound by
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this determination absent changed circumstances.” Drummond v. Comm’r of Soc. Sec.,
126 F.3d 837, 842 (6th Cir. 1997) (citations omitted). 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).
ALJ Anschuetz explained, “With very minor exceptions, the record does not
document a significant change in [Plaintiff’s] condition since the prior ALJ Decision.”
(Doc. #6, PageID #84). But Plaintiff disagrees: “the current medical record supports a
finding of a worsening in Ms. Wilson’s physical and mental impairments.” (Doc. #9,
PageID #1788). She points to her lower back problems, mixed incontinence, hernias,
residuals of ovarian cancer, and mental impairments. Id. at 1788-91.
The ALJ did acknowledge Plaintiff’s history of ovarian cancer but concluded that
it “was surgically and medically treated with no recurrence or residual limitations
remaining after 12 months.” (Doc. #6, PageID #84). The record shows that Plaintiff was
diagnosed with cervical cancer, and in March 2014, she underwent a total abdominal
12

hysterectomy. Id. at 869-71. She completed chemotherapy in August 2014. Id. at 1151.
She remains cancer free. Id. at 129.
Since Plaintiff’s surgery, she has hernias. In August, 2014, a CT scan of
Plaintiff’s pelvis revealed two midline ventral hernias. Id. at 1174-75. In May 2015,
Plaintiff presented to Dr. Christopher Schneider with a significant increase in abdominal
pain. Id. at 1297. Dr. Schneider found tenderness in Plaintiff’s abdomen, and he noted,
“Multiple ventral hernias along the incision. At least 2 large incarcerated ones. Painful
to deep palpation.” Id. He indicated that he had “mixed feelings about fixing her hernia”
because she had three major risk factors: obesity, steroid use, and smoking. Id. at 1308.
Dr. Schneider informed Plaintiff that if she quit smoking, he would perform the surgery
as he thought “it is reasonable to repair despite her obesity.” Id. at 1298.
The ALJ concluded Plaintiff’s hernias were not a severe impairment: “Given the
recent occurrence of this minor condition, its easy treatability, and [Plaintiff’s] failure to
follow her treating surgeon’s instructions, this cannot reasonably be considered severe
within the meaning of the Social [S]ecurity Act.” Id. at 78. The ALJ, however, provided
no basis for his conclusion that Plaintiff’s hernias were minor or easily treatable. The
State agency physicians reviewed Plaintiff’s records prior to the diagnosis and Plaintiff’s
treating physicians did not indicate her hernias are minor or easily treatable.
Plaintiff contends that the ALJ erred in not considering her hernias a severe
impairment. Likewise, she asserts that he erred in not finding her incontinence a severe
impairment. But, even if the ALJ erred at Step Two, generally, an ALJ does not commit
reversible error by finding a non-severe impairment as long as: (1) the ALJ also found
13

that the claimant has at least one severe impairment; and (2) the ALJ considered both the
severe and non-severe impairments at the remaining steps in the sequential evaluation.
See Maziarz v. Sec’y of Health and Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); see
also Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007); Nejat v. Comm’r of Soc. Sec.,
359 F. App’x 574, 577 (6th Cir. 2009); Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801,
803 (6th Cir. 2003) (“[O]nce the ALJ determines that a claimant has at least one severe
impairment, the ALJ must consider all impairments, severe and non-severe, in the
remaining steps.”).
In the present case, the ALJ found several other severe impairments. Thus, the
issue is whether the ALJ considered both the severe and non-severe impairments at the
remaining steps in his decision. But, Plaintiff’s severe and not-severe impairments
cannot only be considered individually: “‘[O]nce one severe impairment is found, the
combined effect of all impairments must be considered, even if other impairments would
not be severe.’” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 190 (6th Cir. 2009)
(quoting White v. Comm’r of Soc. Sec., 312 F. App’x 779, 787 (6th Cir. 2009)).
The ALJ does appear to consider limitations from Plaintiff’s hernias: “Taking into
consideration [Plaintiff’s] abdominal issues, even including her history of ovarian cancer
and current minor ventral hernia condition, it is appropriate to again restrict [Plaintiff] to
the basic exertional requirements of light work activity.” (Doc. #6, PageID #84).
The ALJ also addressed Plaintiff’s incontinence: “Taking into consideration
[Plaintiff’s] incontinence to the extent documented by the medical record, she must be
afforded ready access, or proximity, to a restroom while at work in the event she must go
14

with little warning.” Id. at 85. However, the ALJ discounts Plaintiff’s reports because
“no treating or examining source has observed incontinence or her reported accidents.”
Id. Taken at face value, it is absurd to require a physician to actually observe a patient’s
incontinence before finding she has incontinence and needs ready access and proximity to
a restroom. The medical record also includes a note from Plaintiff’s family-care
physician noted in October 2013, “[I] suggested she talk with [Dr. Ashby] as her fecal
and urinary incontinence makes her unemployable.” Id. at 570-73. But the ALJ does not
address it.
The ALJ, moreover, does not give any indication that he considered the combined
effect of Plaintiff’s hernias and incontinence. Dr. Schneider noted Plaintiff’s hernias
caused a significant increase in her abdominal pain. Id.at 1297. Plaintiff testified that
when she uses the bathroom, it can take anywhere from ten to thirty minutes. Id. at 124.
And if she had an accident at work, “I have to go home and get cleaned up.” Id. at 111.
Ms. Biehn, Plaintiff’s counselor, explained, “Ms. Wilson has reported many occasions
where she has needed the assistance of her family to help her clean up after her
incontinence. Cleaning up after an ‘accident’ has become especially difficult since the
development of a hernia in her abdomen. … The hernia makes it difficult for her to
maneuver her body in a way that allows her to reach and thoroughly clean her body after
an accident.” Id. at 1275. This is supported by Plaintiff’s son’s psychologist, who noted
“Jonah reported times during which he would have to care for his mother by assisting

15

with hygienic tasks and tasks of daily living.”2 Id. at 1278. Because the ALJ did not
consider the limitations—specifically, the time and hygiene assistance—resulting from
Plaintiff’s hernia in combination with her incontinence, substantial evidence does not
support the ALJ’s decision.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3
B.

Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
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

2

The ALJ gave this statement no weight because Dr. Borgert “provided individual therapy for
[Plaintiff’s] son, Jonah Wilson, until August of 2011 ….” (Doc. #6, PageID #87). Further, Dr. Borgert
“stated only she was included in some family sessions and there are not treatment records documenting
those sessions or the information discussed or observations made.” Id. at 88. However, the ALJ misread
Dr. Borgert’s opinion. She indicates, in her letter dated October 19, 2015, that Plaintiff’s son “was been
seen in my office for individual therapy from 2011 until he departed for college in August of this year.”
Id. at 1278 (emphasis added). Further, there is no indication that the ALJ considered that between June
2015 and August 2015, Ms. Biehn noted at six appointments with Plaintiff that Plaintiff’s son and Dr.
Borgert were present for joint sessions “to work on their relationship.” See id. at 1706-07, 1709-10,
1712-13.
3

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

16

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
determine anew whether Plaintiff was under a disability and whether her application for
Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;
17

2.

No finding be made as to whether Plaintiff Lisa D. Wilson 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: January 31, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

18

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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