Schleiger v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS: 1) The Commissioner's non-disability finding be reversed; 2) The case be REMANDED to the Social Security Administration for payment of benefits; 3) The case be terminated on the docket of this Court. Objections to R&R due by 5/14/2019. Signed by Magistrate Judge Sharon L. Ovington on 4-30-19. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BILLY JOE SCHLEIGER,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:18-cv-00016
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS 1
I.

Introduction
Plaintiff Billy Joe Schleiger was severely injured in a motor-vehicle accident in

2008. He underwent surgery to repair his fractured left ankle and his left-leg injuries.
The surgery involved placing metal plates in his left ankle and metal rods and plates in
his right leg. He eventually recovered enough to believe he could start working again, so
he took a new job as a truck driver for a delivery service. Yet, he continued to suffer
from pain and swelling in his lower legs. This is unsurprising given the seriousness of
his ankle and leg injuries and the surgically implanted hardware attached to his bones
with screws.
Plaintiff lasted as a truck driver until June 2012 when the swelling and constant
pain in his lower extremities became too severe. Two years later, he applied for
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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Disability Insurance Income and Supplemental Security Income asserting that he became
disabled on June 1, 2012.
The Social Security Administration denied his applications based mainly on the
decision of Social Security Administrative Law Judge (ALJ) Mark Hockensmith that
Plaintiff was not under one or more disabilities. Plaintiff presently contends that ALJ
Hockensmith failed to reasonably evaluate his work abilities and credibility. He asks the
Court to overturn ALJ Hockensmith’s decision and award him benefits at least from the
date he turned age fifty “as the evidence regarding his profound lower extremity
problems overwhelmingly supports a restriction to sedentary work.” (Doc. #7, PageID
#749).
The Commissioner contends that a remand is unwarranted because the ALJ
properly relied on the state agency medical consultants’ opinions, and substantial
evidence supports his assessment of Plaintiff’s work abilities and credibility.
II.

Background
Plaintiff was forty-seven years old on his asserted disability onset date of June 1,

2012. This placed him in the category of a “younger” person under social security law.
In 2014, he aged into the category of a person “closely approaching advanced age.” He
graduated from high school and worked not only as a truck driver but also as a
maintenance worker in a saw mill for ten years plus other work.
Before issuing his non-disability decision, ALJ Hockensmith held a hearing during
which Plaintiff testified. He explained that when he first began to work as a truck driver,
things were “okay.” His pain eventually increased to the point he couldn’t sleep and
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didn’t feel safe driving. (Doc. #6, PageID #71).
In June 2013, Plaintiff underwent surgery to address his ongoing problems with
the surgical implants. He testified that at the time of the ALJ’s hearing (August 2016),
the knee doesn’t function properly and will give at times and where my
femur bone … broke and come out through the skin, it ripped all the muscle
and all that stuff and I’ve got scar tissue in there that just—the older I get,
the more painful it gets … every day.
Id. at 74.
Plaintiff’s swelling and pain allow him to sit for only 15 minutes at a time. He
then needs to stand, walk around for a minute then sit in a different chair or start using a
heating pad. Cold and rainy days make him feel worse. Id. at 75.
Plaintiff tried to walk around as a physical therapist suggested but when he
finished walking around, “then it was bad.” Id. He would take 6 to 8 Tylenol each day.
Although he could mow the lawn in the past, he could no longer do so. The only
yardwork he did was to “use the weed-eater occasionally for a little bit.” Id. He had tried
to use a cane but it did not seem to help. He noted, “I’m never up that long of periods of
time.” Id. at 77.
Plaintiff still felt stabbing pain in his left ankle but not like the pain he had
experienced before a surgeon removed the hardware from his left ankle in 2013. He
testified, “the screws had broke[n] and the plate was moving around and they couldn’t
remove it all, since it was going through the bone and they said it would be a lot more
extensive to take it all out, to where I’d be a lot better off, if they just took the stuff that
was just floating around inside my ankle.” Id.

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The most comfortable position for Plaintiff is lying on his left side. Id. at 77-78.
He lies back in a recliner 18 hours a day, mostly watching TV. Id. at 79, 82. He testified,
“the recliner is better than sitting up because I don’t have the pressure on the backs of my
legs, like I do in this chair. 2” Id. at 82 (footnote added). When he stands for a long
period of time, his legs swell very noticeably. It helps him a little bit to take a warm bath.
Id. at 80. If he stands for longer than he should, he’ll “start hurting real bad.” Id. He
experiences a really bad day four to five days a week. Taking Vicodin twice a day, as it
is prescribed for him, makes his mind “fuzzy.” Id. at 82. When this happened, he would
rest in the recliner and watch TV. His prescription medications also include Gabapentin
and the occasional Tylenol.
In addition to Plaintiff’s testimony and medical evidence, ALJ Hockensmith
reviewed the opinions provided by three physicians: B.T. Onamusi, M.D.; Rannie Amiri,
M.D.; and Leon D. Hughes, M.D.
In January 2015, Dr. Onamusi met and evaluated Plaintiff for the Ohio
Department of Disability Determinations (DDD). (Doc. #6, PageID #s 457-64). Based
on his one-time evaluation, Dr. Onamusi opined that Plaintiff could function at the
“sedentary to light physical demand level as defined in the Dictionary of Occupational
Titles.” (Doc. #6, PageID #463).
Two months later, Dr. Amiri reviewed Plaintiff’s medical records for the DDD.
He concluded that Plaintiff could perform a limited range of light work by occasionally
lifting and carrying 20 pounds; frequently lifting and carrying 10 pounds; standing and
2

Plaintiff sat in a chair as he testified.

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walking about 6 hours in an 8-hour workday; sitting about 6 hours in an 8-hour workday
(with normal breaks); and unlimited pushing and pulling (including operation of foot and
hand controls. Id. at 100. Dr. Amiri further opined that Plaintiff could frequently climb
ramps or stairs; occasionally climb ladders, ropers, or scaffolds; frequently kneel or
crouch (bending at his knees); and occasionally crawl. Id. at 101. Dr. Amiri also thought
about Dr. Onamusi’s opinions and gave them “great weight as the report appear[s] to be
an accurate reflection of the [claimant’s] limitations.” Id. at 100.
In May 2015, Dr. Hughes reviewed the record and offered the same opinions as
Dr. Amiri about Plaintiff’s functional limitations. Id. at 127-28. Dr. Hughes also placed
“other weight” on Dr. Onamusi’s opinion by finding it “quite vague” without supporting
explanation. Id. at 128. Dr. Hughes’ “quite vague” finding is a stone thrown from a
glass house: it, itself, is quite vague because it is unsupported by any explanation or
further comment.
III.

“Disability” and The ALJ’s Decision
To be eligible for Disability Insurance Benefits or Supplemental Security Income

a claimant must be under a “disability” as the term is defined by the Social Security Act.
See 42 U.S.C. §§ 423(a), (d), 1382c(a). The definition of the term “disability” is
essentially the same for both benefit programs. See Bowen v. City of New York, 476 U.S.
467, 469-70 (1986). Narrowed to its statutory meaning, a “disability” includes only
physical or mental impairments that are both “medically determinable” and severe
enough to prevent the applicant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies.
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See id. at 469-70.
As noted previously, it fell to ALJ Hockensmith to evaluate the evidence
connected to Plaintiff’s applications. He did so by conducting the 5-step sequential
evaluation mandated by Social Security regulations. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). He ultimately concluded that Plaintiff was not under a benefits-qualifying
disability based on the following main findings: Step 2: Plaintiff’s severe impairments
include “residuals of 2008 right leg and left ankle repair surgeries and subsequent 2013
hardware removal; peripheral neuropathy.” (Doc. #6, PageID at 42). Step 3: His
impairments, alone or together, did not automatically qualify him for benefits. Id. at 4445.
Step 4: The most Plaintiff could do despite his impairments—his residual
functional capacity see Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir.
2002)—was a light level of work with 5 limitations: “(1) no climbing of ladders, ropes, or
scaffolds; (2) frequent climbing of ramps or stairs; (3) frequent kneeling and crouching;
(4) occasional crawling; and (5) occasional pushing/pulling with the right lower
extremities.” (Doc. #6, PageID #45). Given these limited abilities, Plaintiff could no
longer perform his past work as a truck driver or maintenance worker. Id.
Step 5: Considering the combination of Plaintiff’s residual functional capacity,
high-school education, work experience, and age, he could still perform a significant
number of jobs available in the national economy. This included light jobs such as mail
sorter, labeler, and photocopy machine operator. Id. at 52. His ability to perform such

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jobs meant that he was not under a benefits-qualifying disability, in the ALJ’s view. Id.
at 52-53.
IV.

Judicial Review
The Social Security Administration’s denial of Plaintiff’s applications for benefits

is subject to judicial review along two lines: whether ALJ Hockensmith applied the
correct legal standards and whether substantial evidence supports his findings. Blakley v.
Comm'r of Social Sec., 581 F.3d 399, 405 (6th Cir. 2009); see Bowen v. Comm’r of Social
Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if
the record contains substantial evidence supporting the ALJ’s factual findings. Rabbers
v. Comm’r of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
Substantial-evidence review does not ask whether the Court agrees or disagrees with the
ALJ’s factual findings or whether the administrative record contains evidence contrary to
those factual findings. Rogers v. Comm’r of Social Sec., 486 F.3d 234, 241 (6th Cir.
2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead,
substantial evidence supports the ALJ’s factual findings when a “‘reasonable mind might
accept the relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at
406 (quoting Warner v. Comm’r of Social 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.
V.

Discussion
Plaintiff contends that the ALJ’s assessment of his residual functional capacity
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fails to reasonably reflect the limitations caused by his well-documented lower-leg
injuries. He reasons, in part, “The idea that Plaintiff has either no meaningful limitations
whatsoever in weight-bearing activities or that he can spend a full two-thirds of every
workday ascending stairs appears inconsistent with even ALJ Hockensmith’s own
summation of the record’s evidence.” (Doc. #7, PageID #740 (citing PageID #s 46-49)).
Plaintiff also argues that the ALJ unreasonably and erroneously relied on the DDD
physician’s—Dr. Onamusi’s—opinions.
The Commissioner argues that the ALJ properly assigned moderate weight to the
DDD record-reviewing physicians’ and Dr. Onamusi’s opinions that Plaintiff could
perform light work with certain limitations. The Commissioner reasons that the ALJ (1)
adequately analyzed the applicable regulatory factors; (2) acknowledged that the opinions
were from “DDD reviewing physicians”; (3) considered the “consistency” factor; (4)
extensively and accurately described the substantial evidence supporting his view of
Plaintiff’s “generally unremarkable” x-rays.
Social security regulations provide “progressively more rigorous tests for
weighing opinions…,” provided by a physician, “as the ties between the source of the
opinion and the individual become weaker.’ ” Gayheart v. Comm’r of Social Sec., 710
F.3d 365, 375 (6th Cir. 2013) (quoting Soc. Sec. R. 96–6p, 1996 WL 374180, at *2 (July
2, 1996)). For example, nontreating source opinions “are weighed by stricter standards,
based to a greater degree on medical evidence, qualifications, and explanations for the
opinions, than are required of treating sources.” Soc. Sec. R. 96–6p, 1996 WL 374180, at
*2.
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To determine how much credit to give nontreating sources, ALJs must weigh their
“opinions based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not deemed
controlling.” Gayheart, 710 F.3d at 375 (citing 20 C.F.R. § 404.1527(c)). “Other factors
‘which tend to support or contradict the opinion’ may be considered in assessing any type
of medical opinion. Id. (quoting § 404.1527(c)(6)).
The ALJ also weighed the opinions of one-time DDD consultative physician Dr.
Onamusi. The ALJ reported:
Based on [his] evaluation, Dr. Onamusi opined that the claimant was
capable of functioning at a sedentary to light physical demand level. I give
moderate weight to the opinions of the DDD consulting physician, to the
extent that his assessment is consistent with [a] limitation to light work.
Id. at 50 (footnote added).
Error of Law: The ALJ erred as a matter of law by first assessing Plaintiff’s
residual functional capacity (for limited light work), then using that assessment to weigh,
and place moderate weight on, Dr. Onamusi’s opinions. This reverses the required
analysis. Under Social Security regulations, medical evidence—including physicians’
opinions—informs the ALJ’s assessment of a claimant’s residual functional capacity. 20
C.F.R. § 404.1545(a)(3) (“We will consider any statements about what you can still do
that have been provided by medical sources ….”); see also Soc. Sec. R. 96-8p, 1996 WL
374184, *7 (July 2, 1996) (“The [residual functional capacity] assessment must always
consider and address medical source opinions….”); Moruzzi v. Comm’r of Soc. Security,
No. 18-3320, 2018 WL 6721346, at *8 (6th Cir. 2018) (“In formulating a residual
functional capacity, the ALJ evaluates all relevant medical and other evidence and
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considers what weight to assign to treating, consultative, and examining physicians'
opinions.”). The ALJ’s assessment of a claimant’s residual functional capacity plays no
role in weighing physicians’ opinions. Indeed, the factors pertinent to medical-opinion
weighing omit mention of a claimant’s residual functional capacity. See 20 C.F.R. §
404.1527(c) (describing relevant weighing factors without mentioning residual functional
capacity); see also Soc. Sec. R. 96-6p, 1996 WL 374180 (July 2, 1996) (same). The
ALJ’s reversed reasoning applied incorrect legal criteria to weigh Dr. Onamusi’s opinion.
Unsupported Findings: The ALJ, however, declined to limit Plaintiff to sedentary
work by relying on some of Plaintiff’s self-reported daily activities. The ALJ explained
that throughout the record and during his testimony, Plaintiff “reports … performing
daily activities, such as mowing the lawn, carrying bags of salt down the basement stairs,
going for two to three mile walks, and caring for his elderly mother. Additionally, mild
findings on diagnostic testing, including x-rays and EMG, do not support limitation to
sedentary work.” (Doc. #6, PageID #60). Id. For these reasons, the ALJ declined to
credit Dr. Onamusi’s opinion that Plaintiff could perform the lower range—sedentary
work—of sedentary to light work.
The ALJ took a similar approach to weighing, and placing “moderate weight” on,
the opinions provided by record-reviewing physicians Dr. Amiri and Dr. Hughes. The
ALJ reported:
Dr. Amiri opined that the claimant was capable of light work with
occasional climbing of ladders, ropes or scaffolds; frequent climbing of
ramps or stairs, kneeling, and crouching; and occasional crawling. [Dr.]
Hughes…, also reviewed the evidence…, and affirmed Dr. Amiri’s
assessment (Exhibits 5A and 6A)…. Limiting claimant to a reduced range
of light work is consistent with his relatively conservative treatment
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history, generally unremarkable findings in x-rays of the bilateral lower
extremities, and an EMG report showing only mild peripheral neuropathy.
However, more weight cannot be given because I have given weight to the
claimant’s subjective reports of ongoing pain in his right leg and have
further limited him to only occasional pushing/pulling with right lower
extremity.
(Doc. #6, PageID #s 49-50).
Substantial evidence does not support these reasons. The ALJ unreasonably
describes the medical evidence as showing that Plaintiff had “relatively conservative
treatment.” Plaintiff’s allegations of disabling pain rest upon a foundation of not only
reconstructive surgery with the implantation of hardware in both of his lower
extremities— including screws inserted into bone—but also subsequent surgery to
remove the hardware in his ankle when it failed. See Doc. #6, PageID #s 375-77, 548-51.
Following the removal surgery, Plaintiff’s course of treatment involved not only
consultations with his primary care provider and batteries of diagnostic testing, but also
physical therapy, prescriptions for heavy duty pain killers (like Hydrocodone), and an
extended course of treatment with a pain-management specialist. The ALJ’s
characterization of such extensive treatment as “conservative” is unreasonable.
Additionally, the ALJ misused the phrase, “relatively conservative,” to diminish the
seriousness of Plaintiff’s medical treatment. The phrase “relatively conservative”
without further explanation—which the ALJ did not provide—is a euphemism for “not
serious.” The record does not support this in view of the initial seriousness of his
injuries, the invasive surgery required to repair his lower extremities, the presence of
surgical hardware in his lower extremities (some of which failed), ineffective
treatment(including physical therapy), and the need for treatment with Hydrocodone and
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other prescription medications. In these circumstances, even so-called conservative
treatment aggravated Plaintiff’s condition. Initial improvements were noted, for
example, after physical therapy, but physical therapy also aggravated his swelling and
pain, thus providing him with only a temporary reduction in his symptoms. Similarly, his
prescribed narcotic medication (e.g., Hydrocodone) provided him with only temporarysymptom relief. Because the ALJ credited the opinions of Drs. Amiri and Hughes
without addressing these aspects of Plaintiff’s treatment, substantial evidence does not
support his characterization of Plaintiff’s treatment as “relatively conservative.” Cf.
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990) (“A finding of substantial evidence
must be ‘based on the record as a whole’ and must “take into account whatever in the
record fairly detracts from its weight.” (citations omitted)); Brooks v. Comm’r of Social
Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (“a substantiality of evidence evaluation does
not permit a selective reading of the record.” (citations omitted)).
Additionally, substantial evidence does not support the ALJ’s conclusion that
“generally unremarkable findings in x-rays of the bilateral lower extremities” merited the
ALJ’s decision to accept the opinions of Drs. Onamusi and Amiri. (Doc. #7, PageID
#50). Rather than being “generally unremarkable,” imaging of Plaintiff’s left foot, even
well after his 2013 surgery, revealed a metallic density, a bone-screw-hole defect
surrounded by post-traumatic cystic changes, hypertrophic calcification along Plaintiff’s
tibia, and some soft tissue swelling. Id. at 466. The ALJ improperly overlooked these
aspects of Plaintiff’s imaging while making his “generally unremarkable” finding. And,
the ALJ improperly assumed the role of medical expert by applying his own lay
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interpretation of the medical-imaging results to support his conclusion that “generally
unremarkable.” Cf. Simpson v. Comm. of Soc. Sec., 344 F. App’x 181, 194 (6th Cir.
2009) (citing, in part, Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not
succumb to the temptation to play doctor and make their own independent medical
findings[.]”)).
ALJ Hockensmith also errs in finding that Dr. Amiri’s and Dr. Hughes’ opinions
merited reliance because Plaintiff’s January 2016 EMG showed only mild neuropathy.
(Doc. #7, PageID #50; see PageID #620). Yet, these physicians engaged in a limited
consideration of Plaintiff’s constant, ongoing orthopedic symptoms caused by his lowerextremity trauma and his resulting invasive surgeries, and they did not discuss, or
indicate that they considered combination of these problems with Plaintiff’s mild
neuropathy. See PageID #s 100-01, 127-28. Further, Plaintiff does not allege disabling
limitations secondary to lower-extremity neuropathy, but due to his persistently
worsening residuals caused by the severe trauma he suffered in his lower extremities, his
resulting invasive surgeries, and the failure of his 2013 surgery to ameliorate his leftankle pain and swelling. See id. at 70-80. Consequently, it was unreasonable to rely on
Plaintiff’s EMG test results to credit these physicians’ opinions.
Returning to Dr. Onamusi’s opinion that Plaintiff could perform a range of
sedentary to light work, the ALJ agreed that Plaintiff could perform sedentary work based
on his lack of credibility. The ALJ found that Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of [his] symptoms are not entirely consistent
with the medical evidence and other evidence in the record ….” Id. at 46. To the extent
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the ALJ required Plaintiff’s statements regarding his symptoms to be consistent with all
the medical evidence and other evidence, the ALJ erred. Although the “consistency” of
an individual’s self-described symptoms with other evidence is a “strong indication of …
credibility…,” Soc. Sec. R. 96-7p, 1996 WL 374186, *5 (July 2, 1996), the regulations
require a comparative analysis of the evidence to discover “the extent to which [the
individual’s] symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence….” 20 C.F.R. § 404.1529(a).
Even if the ALJ did not err in this manner, substantial evidence does not support
his assessment of Plaintiff’s credibility or his conclusion that Plaintiff is not limited to
sedentary work.
“[A]n ALJ’s findings based on the credibility of the applicant are … accorded
great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility.” Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997) (citing Villarreal v. Sec'y of Health & Human Servs., 818
F.2d 461, 463 (6th Cir. 1987)); see Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th
Cir. 2007). Still, substantial evidence must support an ALJ’s credibility assessment.
Cruse, 502 F.3d at 542 (citing Walters, 127 F.3d at 531).
The ALJ explained that limiting Plaintiff “to sedentary work is not warranted
given his reports throughout the record and at [the] hearing of performing activities of
daily living such as mowing the lawn, carrying bags of salt down the basement stairs,
going for two to three mile walks, and caring for his elderly mother….” Id. at 50. The
ALJ observed:
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[Plaintiff’s] treatment records show that he reported mowing lawns
throughout physical therapy and that he was able to carry bags of salt down
the stairs. At [the] hearing, he indicated that he had not been able to mow
lawns for two to three years and had thrown bags of salt down the stairs,
but these reports are not consistent with his progress notes. He also
indicated that he was walking two to three miles at a time. The
performance of such activities on a regular and continuing basis indicates
that the claimant remains capable of performing work involving the abovedescribed reduced range of light exertion with no climbing of ladders, ropes
or scaffolds and only frequent climbing of ramps or stairs. He is also
capable of frequent kneeling and crouching; occasional crawling; and
occasional pushing/pulling with the right lower extremity [sic].
(Doc. #7, PageID #49).
The ALJ’s attempt to contrast Plaintiff’s testimony about his ability to sit or drive
for extended periods with his ability, at one time, to care for his elderly mother overlooks
significant details in his testimony. But, Plaintiff explained to the ALJ that “at the end,
she [his mother] was falling a lot … and she had a walker, so I would always help her…,
try to get upon [sic] or get her close to a chair, to where she could…, between the chair
and myself, get her up.” (Doc. #7, PageID #67). He would bring clothes to her but did
not help her change clothes (she could still change clothes by herself). Plaintiff would do
laundry but fell once taking it down the basement stairs. He consequently did this by
taking one step at a time, favoring his left leg so his right leg—with its pins and metal
plates—would not bear the load. Id. at 69. He would also throw the basket of laundry
downstairs. He further testified, “any days that I did laundry, by the time I was done, my
day was shot for the rest of the day because I’d have to go [lie] down with a heating pad.”
Id. at 81. Plaintiff tried to go for walks, but afterward, “it was bad. I was six and eight
Tylenol a day.” Id. at 76. He never carried a bag of salt down the stairs; he would roll
them down. Id. At the time of the ALJ’s hearing, he had not mowed the lawn for 2 to 3
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years and only used a weed-eater occasionally for a little bit. Id. The ALJ did not ask
Plaintiff about how long or how often he could engage in lawn mowing. And Plaintiff
testified that he used a self-propelled mower. Id. When Plaintiff cooked for his mother,
he did not make big meals. He instead made simple meals, so he wouldn’t have to be up
for long periods of time. Id. at 81. In light of this evidence, which the ALJ overlooked
or ignored, Plaintiff’s daily activities do not reasonably support the ALJ’s finding that
Plaintiff could perform these activities on a regular and sustained basis as required to
sustain either sedentary or light work. See Soc. Sec. R. 96-6p, 1996 WL 374184, *2 (a
person’s residual functional capacity is his or her maximum ability to perform sustained
work activities in a work setting on a regular and continuing basis, meaning 8 hours a
day, 5 days a week, or an equivalent schedule.).
The ALJ also unreasonably contrasts Plaintiff’s testimony regarding his activities
with the contents of his physical-therapy progress notes. For instance, notes from July
2014 indicating that Plaintiff had increased knee pain after attempting to mow. These
notes are not inconsistent with his testimony that, as of November 2016, he had not
mowed in two or three years. See Doc. #7, PageID #s 76, 437-41. Attempting to mow,
says nothing about how long he attempted to mow, or whether he was at all successful in
his attempt. Similarly, Plaintiff’s July 2014 report that he had “overdone it” by
attempting to walk two-to-three miles one time is consistent with his explanation that he
is unable to walk long distances without significantly exacerbating his symptoms. See id.
at 441 (“increased R knee pain due to extended walking”).
The ALJ also finds that Plaintiff was not fully credible because he reported to his
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pain-management physician on one occasion that he does not always take his
Hydrocodone. See id. at 49 (citing PageID #729). As explained in the cited treatment
note, id. at 729, Plaintiff elects not to take Hydrocodone when the weather is nice
(because his pain levels are typically lower) or if he is going to drive (because the
medication is sedating). This treatment note fails to reasonably support the conclusion
that he stopped or temporarily stopped taking his medication because he had low levels of
pain.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.
VI.

Remand for Benefits
Remand is warranted when an ALJ’s decision is unsupported by substantial

evidence or when an 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 due to an ALJ’s failure to follow the regulations
might arise, for example, 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’s credibility lacking, 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,
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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 “only where the evidence
of disability is overwhelming or where the evidence of disability is strong while contrary
evidence is lacking.” Felisky, 35 F.3d at 1041 (quoting Faucher v. Sec'y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994) ).
In the present case, the evidence of record establishes that a remand for award of
benefits is warranted because the record contains strong evidence while contrary
evidence is lacking. Plaintiff suffered well-documented traumatic injuries from a car
accident. His injuries required invasive surgery involving the implantation of surgical
hardware into his left ankle and right leg, including bone screws. The surgical hardware
in his left ankle later failed, leaving an open bone-screw hole. When Plaintiff concluded
that he had recovered from his initial surgery, he attempted to work and did so
successfully until his surgical-hardware problem. His ability to work during this short
period of time tends to show that he wanted to work despite his serious ankle and leg
problems. Plaintiff also attempted to recover, or at least improve his serious pain levels,
by undergoing treatment in different modalities (e.g., prescribed medications, physical
therapy). These facts—which the ALJ did not address—tend to enhance Plaintiff’s
credibility concerning the ongoing pain and swelling he suffers. Although ALJ
credibility determinations are generally due great deference, such deference is not due
here because the ALJ failed to explain the significantly probative evidence favoring
Plaintiff’s credibility.
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Accordingly, in light of the strong evidence of Plaintiff’s disability and the weak
contrary evidence, the ALJ’s decision is subject to reversal, and this matter should be
returned to the Social Security Administration for payment of benefits.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be reversed;

2.

The case be REMANDED to the Social Security Administration under sentence
four of 42 U.S.C. § 405(g) for payment of benefits;

3.

The case be terminated on the docket of this Court.

April 30, 2019

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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