Bates v. Social Security Administration
REPORT AND RECOMMENDATION: Upon review of the administrative record as a whole and consideration of the parties' filings, the Court recommends that Plaintiff's motion for judgment on the administrative record (Docket Entry No. 12 ) be GRANTED, the decision of the Commissioner be REVERSED, and this matter be REMANDED for further administrative proceedings consistent with this Report. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this Report and Recommendation. Signed by Magistrate Judge Barbara D. Holmes on 11/27/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
MICHELLE LEE BATES
NANCY A. BERRYHILL
Acting Commissioner of
Social Security 1
The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying Plaintiff’s claim for period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”) as provided under Title II and XVI of the Social Security
Act (“the Act”). The case is currently pending on Plaintiff’s motion for judgment on the
administrative record (Docket Entry No. 12), to which Defendant has filed a response. Docket
Entry No. 14.
Upon review of the administrative record as a whole and consideration of the parties’
filings, the Court recommends that Plaintiff’s motion for judgment on the administrative record
(Docket Entry No. 12) be GRANTED, the decision of the Commissioner be REVERSED, and
this matter be REMANDED for further administrative proceedings consistent with this Report.
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.
Plaintiff filed an application for a period of disability, DIB, and SSI on July 9, 2012. See
Transcript of the Administrative Record (Docket Entry No. 8) at 108-09. 2 She alleged a
disability onset date of September 1, 2011. AR 108-09. Plaintiff asserted that she was unable to
work because of migraines, right foot surgeries, depression, and post-traumatic stress disorder
(“PTSD”). AR 150, 154.
Plaintiff’s applications were denied initially and upon reconsideration. AR 108-09, 14243. Pursuant to her request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Scott C. Shimer on April 29, 2014.
AR 38. The ALJ subsequently denied the claim on August 22, 2014. AR 6-8. The Appeals
Council denied Plaintiff’s request for review of the ALJ’s decision on November 24, 2015
(AR 1-3), thereby making the ALJ’s decision the final decision of the Commissioner. This civil
action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision and made the following enumerated findings
based upon the record:
1. The claimant meets the insured status requirements of the Social Security
Act through March 31, 2014.
2. The claimant has not engaged in substantial gainful activity since
September 1, 2011, the alleged onset date. (20 CFR 404.1571 et seq., and
416.971 et seq.).
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
3. The claimant has the following severe impairments: history of foot
surgery; migraine headaches; status post left distal radius fracture; obesity;
depression; and anxiety/posttraumatic stress disorder (20 CFR 404.1520(c)
4. The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that the claimant has
nonexertional limitations. Specifically, she can perform occasional
pushing and pulling with the right lower extremity. In addition, the
claimant can frequently balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs. The claimant cannot climb ladders, ropes, or scaffolds.
The claimant can perform frequent handling and grasping with the left,
non-dominant upper extremity. The claimant also can perform simple,
routine, and repetitive tasks. She can perform low-level detailed tasks, but
she cannot make independent decisions at an executive level. The claimant
is limited to jobs that require no contact with the general public and
require only occasional contact with coworkers and supervisors.
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
7. The claimant was born on December 17, 1970 and was 40 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from September 1, 2011, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “even if there is substantial evidence in the record that would
have supported an opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
Substantial evidence is defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the twelve
month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ is required to consider the
combined effect of all the claimant’s impairments, mental and physical, exertional and
nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If the claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428. 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
C. The ALJ’s Five -Step Evaluation of Plaintiff
In the instant case, the ALJ resolved the Plaintiff’s claim at step five of the five-step
process. The ALJ found that Plaintiff met the first two steps, but found at step three that Plaintiff
was not presumptively disabled because she did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was unable
to perform any past relevant work. At step five, the ALJ found that Plaintiff’s RFC allowed her
to perform work with express limitations to account for her severe impairments, and that
considering her age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. AR 11-25.
D. Plaintiff’s Assertion of Error
Plaintiff argues that the ALJ erred by failing to consider or discuss the non-medical
testimony of two individuals familiar with her condition. DE 13 at 1-2. Plaintiff therefore
requests that this case be reversed and benefits awarded, or, alternatively, remanded pursuant to
sentence four of 42 U.S.C. § 405(g) for an additional hearing before an ALJ. Id. at 11.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
42 U.S.C. §§ 405(g), 1383(c)(3). “In cases where there is an adequate record, the
[Commissioner’s] decision denying benefits can be reversed and benefits awarded if the decision
is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and
evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Furthermore, a court can reverse the decision and immediately award benefits if all essential
factual issues have been resolved and the record adequately establishes a claimant’s entitlement
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). The Court addresses Plaintiff’s assertion of error below.
1. Lay testimony.
Plaintiff’s sole assertion of error involves the ALJ’s failure to reference in his opinion the
testimony of Sierra Shay Burn, who appeared at the underlying administrative hearing, and a
letter submitted by Hilda Margerum, a case manager at a homeless shelter in Illinois where
Plaintiff resided in 2011 and 2012. Ms. Burn is a neighbor who testified that she spends time
with Plaintiff each day and has observed the severe effects of Plaintiff’s anxiety and chronic
migraines. AR 60-63. She stated that Plaintiff “has really bad ...chronic headaches [and] very bad
anxiety.” AR 62. Ms. Burn also claimed that she assists Plaintiff with grocery shopping and that
she has to send Plaintiff a text message before going to her house so that Plaintiff will not “freak
out.” AR 62-63.
Ms. Margerum’s letter, dated May 13, 2014, describes some of the effects of anxiety,
depression, and previous domestic abuse on Plaintiff’s attempts at employment while residing at
the shelter. AR 299-300. Mr. Margerum states that Plaintiff kept the curtains in her room drawn
at the shelter because she “did not feel safe” and notes that Plaintiff “required a lot of support to
make her feel safe.” AR 299. Her letter further states that Plaintiff was unable to complete a
maintenance training program while housed at the shelter due to “emotional issues” even though
she was transported to and from her assigned job, and that Plaintiff experienced an increase in
anxiety in March of 2012 when her former abuser obtained her telephone number and informed
her that he was being released from prison. AR 300.
In support of her argument, Plaintiff relies on Social Security Ruling (“SSR”) 06-03p, a
policy interpretation ruling that explains how the Commissioner considers opinions from
individuals who are not “acceptable medical sources” as defined in 20 C.F.R. § 404.1502(a).
2006 WL 2329939, *1 (August 9, 2006). 3 Plaintiff quotes the following portion of the ruling:
Although there is a distinction between what an adjudicator must consider and
what the adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these
“other sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome
of the case.
Id. at *6. Plaintiff claims that the ALJ erred by failing to mention the statements provided by
Ms. Burn and Ms. Margerum, arguing that such statements represent “critical evidence in
support of disability.” DE 13 at 10. She also cites a case from the Eastern District of Michigan in
which the court determined that an ALJ’s failure to reference the opinions provided by two of the
subject claimant’s former supervisors rendered the ALJ’s assigned RFC “tainted,” thus
necessitating remand. See Lohr v. Comm’r of Soc. Sec., 559 F. Supp. 2d 784 (E.D. Mich. 2008).
The Court finds both Plaintiff’s argument and the Lohr decision persuasive, and thus concludes
that the Commissioner’s decision should be reversed and remanded for additional consideration.
The Court first notes that Defendant does not address Plaintiff’s argument with respect to
the Lohr decision, and in fact makes no reference to the case in its responsive brief. Defendant
instead responds by claiming that “[t]here is no evidence that the ALJ ignored Ms. Burn while
she was testifying,” and noting that the ALJ “explicitly stated that he would not make a
determination until he saw Ms. Margerum’s statement.” DE 14 at 10. This audacious argument
not only places an impossible burden on Plaintiff to provide additional proof that the ALJ
SSR 06-03p was rescinded on March 27, 2017. However, because Plaintiff’s complaint was
filed in 2016, the Court applies SSR 06-03p to the instant claim.
ignored Ms. Burn’s testimony despite the ALJ’s failure to even mention such testimony in his
opinion, but also requires the undersigned to accept a promise from the ALJ that he would
consider Ms. Margerum’s letter as evidence that he did consider the letter. As noted by the Lohr
court, it is instead the duty of the ALJ to provide some indication that these third party
statements were considered. See 559 F. Supp. 2d at 793 (“Because the administrative decision
gives no indication that [the third party] opinions were even considered, the requirements of SSR
06–03p were unmet.”). The ALJ in this case clearly failed to do so.
Nonetheless, the ALJ’s failure to comply with SSR 06-03p is subject to harmless error
review. The Sixth Circuit has stated that “the court will remand [a] case to the agency for further
consideration only if ‘the court is in substantial doubt whether the administrative agency would
have made the same ultimate finding with the erroneous finding removed from the picture ....’”
Berryhill v. Shalala, 4 F.3d 993 (table), 1993 WL 361792, at *7 (6th Cir. Sep. 16, 1993) (quoting
Kurzon v. United States Postal Serv., 539 F.2d 788, 796 (1st Cir. 1976)). To this end, Defendant
points to the Sixth Circuit’s indication that the ALJ “need not discuss every piece of evidence in
the record for his decision to stand.” Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th
Cir. 2004). However, the ALJ is not permitted to “cherry-pick the record to support [his]
conclusions, but  must consider the evidence taken as a whole.” Davis v. Colvin, No. 2:10-cv0088, 2015 WL 3504984, at *6 (M.D. Tenn. May 28, 2015) (quoting Ellis v. Schweicker, 739
F.2d 245, 248 (6th Cir. 1984)).
The Court first addresses the ALJ’s proffered reasons for his credibility determination. In
rejecting Plaintiff’s statements regarding the severity of her depression and anxiety, the ALJ
found that such claims were inconsistent with the record based on a series of encounters at
Volunteer Behavioral Health Care System (“Volunteer”) between 2012 and 2014 during which
Plaintiff demonstrated normal appearance, organized thought process, normal thought content,
and normal memory. AR 21, 354, 546-47, 552-53, 558-59, 564-65. Yet providers documented
additional symptoms during each of these visits that appear to support Plaintiff’s claims
regarding the extent of her alleged depression and anxiety. On August 6, 2012, Plaintiff’s
symptoms included feelings of hopelessness, worthlessness, isolation, and sadness, as well as
tearfulness, sleeping problems due to nightmares, and “constant worry that [she] can’t turn off,”
all of which manifested on at least five days of the week. AR 346-47. Plaintiff similarly reported
being very anxious on August 5, 2013 and October 28, 2013. AR 545, 551. On January 20, 2014,
Plaintiff reported continuing nightmares and exhibited symptoms of depression and anxiety due
to the impending release from prison of her ex-boyfriend, an individual who physically abused
her on multiple occasions less than one year before the alleged onset of her disabling symptoms.
AR 241-42, 557.
On April 14, 2014, a Volunteer provider wrote the following with respect to Plaintiff’s
condition: “It has been a bad mo[nth]. Abuser is to be discharged anytime. Sleep is ok when she
does not have [nightmares] ... Depression is up.” AR 563. Plaintiff had previously described her
“constant fear of [the abuser] returning to find her and harm her following his release from
prison” (AR 447), and additionally reported “her fear of him contributing to her fear of being in
public.” AR 416. 4 The Court also notes that one of documents cited by the ALJ in support of his
determination, labeled “Ex. 4F, pg. 2,” is not included anywhere in the administrative record.
The ALJ additionally relied heavily on two encounters involving Plaintiff’s activities
outside of her house as evidence that she experienced only moderate difficulties with social
The police report documenting the grisly physical assault in question is included in the record
(AR 234-35), along with the order of protection subsequently issued against the assailant. AR 236-48.
Notably, there are multiple incidents of physical abuse referenced in the record. AR 330, 333.
interaction. On February 5, 2014, a provider noted that Plaintiff had gone to Buffalo Wild Wings
to watch the Super Bowl. AR 519. The ALJ referenced this notation no less than three separate
times in the opinion (AR 12, 21), yet the very next sentence in the subject office note indicates
that Plaintiff had not otherwise left her house. AR 519. The ALJ similarly focused on an
encounter from April 2, 2014 during which Plaintiff indicated that she had “been out to eat with
a friend.” AR 12, 21, 527. However, the office note also noted that Plaintiff continued to be
“very anxious and depressed” (AR 527-28), symptoms that were again documented during the
next visit on April 17, 2014, in addition to a provider’s note that Plaintiff “hasn’t been using any
coping skills just sleeping all the time.” AR 529.
Despite these potential deficiencies in the ALJ’s explanation, the undersigned is mindful
that an ALJ’s credibility determination “may not [be] disturb[ed] absent compelling reason.”
Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001) (internal citations omitted). The Sixth Circuit
has also stated that an ALJ “can consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a party.” Kornecky v. Comm’r of Soc. Sec.,
167 F. App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense Systems-Akron v. N.L.R.B., 200
F.3d 436, 453 (6th Cir. 1999)). However, the ALJ’s failure to directly address conflicting
evidence in the record is only excused if his “factual findings as a whole show that he implicitly
resolved such conflicts.” Id. Moreover, as noted by the Lohr court, SSR 06-03p holds that the
ALJ should explain the weight given to “other source” opinions, such as those provided by
Ms. Margerum and Ms. Burn, “when such opinions may have an effect on the outcome of the
case.” 2006 WL 2329939, at *6.
Here, the Court finds that Ms. Margerum’s letter represents precisely the type of
conflicting evidence that should have been addressed by the ALJ. Ms. Margerum describes
Plaintiff’s reclusive behavior while residing at the homeless shelter following the
aforementioned physical assault, including her tendency to stay in her room with the curtains
closed and the lights turned down because “she did not feel safe.” AR 299. Ms. Margerum notes
that Plaintiff eventually refused to leave her room because she feared the assailant would find
her. AR 299. Significantly, Ms. Margerum also describes Plaintiff’s inability to complete a 20hour per week job training program that was requisite for continued residence at the shelter,
including the following discussion:
Even though I empathized with [Plaintiff’s] emotional issues, she had to be let go
from the program in November 2011. From the time [Plaintiff] lost her
employment in November until she left the [shelter] in July 2012, she displayed a
series of emotions up and down. I never knew what to expect when meeting with
her on [a] weekly basis. She was anxious one day and depressed the next time ....
Things that I take for granted in just maintaining day to day was a problem for
this young lady .... [T]he anxiety that she went through in the beginning only got
worse in March 2012 when the abuser got her phone number and informed her
that he was getting out [of prison] soon.
AR 300. Ms. Margerum was a case manager for Plaintiff while she was housed in the shelter,
which suggests that she had particular insight as to the limitations preventing Plaintiff from
performing work though the training program. Cf. Lohr, 559 F. Supp. 2d at 793 (holding that the
opinions of two of claimant’s supervisors should have been accorded “significant weight” based
on the supervisors’ weekly interactions with the claimant). Ms. Margerum’s description of
Plaintiff’s condition aligns with Ms. Burn’s testimony that Plaintiff rarely leaves her house and
“has issues being around others” and appears to support Plaintiff’s testimony that she struggles
with social interactions. AR 49, 62. Such consistency between Plaintiff’s symptom complaints
and evidence in the record tends to support her credibility. Kalmbach v. Comm’r of Soc. Sec.,
409 F. App’x 852, 863 (6th Cir. 2011). The Court therefore finds that remand is necessary for
consideration of the evidence provided by both Ms. Margerum and Ms. Burn.
For the sake of clarity, the Court stresses that the decision to remand is predicated on the
ALJ’s failure to discuss or even consider relevant evidence that at least arguably contradicts his
credibility determination. As noted by Plaintiff, the ALJ’s oversight is further underscored by the
ALJ’s erroneous claim with respect to his consideration of whether Plaintiff meets the criteria
under Listing 12.04 that “there is no evidence on record of the claimant having lived in a highly
supportive living environment.” AR 13. 5 Mr. Margerum’s letter, which documents Plaintiff’s
time at the homeless shelter, appears to directly refute this claim as a “highly supportive living
arrangement” has been defined as including “shelters or group homes, inpatient psychiatric
treatment, or an inability to live on one’s own.” Nikodem v. Comm’r of Soc. Sec., No. 1:09-cv270, 2011 WL 1357081, at *13 (W.D. Mich. Mar. 18, 2011), report and recommendation
adopted, 2011 WL 1356947 (W.D. Mich. Apr. 11, 2011) (internal citations omitted) (emphasis
added). See also Rosic v. Comm’r of Soc. Sec., No. 1:09-cv-1380, 2010 WL 3292964, at *7
(N.D. Ohio Aug. 19, 2010). The ALJ’s claim therefore provides additional evidence that he
failed to consider Ms. Margerum’s letter.
The Court also highlights an additional issue in the ALJ’s opinion, which involves the
ALJ’s citation to exhibits that are not included in the administrative record. As previously
discussed, the ALJ supported his credibility determination in part by citing to “Ex. 4F, pg. 2,” an
exhibit that is not contained in the administrative record. AR 21. In addressing the opinion
Listing 12.04 is one of the impairments included in 20 C.F.R. § 404, Subpart P, Appendix 1 and
contains specific criteria that, if met by the claimant, would direct the Commissioner to find the claimant
“disabled without considering [her] age, education, and work experience.” Johnson v. Sec’y of Health &
Human Servs., 794 F.2d 1106, 1110 (6th Cir. 1986) (quoting 20 C.F.R. § 404.1520(d)). If the claimant
has a listed impairment but does not meet the criteria, the ALJ can still find that the impairment is
“medically equivalent” to the listing in question if the claimant has “other findings related to [the]
impairment that are at least of equal medical significance to the required criteria.” 20 C.F.R.
§ 404.1526(b).The Listings contained in 20 CFR Part 404, Subpart P, Appendix 1 have been amended as
of March 27, 2017. However, because Plaintiff’s complaint predated this amendment, the court relies on
the pre-March 27, 2017 version of the regulation.
evidence of record, the ALJ cited “Ex. 5F and 6F” and “Ex. 11F,” which appear to reference
opinions provided by various State agency and consultative psychologists that are not contained
in the administrative record. AR 21. 6 Such an omission is not insignificant in light of the Court’s
duty to “review evidence that was available to the [Commissioner] and  determine whether the
decision of the [Commissioner] is supported by substantial evidence.” Cotton v. Sullivan, 2 F.3d
692, 696 (6th Cir. 1993) (internal citation omitted). Without access to evidence referenced in the
ALJ’s opinion, the Court is unable to determine whether such evidence represents substantial
evidence in support of the ALJ’s conclusion.
Based on the foregoing, the Court finds that the ALJ’s decision was not supported by
substantial evidence and that this matter should be remanded for consideration of both
Ms. Margerum’s letter and Ms. Burn’s testimony.
For the above stated reasons, it is recommended that Plaintiff’s motion for judgment on
the administrative record (DE 12) be GRANTED and that the Commissioner’s decision be
REVERSED and REMANDED for further proceedings consistent with this Report and
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state
with particularity the specific portions of this Report and Recommendation to which objection is
The ALJ refers to “Ex. 4F” as an opinion provided by “Dr. Vincent, a consultative
psychologist” (AR 21), yet there is no opinion from a Dr. Vincent in the record. The ALJ also identifies
“Ex. 5F and 6F” as opinions provided by State agency psychologist Dr. Leslie Fryans, and “Ex. 11F” as
an opinion completed “by another State agency source in April of 2011” (AR 21), yet no such opinions
are found in the record. There are instead exhibits marked as “B4F,” “B5F,” “B6F,” and “B11F” (see
Table of Contents, page ID # 21-22), but these exhibits do not correspond to the opinions of any
consultative examiners or State agency physicians. See AR 338-71, 417-18.
made. Failure to file written objections within the specified time can be deemed a waiver of the
right to appeal the District Court’s Order regarding the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
BARBARA D. HOLMES
United States Magistrate Judge
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