UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

ROBERT EHMCKE,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

Case No. 14-14301

Hon. Bernard A. Friedman

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 14, 15)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On November 6, 2014, plaintiff filed the instant suit seeking judicial review

of the Commissioner’s decision disallowing benefits. (Dkt. 1). Pursuant to 28 1

U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Bernard A.

Friedman referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claims. (Dkt. 3). This matter is

before the Court on cross-motions for summary judgment. (Dkts. 14, 15). 

Plaintiff also filed a reply brief. (Dkt. 16). The cross-motions are now ready for

 Plaintiff’s original complaint was stricken from the record because the PDF image had 1

not loaded completely. Plaintiff filed a corrected copy of the complaint on November 11, 2014. 

(Dkt. 4). 

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report and recommendation.

B. Administrative Proceedings

On February 2, 2012, plaintiff protectively filed a Title II application for a

period of disability and disability insurance benefits, alleging a disability

beginning January 1, 2010. (Tr. 125-131). The Commissioner initially denied

plaintiff’s disability application on July 31, 2012. (Tr. 68-77). Thereafter,

plaintiff requested an administrative hearing, and on May 14, 2013, he appeared

with counsel before Administrative Law Judge (“ALJ”) James J. Kent, who

considered his case de novo. (Tr. 35-67). In a June 12, 2013 decision, the ALJ

determined that plaintiff was not disabled within the meaning of the Social

Security Act. (Tr. 21-30). The ALJ’s decision became the final decision of the

Commissioner on September 23, 2014, when the Social Security Administration’s

Appeals Council denied plaintiff’s request for review. (Tr. 1-6). Plaintiff filed

this suit on November 6, 2014. (Dkt. 1).

For the reasons set forth below, the Court concludes that the ALJ failed to

provide the requisite “good reasons” when it discounted the opinion of plaintiff’s

long-time, treating physician. The Court therefore RECOMMENDS that

Plaintiff’s Motion for Summary Judgment (Dkt. 14) be GRANTED, that

Defendant’s Motion for Summary Judgment (Dkt. 15) be DENIED, and that,

pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social

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Security be REVERSED AND REMANDED, so that the ALJ can accord proper

weight to the opinion of the treating physician and give the required “good

reasons” in the notice of determination for the weight given. 

II. FACTUAL BACKGROUND

A. ALJ Findings

 Plaintiff previously worked as a warehouse manager and as a truck driver. 

(Tr. 60). The highest level of education that plaintiff completed was the tenth

grade. (Tr. 40). The ALJ applied the five-step disability analysis to plaintiff’s

claims and found at step one that plaintiff did not engage in any substantial gainful

activity since January 1, 2010, the alleged onset date. (Tr. 23). At step two, the

ALJ found that plaintiff had the following severe impairments: osteoarthritis of the

bilateral wrists secondary to Kienbock’s Disease (a.k.a. vascular necrosis of the

lunate) status post bilateral carpal tunnel releases (20 C.F.R. § 404.1520(c)). (Tr.

24). At step three, the ALJ found that plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of one of

the listed impairments. (Tr. 25). 

The ALJ determined that plaintiff had the residual functional capacity

(“RFC”) to perform:

light work as defined in 20 CFR 404.1567(b). He can

frequently handle and feel bilaterally. The claimant can

occasionally finger bilaterally. He can occasionally reach

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overhead bilaterally. The claimant can lift 20 pounds

occasionally and 10 pounds frequently. He can sit for up

to 6 hours during an 8-hour workday with normal breaks.

The claimant can stand/walk up to 6 hours during an

8-hour work period with normal breaks. He can

occasionally balance, kneel, stoop, crouch, and crawl.

The claimant must avoid extreme temperatures,

humidity, and vibration. He can make normal work

judgments. The claimant can perform normal work tasks.

He can interact appropriately with coworkers and

supervisors. The claimant can occasionally interact with

the public. He can respond to usual work situations. The

claimant can tolerate routine changes in his work setting.

(Tr. 26). At step four, the ALJ determined that plaintiff was unable to perform any

past relevant work. (Tr. 29). At step five, the ALJ concluded that based on

plaintiff’s age, education, work experience and RFC, there are jobs that exist in

significant numbers in the national economy that plaintiff can perform and,

therefore, he has not been under a disability from January 1, 2010 (the alleged

onset date), through the date of the decision. (Tr. 29-30).

B. Plaintiff’s Claims of Error

1. The ALJ failed to give the required “good reasons” when he

rejected the opinion of his treating physician, Dr. Kerr.

Plaintiff claims that the ALJ, without justification, rejected the opinion of

his long-time treating physician, Dr. Charles Kerr, who determined that he was

limited to less than a full range of “sedentary” work, i.e., lifting no more than 10

pounds. (Tr. 340-43). While the Commissioner is able to make the ultimate

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decision regarding whether plaintiff is disabled, the discretion as to the weight an

ALJ affords medical opinion evidence is not unbridled. With respect to treating

sources, plaintiff avers that if controlling weight is not given, and ALJ is required

to consider six factors: (1) examining relationship; (2) treatment relationship; (3)

supportability; (4) consistency; (5) speciality; and (6) other factors. See 20 CFR

1527(d)(2). 

Further, this Circuit holds that a medical opinion by a treating source is

entitled to more weight than an opinion from a non-treating source, or from a

consulting physician who has only examined the plaintiff one time. 20 CFR

404.1527(d)(1)-(2); see also Rogers v. Comm’r, 486 F. 3d 234, 242 (6th Cir.

2007). Plaintiff claims that the reasons that the ALJ gave for discounting Dr.

Kerr’s opinion are not valid. First, the ALJ claimed that the record revealed that

though Dr. Kerr had a long-term treating relationship with plaintiff, the actual

treatment with Dr. Kerr was “relatively infrequent.” In his medical source

statement, however, Dr. Kerr stated that he had treated plaintiff two to three times

annually over 30 years, which equates to between 60 and 90 contacts. While a

majority of these contacts pre-date the alleged onset date, plaintiff contends that

many of his conditions are chronic, including Keinbock’s disease, hypertension,

hyperlipidemia, depression, post-herpetic neurologia, and chronic lumbar

myofascial pain. Second, the ALJ stated that plaintiff’s course of treatment was

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not consistent with someone who was “truly disabled” as there were no X-rays or

MRI scans of the plaintiff’s back, shoulders or elbows in the record. Plaintiff

claims, however, that Dr. Kerr had made appropriate referrals to specialists,

including for his hand/wrist problems. Additionally, as acknowledged by the ALJ,

plaintiff underwent a nerve conduction study in April 2009 evidencing his carpal

tunnel syndrome. Plaintiff further underwent bilateral carpal tunnel release

surgical procedures and received therapy thereafter. So, to say that there was no

evidence that plaintiff’s conditions resolved with conservative care, or that there

was no evidence that plaintiff was a surgical candidate is simply not accurate. 

Finally, the ALJ discounted Dr. Kerr’s opinion because he concluded that

plaintiff’s degree of limitation was inconsistent with consulting physician Dr.

Lazarra’s June 2012 physical examination. To this argument, plaintiff points to

the Dr. Kerr’s findings which indicate plaintiff’s limitations in reaching, handling

or fingering, as well as significant limitations in the use of his fingers in fine

manipulation. (Tr. 343). In sum, plaintiff argues that the ALJ failed to support his

decision to discount the opinion of plaintiff’s long-time treating physician, Dr.

Kerr, over consulting examiner, Dr. Lazarra. Failure to give the necessary good

reasons, makes it impossible for a subsequent reviewer to trace the ALJ’s line of

reasoning and violates 20 C.F.R. § 1527(d)(2). 

Plaintiff contends that the medical evidence is consistent with the opinion of

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Dr. Kerr. Keinbock’s disease, as one example, is a progressive arthritic condition

resulting in abnormality in the wrists and hands. Dr. Kerr’s opinion is supported

by the record and is work preclusive as plaintiff is unable to sustain activities

without significant breaks or absences due to a combination of factors. (Tr. 63,

64). 

2. The RFC did not accurately reflect plaintiff’s impairments

Plaintiff also argues that the RFC does not reflect the level of impairment

found to exist by plaintiff’s treating physician, Dr. Kerr. An RFC is defective if it

does not comport with substantial evidence in the record. Plaintiff claims that the

RFC here is defective because it does not comport with substantial evidence in the

record, namely Dr. Kerr’s opinion. Hamilton v. Sec’y of HHS, 961 F.2d, 1495

(10th Cir. 1992), Broadbent v. Harris, 698 F.2d 407 (10th Cir. 1983). Plaintiff

avers that there is nothing in the record to support the ALJ’s determinations

regarding the limitations concerning plaintiff’s abilities to handle, feel or finger. 

Moreover, and importantly, the limitations are inconsistent with Dr. Kerr’s

opinion. As such, plaintiff contends that the RFC is defective.

3. The ALJ improperly assessed plaintiff’s credibility

Plaintiff claims that the ALJ failed to properly consider the factors in 20

C.F.R. § 404.1529(c) when assessing plaintiff’s credibility. Specifically, plaintiff

avers that there is no discussion of the factors set forth in the statute; rather the

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ALJ just made a conclusory finding that plaintiff was only partially credible. On

examination, plaintiff testified that he had limitations with his hands and wrists

when he picked items up, and that he experienced pain if he turned or twisted his

hands or wrists. (Tr. 42). Plaintiff also testified that he could lift ten pounds, but

could not do it repetitively. (Tr. 43). He also indicated that reaching with either

hand would cause pain. Plaintiff argues that there is scant evidence in the record

that the ALJ considered the relevant factors when assessing plaintiff’s credibility,

as such the analysis is flawed.

4. The Appeals Council failed to consider new and material

evidence submitted following the hearing

Plaintiff also seeks a sentence six remand because he claims that new and

material evidence of his disability was submitted following the evidentiary

hearing. A sentence six remand under § 405 provides that the Court may allow

additional evidence to be submitted before the Secretary upon the showing that

there is new evidence which is material and that there was good cause for failure

to incorporate the evidence into the prior proceeding. Sizemore v Sec’y of Health

and Hum. Servs., 865 Fed. 2d 709, 711 (6th Cir. 1988). Plaintiff contends that on

February 7, 2014 and on September 19, 2014, additional evidence was submitted

to the Appeals Council. Plaintiff claims that these records establish ongoing

treatment for his chronic pain. The treatment supports both Dr. Kerr’s opinion as

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well as plaintiff’s credibility. Plaintiff also contends that the requisite “good

cause” is present as the evidence did not exist until after the ALJ’s unfavorable

decision. It is material in that it relates to the treatment provided by Dr. Kerr, and

is consistent with his opinion. For these reasons, plaintiff claims that the evidence

should be considered.

C. The Commissioner’s Motion for Summary Judgment

1. Administrative proceedings

The Commissioner points out that defendant correctly notes that claimant

was awarded supplemental security income in a subsequent application, based on a

finding that he became disabled in November 2014. However, the Commissioner

notes that plaintiff incorrectly states that “there remains a period of unadjudicated

disability” running from June 12, 2013 (the date of the ALJ’s decision here)

through March 31, 2014 (the date last insured). Plaintiff filed new applications for

supplemental security income and disability insurance benefits on November 6,

2014, again alleging disability since 2010. The state agency adjudicated the entire

period following the June 2013 decision, and found that plaintiff retained the

capacity to perform light work throughout the later period. The Commissioner

contends that because plaintiff was still only 54 years old when his insurance

status expired at the end of March 2014, his application for disability insurance

benefits was denied, based on Rule 202.11 of the Medical-Vocational Guidelines. 

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However, because plaintiff had turned 55 years old by the time he filed his

application for supplemental security income, he received a fully favorable

decision on this application, based on Rule 202.02, due to his entry into the

advanced age category and his lack of transferrable skills. 

2. The ALJ properly evaluated the opinion of treating physician,

Dr. Kerr

The Commissioner also contends that the ALJ’s finding that plaintiff could

physically perform light work that involved only occasional fingering and

reaching overhead (plus some additional non-exertional limitations) relied

primarily on the opinion of state agency physician, Dr. Gupta, who reviewed

plaintiff’s treatment records. (Tr. 28, 75-76). Dr. Gupta concluded that plaintiff

could do all of the basic activities required by light work, but had some limitations

as to fine manipulation and reaching. (Tr. 75-76). The Commissioner argues that

the ALJ could rely on this opinion because it was consistent with the totality of the

evidence in the record, including the reports of Drs. Cherwin, Singer and Lazarra. 

(Tr. 283-86, 317-18, 320-22). Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514-515

(6th Cir. 2010). The Commissioner further contends that regarding plaintiff’s

mental limitations, the ALJ relied on the opinion of Dr. Newhouse, a state agency

reviewing psychiatrist who concluded that the evidence showed, at most, mild

functional limitations. (Tr. 25, 72-73). 

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The Commissioner contends that the ALJ provided sufficient reasons for

discounting the opinion of plaintiff’s treating physician, Dr. Kerr. First, the ALJ

noted that, while treating plaintiff for several years, Dr. Kerr did not see plaintiff

more than a few times a year and did not order tests or provide much in the way of

treatment for plaintiff. (Tr. 28). Also, the ALJ noted that the degree of limitation

described by Dr. Kerr (less than sedentary work capacity, Tr. 341-343) was not

consistent with the findings from a 2012 consultative examination. (Tr. 28). 

Further, while plaintiff had carpal tunnel syndrome, necessitating surgery, the

surgery was successful and EMG testing in 2010 showed no sign of active carpal

tunnel syndrome (Tr. 232), and an examination in 2012 showed no sign of carpal

sheath tenderness (Tr. 284). Plaintiff also notes that he suffers from Kienbock’s

disease, however Dr. Lazarra’s findings on which the ALJ relied (Tr. 27)

concluded that it was “mostly compensated.” (Tr. 287). Also, the Commissioner

notes that Dr. Singer, who conducted the 2010 hand and wrist examination, ruled

out only forceful gripping. (Tr. 323). In sum, the Commissioner argues that none

of these doctors suggested that plaintiff was unable to use his hands and arms in

the limited manner that the ALJ found him able to use them. 

The Commissioner further contends that no physician or psychiatrist

documented any mental impairment that significantly limited plaintiff’s ability to

do basic mental work activities. As such, says the Commissioner, the ALJ

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properly relied on the opinion of Dr. Newhouse, the reviewing psychiatrist. (Tr.

25, 72-73). The Commissioner recognizes that Dr. Kerr concluded that plaintiff’s

pain would cause frequent disruption in his ability to concentrate (Tr. 341),

however, Dr. Kerr did not provide any medical observations that supported this

claim. Moreover, the state examiners did not observe any sign of disrupted

concentration or attention, and plaintiff did not report attention or concentration

problems. (Tr. 47, 156, 157). Dr. Kerr also stated that plaintiff experienced

significant side-effects from his medications (Tr. 284), however, plaintiff said that

the only side-effects that he currently experienced was sweating. (Tr. 55-56). 

For all of these reasons, the Commissioner argues that the ALJ properly

discounted plaintiff’s treating physician’s opinion and the RFC is supported by

substantial evidence in the record. 

3. The ALJ did not err in evaluating plaintiff’s credibility

The Commissioner argues that the ALJ had a sufficient basis for

discounting plaintiff’s testimony as to the severity of his symptoms. In assessing

plaintiff’s credibility, the Commissioner contends that the ALJ took into account

the following factors: the contemporaneous medical evidence, the lack of adequate

medical evidence supporting plaintiff’s most extreme claims of disability, the

medical experts’ assessments, plaintiff’s activities of daily living, the fact that

plaintiff collected unemployment benefits for a sustained period after he was

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cleared to return to work (during part of the period he in which he now claims to

have been disabled). (Tr. 27-28). The Commissioner argues that the factors

considered by the ALJ were both appropriate and sufficient. See Jones, 336 F.3d

at 476; Brooks v. Soc. Sec. Admin., 430 Fed. Appx. 468, 482-483 (6th Cir. 2011).

4. The hypothetical questions to the vocational expert accurately

represented plaintiff’s limitations

Similar, to the argument regarding the sufficiency of the RFC, the

Commissioner contends that the ALJ did not err in not presenting a hypothetical

that included limitations as to lifting, handling, feeling and fingering. As above,

the Commissioner says that the ALJ properly assessed the medical evidence in the

record and plaintiff’s credibility when determining his work capacity. 

Accordingly, the ALJ did not need to present a hypothetical that assumed any

unsubstantiated restrictions (or rely on a response to such an alternative

hypothetical). Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 118 (6th

Cir. 1994); Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th

Cir. 1993).

5. Plaintiff is not entitled to a remand based on new and material

evidence

The Commissioner contends that the “new” evidence that plaintiff submitted

to the Appeals Council is insufficient to warrant a remand. The Commissioner

says that except for one page dating from May 2013 (which relates to treatment for

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plugged ears), plaintiff’s “new” evidence relates to his condition after the ALJ’s

decision in June 2013. While a court “may at any time order additional evidence

to be taken before the [Commissioner],” a court may only do so “upon a showing

that there is new evidence which is material and that there is good cause for the

failure to incorporate such evidence into the record in a prior proceeding.” 42

U.S.C. § 405(g); Casey, 987 F.2d at 1233; see also Cotton v. Sullivan, 2 F.3d 692,

695-96 (6th Cir. 1993). The Commissioner argues that, at most, plaintiff has

shown that the “new” evidence presented by plaintiff shows only a worsening of

plaintiff’s condition after the point the ALJ denied his claim, and under these

circumstances a remand is not warranted under sentence six.

D. Plaintiff’s Reply

1. The Commissioner fails to give the requisite good reasons or

analysis for rejecting the treating source opinion of Dr. Kerr

Plaintiff argues that the Commissioner has not satisfied his burden in

engaging in an appropriate analysis of the “good reasons” for rejecting plaintiff’s

treating physician Dr. Kerr’s opinion that plaintiff was disabled over the opinions

of state agency consulting sources. First, the Commissioner cites Dr. Lazarra’s

opinion that plaintiff ‘s Kienbock’s disease was “mostly compensated” (Tr. 287). 

However, plaintiff says that the alleged method of “compensation” was overuse of

other muscles which places an undue strain on plaintiff’s elbows and shoulders. 

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This “compensation,” argues plaintiff, lends credence to plaintiff’s complaints of

chronic upper extremity pain and discomfort. In fact, plaintiff points out that Dr.

Lazarra seemed to agree that plaintiff’s “compensation” appeared to have created a

“chronic” tendinitis in his elbow and shoulders and potentially a mild degenerative

arthritis. (Tr. 287). Also, Dr. Kerr opined that plaintiff’s chronic pain would

impact his capacity to sustain concentration, persistence, or pace. 

Plaintiff points out that the concerns of Drs. Kerr and Lazarra are

substantiated by the new and material evidence found in the records of Dr. Etha

attached to plaintiff’s motion. In sum, Dr. Etha determined that as of July 29,

2014, plaintiff had shoulder pain that required occupational therapy. Dr. Etha

diagnosed plaintiff with tendonitis of the shoulder, acromioclavicular joint

arthritis, and impingement syndrome of the elbow, low back pain, and sacroiliac

dysfunction. Plaintiff argues that Dr. Kerr’s treating source opinion is consistent

with the longitudinal medical record. Moreover, plaintiff argues that the ALJ

erred when he rejected Dr. Kerr’s opinion and did not give the requisite good

reasons for doing so.

2. Plaintiff is entitled to a sentence six remand

Plaintiff argues that the evidence that was submitted after the administrative

hearing does not merely show a worsening of his condition, but also shows an

endorsement of the impairments found to exist by Drs. Kerr and Lazarra. Plaintiff

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argues that this evidence is new and material, substantiates his claim of disability,

and bears consideration relative to a remand in this matter.

III. DISCUSSION

A. Standard of Review

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.

1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

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Walters, 127 F.3d at 528. In deciding whether substantial evidence supports the

ALJ’s decision, “we do not try the case de novo, resolve conflicts in evidence, or

decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.

2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). “It is of course for

the ALJ, and not the reviewing court, to evaluate the credibility of witnesses,

including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247

(6th Cir. 2007); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003)

(an “ALJ is not required to accept a claimant’s subjective complaints and may . . .

consider the credibility of a claimant when making a determination of disability.”);

Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s

credibility determinations about the claimant are to be given great weight,

particularly since the ALJ is charged with observing the claimant’s demeanor and

credibility.”) (quotation marks omitted); Walters, 127 F.3d at 531 (“Discounting

credibility to a certain degree is appropriate where an ALJ finds contradictions

among medical reports, claimant’s testimony, and other evidence.”). “However,

the ALJ is not free to make credibility determinations based solely upon an

‘intangible or intuitive notion about an individual’s credibility.’” Rogers, 486

F.3d at 247, quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

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Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a

scintilla of evidence but less than a preponderance; it is such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Rogers, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

either the ALJ or the reviewing court must discuss every piece of evidence in the

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administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

inability to engage in any substantial gainful activity by

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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. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience. 

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

Step Five: Even if the claimant is unable to perform his

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

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are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

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C. Analysis

1. Disability period

The parties disagree about whether there is an unadjudicated period of

disability running from the date of ALJ Kent’s decision (June 12, 2013) until the

last date insured (March 31, 2014). Following the ALJ’s decision, plaintiff filed

new applications for both disability insurance benefits and supplemental security

income on November 6, 2014, in both applications alleging a disability beginning

since 2010. The Commissioner points out that the state agency adjudicated the

entire period following the June 2013 ALJ decision, and concluded that plaintiff

could perform “light” work throughout such later period. The Commissioner

indicates that because plaintiff was still only 54 years old when his insured status

expired in March 2014, his application for disability benefits was denied. 

However, because plaintiff had turned 55 years old when he filed his applications

for supplemental security income, he received a fully favorable decision on his

application, due to plaintiff’s entry into the advanced age category and his lack of

transferrable skills. (Dkt. 15, Def.’s Mot. Summ. J. at 3). Based on the above, the

undersigned concludes that there remains no unadjudicated period of disability

benefits in this case. 

2. Treating Physician–Dr. Kerr

The undersigned agrees with plaintiff that the ALJ failed to give sufficiently

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“good reasons” for not giving controlling, or at the least deferential weight to the

opinion of Dr. Kerr, plaintiff’s treating physician during the relevant time period. 

As both parties acknowledge, greater deference is generally given to the opinions

of treating medical sources than to the opinions of non-treating medical sources. 

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). “Closely

associated with the treating physician rule, the regulations require the ALJ to

always give good reasons in [the] notice of determination or decision for the

weight given to the claimant’s treating source’s opinion.” Id. at 406 (citing

§ 404.1527(d)(2)). Indeed, SSR 82-62 requires that “[t]he explanation of the

decision must describe the weight attributed to the pertinent medical and

non-medical factors in the case and reconcile any significant inconsistencies.

Reasonable inferences may be drawn, but presumptions, speculations and

suppositions must not be used.” 

In assigning plaintiff’s primary treating physician, Dr. Kerr’s, opinion “little

weight,” the ALJ opined:

Charles Kerr, D.O., the claimant’s primary doctor of

more than 30 years, opined that the claimant was limited

to less than a full range of “sedentary” work (i.e. lifting

no more than 10 pounds) (12E and 12F). In general,

when supported by other evidence, opinions made by an

individual’s treating doctor are given controlling weight.

Although Dr. Kerr had a long term treating relationship

with the claimant, the record revealed that the claimant’s

actual treatment visits with Dr. Kerr were relatively

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infrequent. The claimant saw Dr. Kerr a few times a year

at the most. Moreover, the course of treatment pursued

by Dr. Kerr [has] not been consistent with what one

would expect if the claimant were truly disabled, as the

doctor has reported. There were no XR or MRI scans of

the claimant’s back, shoulders, or elbows in the

evidence. There was no evidence that the claimant’s

conditions did not resolve with conservative care. There

was no evidence that the claimant was a surgical

candidate. This degree of limitation was not consistent

with the physical examination results from June 2012

(6F). For these reasons, I gave Dr. Kerr’s opinion little

weight.

(Tr. 28). First, the undersigned finds that the ALJ did not fully consider or explain

the physician-patient relationship. In Dr. Kerr’s medical source statement, he

indicated that he had treated plaintiff two to three times per year for over 30 years. 

(Tr. 338). This would equate to between 60 to 90 contacts between Dr. Kerr and

plaintiff over their 30-year physician-patient relationship. The undersigned

believes that this 30-year, longitudinal relationship gives Dr. Kerr a wealth of

background information regarding the limiting effects of plaintiff’s chronic

conditions.

The undersigned also finds that the ALJ did not fully consider or explain the

clinical findings in the record. As indicated above, the ALJ discounted Dr. Kerr’s

opinion based on the objective evidence and medical records, which the ALJ

concluded “[were] not [] consistent with what one would expect if the claimant

were truly disabled ...” (Tr. 28). First, the ALJ states that there were no imaging

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studies conducted of plaintiff’s back, shoulders or elbows in the evidence. 

However, as plaintiff points out, on January 8, 2010, X-rays of plaintiff’s wrists

revealed osteoarthritis secondary to Kienbock’s disease. (Tr. 322). Plaintiff is

also correct when he states that he underwent a 2009 nerve conduction study

evidencing carpal tunnel syndrome in his left wrist, with a possible occult foreign

body. (Tr. 297-300). Following this report, on May 28, 2009, plaintiff elected to

undergo a carpal tunnel release procedure and the removal of the occult foreign

body. (Tr. 303). On August 18, 2009, plaintiff underwent a carpal tunnel release

on the right side. (Tr. 304). In an October 2009 follow-up appointment, plaintiff

complained of tenderness in the wrist with twisting motions. (Id.) Plaintiff’s

surgeon, Dr. Terrence Cherwin, indicated that he was going to send plaintiff for

occupational therapy for strengthening and range of motion to the right wrist, and

would reassess his condition at a later date. (Id.) This evidence directly

contradicts the ALJ’s conclusions that there was no evidence that the plaintiff only

required conservative care, or that plaintiff was never a surgical candidate. (Tr.

28). These conclusions, in the opinion of the undersigned, indicate that the ALJ

did not make a full and complete review of the record in this case. 

2

 The Commissioner attempts to make a post-hoc argument to buoy up the ALJ opinion; 2

however, many of the Commissioner’s arguments were not made by the ALJ in the first instance

and, in fact, directly conflict with the ALJ’s conclusions. (Compare Dkt. 15, at 13-15 with Tr.

28).

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Treating physician Kerr also completed a musculoskeletal residual

functional capacity questionnaire, where he opined that plaintiff could

continuously sit or stand for 30 minutes at a time. (Tr. 342). He concluded that

plaintiff could sit or stand/walk about two hours in an eight-hour workday (with

normal breaks). (Id.) Dr. Kerr indicated that plaintiff required 90-minutes of

walking during a normal workday, for fifteen minutes periods each time. (Id.) 

Plaintiff also required a job that permitted shifting positions at will from sitting,

standing or walking. (Id.) Dr. Kerr also opined that plaintiff needed to lie down at

unpredictable intervals during a work shift approximately one to two times. (Id.) 

With prolonged sitting, Dr. Kerr concluded that plaintiff’s legs should be elevated

to heart level. (Id.) Plaintiff could only “occasionally” (e.g., less than one-third of

the workday) lift or carry less than 10 pounds in a competivive work situation. 

(Tr. 343). Further, Dr. Kerr stated that plaintiff has significant restrictions in

reaching, handling and fingering. (Id.) Dr. Kerr opined that plaintiff could

occasionally bend or twist at the waist. (Id.) On average, Dr. Kerr determined that

plaintiff’s impairments or treatments would cause him to be absent from work

more than three times per month. (Id.) The ALJ afforded treating physician Dr.

Kerr’s opinion, “little weight.” 

As the Sixth Circuit stated: “This requirement [to always give good

reasons] is not simply a formality; it is to safeguard the claimant’s procedural

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rights. It is intended to let claimants understand the disposition of their cases,

particularly in situations where a claimant knows that his physician has deemed

him disabled and therefore might be especially bewildered when told by an

administrative bureaucracy that [ ] he is not.” Cole v. Astrue, 661 F.3d 931, 937

(6th Cir. 2011) (citation omitted). Moreover, if the ALJ determined that plaintiff’s

treating physician’s opinion should not be given controlling weight despite

medical evidence in support, “the ALJ must still determine how much weight is

appropriate by considering a number of factors, including the length of the

treatment relationship, supportability of the opinion, consistency of the opinion

with the record as a whole, and any specialization of the treating physician.”

Blakley v. Comm’r of Soc. Sec., 582 F.3d 399, 406 (6th Cir. 2009). Another

reason the ALJ gives for discounting ALJ Kerr’s opinion is that it was not

consistent with the physical examination results conducted by a state examiner in

June 2012. As discussed above, the undersigned concludes that the ALJ did not

sufficiently assess and weigh the factors such that plaintiff’s treating physician’s

opinion could be discounted. 

Importantly, even if Dr. Kerr’s opinion was not entitled to controlling

weight, it was entitled to deference. 20 C.F.R. § 404.1527(d)(2)(I). As explained

in SSR 96-2p,

Adjudicators must remember that a finding that a treating

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source medical opinion is not well-supported by

medically acceptable clinical and laboratory diagnostic

techniques or is inconsistent with the other substantial

evidence in the case record means only that the opinion

is not entitled to controlling weight not that the opinion

should be rejected. Treating source medical opinions are

still entitled to deference and must be weighed using all

of the factors provided in 20 CFR 404.1527 and 416.927.

In many cases, a treating source’s medical opinion will

be entitled to the greatest weight and should be adopted,

even if it does not meet the test for controlling weight. 

*18. 

The undersigned finds that the ALJ did not adequately address why Dr.

Kerr’s opinion should not be given controlling weight or even deference, as

required by the regulations. 20 C.F.R. § 404.1527(d)(2). Although the ALJ’s

finding that plaintiff was not disabled ultimately may be justified, if an ALJ fails

to adequately explain why he rejected or discounted the opinion and how those

reasons affected the weight accorded the opinion, the Court must find that

substantial evidence is lacking, “even where the conclusion of the ALJ may be

justified based upon the record.” Rogers, 486 F.3d at 243 (citation omitted). 

3. Sentence Six Remand

Plaintiff also argues that the Appeals Council failed to consider evidence

that it submitted after the administrative hearing on May 14, 2013, that he argues

supports his claim of disability. Under sentence six of 42 U.S.C. § 405(g),

plaintiff has the burden to demonstrate that this evidence is “new” and “material”

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and that there is a “good cause” for failing to present this evidence in the prior

proceeding. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006);

Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 598 (6th Cir. 2005). Courts “are

not free to dispense with these statutory requirements.” Hollon, 447 F.3d at 486. 

“Good cause” is not established solely because the new evidence was not

generated until after the ALJ’s decision; the Sixth Circuit has taken a “harder

line” on the good cause test. Oliver v. Sec’y of Health & Human Servs., 804 F.2d

964, 966 (6th Cir. 1986); see also Perkins v. Apfel, 14 Fed. Appx. 593, 598-99

(6th Cir. 2001). A plaintiff attempting to introduce new evidence must explain

why the evidence was not obtained earlier and submitted to the ALJ before the

ALJ’s decision. See Hollon, 447 F.3d at 485; see also Brace v. Comm’r of Soc.

Sec., 97 Fed. Appx. 589, 592 (6th Cir. 2004) (claimant’s decision to wait and

schedule tests just before the hearing with the ALJ did not establish good cause);

Cranfield v. Comm’r of Soc. Sec., 79 Fed. Appx. 852, 859 (6th Cir. 2003).

Additionally, in order to establish materiality, plaintiff must show that the

introduction of the new evidence would have reasonably persuaded the

Commissioner to reach a different conclusion. Foster v. Halter, 279 F.3d 348,

357 (6th Cir. 2001); Sizemore v. Sec. of Health & Human Servs., 865 F.2d 709,

711 (6th Cir. 1988); Hensley v. Comm’r of Soc. Sec., 214 Fed. Appx. 547, 550

(6th Cir. 2007).

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Even if plaintiff could establish “good cause,” he has failed to establish that

the records are “material,” and thus has failed to meet his burden for a sentence

six remand. To establish “materiality,” plaintiff must explain how the

introduction of the new evidence would have reasonably persuaded the

Commissioner to reach a different conclusion. The additional records do not

contain any opinions on plaintiff’s functional ability through the last date insured

and, even if they did, such retrospective opinions would not support plaintiff’s

disability through the last date insured of March 31, 2014. See e.g., Wladysiak v.

Comm’r of Soc. Sec., 2013 WL 2480665, at *11 (E.D. Mich. 2013), citing

Lancaster v. Astrue, 2009 WL 1851407, at *11 (M.D. Tenn. 2009) (“[A]

retrospective diagnosis relating back to the insured period may be considered

proof of disability only if it is corroborated by evidence contemporaneous with

the eligible period.”). Importantly, plaintiff acknowledges that the new records

establish “ongoing” treatment for his chronic pain, and that he is using them to

support his treating physician’s opinion and his own credibility. (Dkt. 14, Pl.’s

Mot. Summ. J. at 15). Notably, the Appeals Council considered these records in

evaluating plaintiff’s disability claims and found that the Administrative Law

Judge decided plaintiff’s case through June 12, 2013. The Appeals Council

concluded: “This new information is about a later time. Therefore, it does not

affect the decision about whether you were disabled beginning on or before June

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12, 2013.”•(Tr. 2). For these reasons, the undersigned concludes that plaintiff

has failed to meet his burden to demonstrate that the evidence is “material.”•

Accordingly, a sentence six remand is not appropriate.

As to plaintiff’s remaining complaints of error, those can be addressed by

the ALJ on remand, given that a reassessment of plaintiff’s credibility, impact of

his pain complaints, and the RFC will likely be necessary after addressing the

foregoing issues.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment (Dkt. 14) be GRANTED, that

defendant’s motion for summary judgment (Dkt. 15) be DENIED, and that the

findings of the Commissioner be REVERSED AND REMANDED, so that the

ALJ can accord proper weight to the opinion of the treating physician and give

the required “good reasons” in the notice of determination for the weight given.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of

service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local

Rule 72.1(d). Failure to file specific objections constitutes a waiver of any

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of

Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that

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raise some issues but fail to raise others with specificity will not preserve all the

objections a party might have to this Report and Recommendation. Willis v.

Sec’y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v.

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to Local Rule 72.1(d)(2), any objections must be served on this

Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to

Objection No. 2,” etc. If the Court determines that any objections are without

merit, it may rule without awaiting the response.

Date: September 11, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on September 11, 2015, I electronically filed the foregoing

paper with the Clerk of the Court using the ECF system, which will send

electronic notification to all counsel of record.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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