UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

SUSAN ROWE,

Plaintiff, Civil Action No.: 14-14498

 Magistrate Judge Elizabeth A. Stafford

v. 

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

OPINION AND ORDER ON PLAINTIFF’S MOTION FOR REMAND [R. 15]

AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [R. 17]

Plaintiff Susan Rowe appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying her application 

for Disability Insurance Benefits (“DIB”) and Supplement Security Income 

(“SSI”) under the Social Security Act (the “Act”). Both parties consented to 

conduct all proceedings before this Court [R. 21]. For the reasons stated 

on the record during the hearing on December 10, 2015, and as described 

below, the Court GRANTS Rowe’s motion for remand [R. 15] and DENIES

the Commissioner’s motion for summary judgment [R. 17]. 

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I. ANALYSIS

Rowe raises two issues: (1) that the administrative law judge (ALJ) 

failed to properly consider the treating physicians’ opinions; and (2) that the 

ALJ failed to consider the lay testimony of Robert Pratchshler, Jr., who is 

Rowe’s live-in boyfriend. Both of these arguments have merit.

A.

The ALJ failed to properly consider the opinions of Kevin B. 

Robinson, M.D., an orthopedic surgeon who regularly treated Rowe 

beginning in January 2010. Before addressing the ALJ’s treatment of Dr. 

Robinson’s opinions, it is necessary to discuss Rowe’s relevant orthopedic 

treatment,

1 which included five surgical procedures and several setbacks 

between her August 2009 onset date and the July 2013 hearing date. 

Rowe twisted her left knee on July 24, 2009 while working as a 

certified nursing assistant. [R. 12-7, Tr. 339, 344, 372]. She was thereafter 

found incapable of working and referred to orthopedic specialist William 

Martin, M.D. [Id., Tr. 344, 366]. In September 2009, an MRI revealed that 

Rowe had a meniscus tear, and Dr. Martin conducted a left knee partial 

meniscectomy and chondroplasty of the patella the following month. [Id., 

 1 This medical history will not include discussion of Rowe’s physical therapy 

or evaluations by non-treating sources. That evidence is relevant to the 

overall question regarding Rowe’s eligibility for DIB or SSI benefits, but not 

essential for the questions currently before the Court.

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Tr. 344-47, 349]. Dr. Martin put Rowe on off-work status until November 

11, but she remained symptomatic after that date, and thus sought 

emergency room relief for knee pain and numbness from her knee to her 

foot on November 13. [Id., Tr. 357-59]. 

Dr. Robinson took over Rowe’s orthopedic care in January 2010, at 

which time he diagnosed her with a medial meniscus tear, anterior horn 

tear and MCL sprain, prescribed physical therapy and issued her an offwork slip until February 22, 2010. [Id., Tr. 337-39, 342; R. 12-8, Tr. 626-

28]. A few days later, an MRI confirmed another meniscus tear within the 

left knee, so Dr. Robinson performed an arthroscopic surgery in February 

2010. [R. 12-7, Tr. 282-85, 340-41, 479-80; R. 12-8, Tr. 624]. 

Dr. Robinson initially issued Rowe an off-work slip with an expected

return of March 29, 2010. [R. 12-7, Tr. 456; R. 12-8, Tr. 624, 643]. 

However, he extended Rowe’s off-work status until June 10, 2010 based 

on later clinical exam findings, including pain, swelling, spasms, muscle 

atrophy, use of a cane, tenderness, and the like. [R. 12-8, Tr. 609, 613, 

616, 620, 640-42]. Afterwards, Rowe wanted to try to return to work, which 

Dr. Robinson permitted with restrictions. [R. 12-8, Tr. 592, 594, 600, 605, 

636-39]. However, by mid-November 2010, Rowe was complaining of 

severe knee pain, and presented with an antalgic gait, tenderness, and 

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atrophy of a calf muscle. [Id., Tr. 558]. Dr. Robinson and Rowe agreed to 

knee replacement surgery, which was originally slated for January 2011, 

but did not occur until August 2011. [R. 12-7, Tr. 398, 427-28, 490-92; R. 

12-8, Tr. 581, 584]. Dr. Robinson issued Rowe off-work slips and 

completed an application for a handicapped parking pass for six months 

after surgery, indicating that Rowe could not walk more than 200 feet 

without having to stop and rest due to arthritis in her left knee and planned 

partial knee replacement. [R. 12-7, Tr. 398; R. 12-8, Tr. 579, 635].

On November 3, 2011, after a course of physical therapy, Rowe 

returned to Dr. Robinson reporting a desire to return to work, despite the 

presence of an antalgic gait, discomfort with ambulation and pain radiating 

to her left groin, back and buttocks. [R. 12-8, Tr. 569]. Dr. Robinson 

suggested hip injections, and issued Rowe a work slip limiting her to no 

more than an 8-hour day. [Id., Tr. 569, 634]. A month later, Rowe returned 

complaining of severe left hip and low back pain. [Id., Tr. 568]. Upon 

examination, she was found to have an antalgic gait, minimal left knee joint 

effusion, some lower back spasm, an exquisitely tender sacroiliac joint, and 

pain with passive range of motion of her hip. [Id.]. Dr. Robinson prescribed 

hip and sacroiliac joint injections. [Id.]. 

In January 2012, Rowe returned reporting no improvement after the 

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sacroiliac joint injection, and was found to have a significantly antalgic gait, 

paresthesia on palpitation of the left leg, a positive straight leg raising test 

and significant discomfort with passive range of motion of her left hip. [Id., 

Tr. 565]. She was diagnosed with a possible herniated nucleus pulposus at 

L5-S1 with radiculopathy, so Dr. Robinson ordered an MRI and gave her an 

off-work note. [Id.]. The MRI showed degenerative disc disease and mild 

foraminal narrowing at L3-4 and L4-5, a broad based disc protrusion at L3-

4 with thecal sac effacement, and a disc bulge at L4-5. [R. 12-7, Tr. 391]. 

In February 2012, Dr. Robinson administered a hip injection, which 

was a surgical procedure requiring general anesthesia. [R. 12-7, Tr. 423-

24]. He thereafter signed another off-work slip until April 2012, and another 

application for a handicapped parking placard, stating that she could not 

walk more than 200 feet without having to stop and rest. [Id., Tr. 397, 423-

24; R. 12-8, Tr. 633]. In March, Rowe treated at a pain clinic where she 

received three spinal injections, but she told Dr. Robinson afterwards that 

her back and hip felt worse. [Id., Tr. 541-51, 557-58]. At that April 2012 

appointment, she presented as very uncomfortable, with hip pain and some 

calf numbness. [Id., Tr. 557-58]. Rowe requested another injection but, 

two weeks later, she presented to Dr. Robinson with no improvement and 

exhibiting severe pain with limited hip range of motion, a positive straight 

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leg raising test on the left, sacroiliac joint tenderness and a slight limp. 

Despite the risks discussed, Rowe elected to have hip surgery, which she 

underwent in June. [Id., Tr. 554-58]. Dr. Robinson recommended that 

Rowe remain off work “secondary to her knee, hip and back problems” until 

about August 2012. [Id., Tr. 558; R. 12-9, Tr. 781]. Due to complications, 

Rowe emerged from surgery with her left leg slightly longer than her right. 

[Id., Tr. 686-87, 740-42]. 

In October 2012, Dr. Robinson noted that Rowe had an antalgic gait, 

tenderness over the gluteus, and pain with active hip range of motion. [R. 

12-9, Tr. 773-74]. He found that her radiculopathy had been improving, but 

recommended continuing physical therapy and that she remain off work 

until her next follow-up appointment. [Id.]. 

Dr. Robinson saw Rowe again in January 2013, at which time she 

reported constant pain, difficulty getting in and out of bed due to spasms, 

and difficulty squatting, kneeling, stairs, walking and standing. [Id., Tr. 770-

72]. An exam revealed moderate pain, spasm and tenderness along the 

left paravertebral muscles, restricted left hip range of motion, and 

tenderness over the trochanter and the left knee. [Id.]. Dr. Robinson 

diagnosed trochanteric bursitis, prescribed more physical therapy and 

continued her medications. [Id.]. 

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A month later, Rowe reinjured her left knee and hip after slipping on 

ice and falling on the left side of her body, necessitating emergency room 

treatment. [R. 12-8, Tr. 688-98]. Three days later, on February 5, 2013, 

Dr. Robinson observed Rowe to have an antalgic gait, obvious atrophy of 

the left buttock, good hip range of motion without discomfort, but 

tenderness in her left buttocks, sacroiliac joint and patella. [R. 12-9, Tr. 

766-79]. He diagnosed her with a knee and hip contusion and 

recommended conservative treatment, along with limited activities, 

including that she remain off work until February 2014. [Id.]. 

Dr. Robinson continued to treat Rowe again in March, April and May 

of 2013. She reported difficulty with lying on her left hip, stairs, weight 

bearing, walking and standing, and had an antalgic gait and atrophy of her 

left thigh and buttocks, with tenderness over her sacroiliac joint and 

trochanter, but no pain with range of motion. [Id., Tr. 760-74]. In April, Dr. 

Robinson opined, “At this time I do not believe that she can return to her 

previous level of work or any gainful employment because of pain and 

dysfunction.” [Id., Tr. 761]. The following month, Dr. Robinson indicated 

that Rowe was making some progress with conservative treatment and he

was continuing her treatment plan unchanged. [Id., Tr. 757-59]. 

On May 23, 2013, Dr. Robinson completed a disability application for 

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Rowe to discharge her student loan, diagnosing her with post-traumatic 

osteoarthritis of the left knee, osteoarthritis of the left hip and lumbago, and 

opining that she was unable to walk, sit or stand for more than an hour at a 

time and could lift nothing greater than ten pounds. [R. 12-6, Tr. 260-61]. 

Per the requirements of the application, (although the copy of the form in 

the record is difficult to read), Dr. Robinson certified that Rowe’s condition 

prevented her from engaging in substantial gainful activity and that it had 

lasted or could be expected to last at least 60 months. [Id.].2

B.

The “treating physician rule” requires an ALJ to give controlling 

weight to a treating physician’s opinion regarding the nature and severity of 

a claimant’s condition when that opinion is well-supported by medically 

acceptable clinical and diagnostic evidence, and not inconsistent with other 

substantial evidence. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723, 

727-29 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242-

43 (6th Cir. 2007). If an ALJ gives less than controlling weight to a treating 

source’s opinion, she must provide “good reasons” for doing so that are 

“supported by the evidence in the case record, and ... sufficiently specific 

to make clear to any subsequent reviewers the weight the adjudicator gave 

 2 https://www.disabilitydischarge.com/Forms/

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to the treating source's medical opinion and the reasons for that weight.” 

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013)

(quoting 20 C.F.R. § 404.1527(c)(2); SSR 96–2p, 1996 WL 374188, at *5 

(July 2, 1996)). “Even when not controlling, however, the ALJ must 

consider certain factors, including the length, frequency, nature, and extent 

of the treatment relationship; the supportability of the physician’s 

conclusions; the specialization of the physician; and any other relevant 

factors,” and give appropriate weight to the opinion. Gentry, 741 F.3d at 

723. This procedural safeguard not only permits “meaningful appellate 

review,” but also ensures that claimants “understand the disposition of their 

cases.” Rogers, 486 F.2d at 242–43 (internal quotation marks and citation 

omitted). The Court will “not hesitate to remand” when an ALJ's opinion 

“do [es] not comprehensively set forth the reasons for the weight assigned 

to a treating physician's opinion.” Cole v. Astrue, 661 F.3d 931, 939 (6th 

Cir. 2011) (internal quotation marks and citation omitted).

The treating physician rule is predicated on the detailed, longitudinal 

picture and unique perspective that such sources provide:

‘Generally, we give more weight to opinions from your treating 

sources, since these sources are likely to be the medical 

professionals most able to provide a detailed, longitudinal 

picture of your medical impairment(s) and may bring a unique 

perspective to the medical evidence that cannot be obtained 

from the objective medical findings alone or from reports of 

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individual examinations, such as consultative examinations or 

brief hospitalizations.’ 

Johnson v. Comm'r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011)

(quoting 20 C.F.R. § 404.1527(d)(2)). For these reasons, a treating 

physician’s opinion is entitled to great deference in all cases. Gentry, 741 

F.3d at 723.

In contradiction to the treating physician rule, the ALJ dedicated the 

majority of her analysis to detailing the findings of non-treating examiners, 

and she did not address the detailed, longitudinal picture provided by Dr. 

Robinson in his records and opinions. The ALJ’s scant analysis of Dr. 

Robinson’s opinions was as follows:

Kevin Robinson, M.D., the claimant’s primary treating 

physician, opined that the claimant is unable to return to work 

until February 6, 2014. (Exhibit 12F). Dr. Robinson 

subsequently stated that the claimant would be unable to 

perform any work due to pain and dysfunction. (Exhibit 16F). 

The issue is whether a claimant is disabled is a legal 

determination reserved to the Commissioner (20 CFR 

404.1527(e), 416.927(e), and Social Security Ruling 96-5p). 

Further, Dr. Robinson’s opinion is inconsistent with the opinion 

Dr. Grey, a state agency reviewing physician, who is familiar 

with the medical requirements of the Social Security disability 

program. (Exhibit 1A). Moreover, Dr. Robinson’s opinion is 

inconsistent with the claimant’s level of activity during the 

relevant period, in which she was able to attain an Associate’s 

degree, perform some household chores, and some yard work. 

Therefore, I assign little weight to Dr. Robinson’s opinion.

(R. 12-2, Tr. 39).

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This analysis is troublingly not only because it gives short shrift to Dr. 

Robinson’s extensive records and opinions; there are several other 

deficiencies. First, the ALJ referred only to two of Dr. Robinson’s off-work 

restrictions, whereas he imposed a no-work restriction at least 15 times, 

often prior to and following surgeries.3

 See Kennedy v. Comm'r of Soc. 

Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (claimants need period of 

recovery following surgery). Generally, Dr. Robinson’s no-work restrictions 

were time-limited, and both he and Rowe appeared to anticipate that she 

would recover and return to active employment. However, over and over, 

Rowe suffered setbacks requiring surgical or other intervention. This 

longitudinal picture and the support it provided for Dr. Robinson’s opinions 

were completely ignored by the ALJ.4

 

Additionally, Dr. Robinson provided medical opinions that described 

the nature and severity of Rowe’s conditions, and that were therefore 

entitled to controlling weight. Gentry, 741 F.3d at 723, 727-29; Rogers, 486 

F.3d at 242-43. Specifically, Dr. Robinson signed the March 2011 and 

 3 Dr. Robinson indicated that Rowe could not work on January 26, 2010, 

February 5, 2010, February 25, 2010, March 12, 2010, March 25, 2010, 

May 27, 2010, June 10, 2010, November 18, 2010, March 1, 2011, July 15, 

2011, November 3, 2011, February 14, 2012, May 8, 2012, February 5, 

2013 and April 30, 2013. 

4 The multiple surgeries and other setbacks that Rowe suffered call into 

question whether she was disabled for at least a closed-period. See

Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003).

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February 2012 applications for handicapped placards that limited Rowe to 

walking no more than 200 feet without needing to rest, and the May 23, 

2013 disability discharge form indicating that Rowe could not walk, sit or 

stand for longer than an hour at a time or lift greater than ten pounds. [R. 

12-6, Tr. 260; R. 12-7, Tr. 397-98]. These opinions fall within the treating 

physician rule. “The form of the opinion is not relevant as long as the 

opinion has some basis in the medical record.” Bailey v. Astrue, No. CIV09-281-FHS, 2010 WL 3834406, at *4 (E.D. Okla. Sept. 14, 2010) report 

and recommendation adopted, No. CIV-09-281-FHS-KEW, 2010 WL 

3856168 (E.D. Okla. Sept. 29, 2010). See also Grabczyk v. Astrue, No. 

CIV.A. 09-CV-02155, 2010 WL 3894113, at *8 (D. Colo. Sept. 30, 2010)

(disabled parking permit form was a medical opinion). 

Importantly, if given controlling weight, Dr. Robinson’s opinion that 

Rowe could not sit for longer than an hour at a time would disqualify her 

from sedentary work, which contemplates sitting for six out of eight hours. 

Moeller v. Comm'r of Soc. Sec., 489 F. App'x 868, 870 (6th Cir. 2012)

(citing S.S.R. 96–9P, 1996 WL 374185, at *3). In that case, the ALJ’s 

finding that Rowe has the residual functional capacity to perform sedentary 

work would be invalid. [R. 12-2, Tr. 35].

The ALJ’s reliance on the opinion of state agency reviewing physician 

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Natalie Gray, M.D., to discount the weight given to Dr. Robinson’s opinions 

was clearly erroneous. Generally, more weight is accorded to the opinions 

of treating physicians than to one-time examining or record-reviewing 

physicians, unless proper analysis of the factors for evaluating those 

opinions supports a contrary conclusion. § 404.1527(c)(2); Gayheart, 710 

F.3d at 380; Douglas v. Comm'r of Soc. Sec., 832 F. Supp. 2d 813, 824 

(S.D. Ohio 2011). Here, the ALJ did not properly analyze the factors of 

supportability, consistency and specialization required by § 404.1527(c)(2).

She did not find Dr. Gray’s opinion to be more supportable or consistent 

with the record; she in fact gave Dr. Gray’s opinion only limited weight. [R. 

12-2, Tr. 39]. Nor did the ALJ consider specialization, as evident by the 

fact that she misidentified Dr. Robinson as being Rowe’s primary treating 

physician rather than her orthopedic surgeon. [Id.]. 

The ALJ’s conclusory reference to Rowe’s activities of daily living as 

a reason for giving little weight to Dr. Robinson’s opinions also lacks merit. 

The ALJ cited Rowe’s ability to obtain an associate’s degree, do “some 

household chores, and some yard work” as being inconsistent with Dr. 

Robinson’s opinion. [R. 12-2, Tr. 39]. “Yet these somewhat minimal daily 

functions are not comparable to typical work activities.” Rogers, 486 F.3d

at 248. Moreover, the ALJ’s “fail[ed] to examine the physical effects 

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coextensive with the[ ] performance” of these daily activities, including that 

Rowe had to perform some incrementally, required assistance for others, 

and completed her associate’s degree online. Id. at 248-49; [R. 12-2, Tr. 

63-64, 66-68; R. 12-7, Tr. 378]. 

For these reasons, the Court finds that the ALJ failed to properly 

consider Dr. Robinson’s medical records and opinions, or to give good 

reasons for giving limited weight to those opinions.

C.

Rowe argues that the ALJ erred in failing to consider Pratchshler’s lay 

testimony. According to 20 C.F.R. § 404.1513(d)(4), the ALJ may consider 

non-medical sources including family members and friends. The Sixth 

Circuit has, furthermore, found that an ALJ’s duty to investigate and fully 

develop the record requires consideration of available lay witness 

testimony. “If lay witness testimony is provided, the ALJ cannot disregard it 

without comment, and must give reasons for not crediting the testimony 

that are germane to each witness.” Maloney v. Comm'r of Soc. Sec., 480 

Fed. Appx. *804, *810 (6th Cir. 2012). Nonetheless, an ALJ’s insufficient 

consideration of lay witness testimony is harmless error unless it would 

affect the disability decision and is fully supported by the reports of treating 

physicians. Id.; Simons v. Barnhart, 114 F. App'x 727, 733 (6th Cir. 2004).

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Here, Pratchshler testified that Rowe must lay down or recline several 

times a day due to pain, needs help with chores, has a hard time walking 

more than 20 to 30 minutes and must rest afterwards, and takes an 

inordinate amount of time mowing the lawn using their riding mower. [R. 

12-2, Tr. 80-82]. This testimony is consistent with Dr. Robinson’s opinions 

regarding Rowe’s sitting, walking and standing limitations, and general 

inability to engage in full-time employment. Thus, Pratchshler’s testimony 

undermines the ALJ’s reliance on Rowe’s daily activities as a justification 

for discounting Dr. Robinson’s opinion, and the ALJ’s disregard of his 

testimony is not harmless.

If, on remand, the ALJ determines that Pratchscher’s testimony lacks 

credibility, she must support that conclusion with sufficiently specific 

reasoning to allow for meaningful review. Maloney, 480 Fed. Appx. at 

*810; Rogers, 486 F.3d at 248.

D.

For the reasons stated above, the Court remands this matter to the 

Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for 

proceedings consistent with this opinion. On remand, the ALJ shall 

consider the record evidence and should solicit any other evidence 

necessary to make an appropriate decision.

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IT IS SO ORDERED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: December 17, 2015

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 17, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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