UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS WILLICK, 

Plaintiff, Civil Action No. 15-12406

v. District Judge LINDA V. PARKER

Magistrate Judge R. STEVEN WHALEN

 

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION 

Plaintiff Thomas Willick (“Plaintiff”) brings this action under 42 U.S.C. §405(g)

challenging a final decision of Defendant Commissioner denying his application for

Disability Insurance Benefits (“DIB”) under the Social Security Act. The parties have filed

cross-motions for summary judgment. Both motions have been referred for a Report and

Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons discussed below, 

I recommend that Plaintiff’s Motion for Summary Judgment (Dock. #9) be GRANTED and

that the case be REMANDED FOR AN AWARD OF BENEFITS. I further recommend that

Defendant’s Motion for Summary Judgment (Dock. #10) be DENIED.

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PROCEDURAL HISTORY

On December 17, 2012, Plaintiff applied for DIB, alleging disability as of May 5,

2007 (Tr. 201). Following the initial denial of benefits, Plaintiffrequested an administrative 1

hearing, held on March 24, 2014 in Oak Park, Michigan (Tr. 41). Administrative Law Judge

(“ALJ”) Patricia S. McKay presided. Plaintiff, represented by attorney Donald Busta, Jr.,

testified (Tr. 47-67), as did Vocational Expert (“VE”) Judith Findora (Tr. 67-78). On May

20, 2014, ALJ McKay found Plaintiff not disabled (Tr. 92-110). On August 14, 2014, the

Appeals Council remanded the case forfurther consideration, finding that the ALJ’s rationale

for rejecting a treating physician’s (Dr. Nabity’s) opinion contained a mischaracterization of

the objective findings (Tr. 112-113). The Appeals Council noted that the ALJ could request

additional evidence “and/or clarification” of the treating opinion “as appropriate” (Tr. 113). 

The Appeals Council also stated that “[i]f warranted by the expanded record,” the ALJ

should “obtain supplemental evidence from a vocational expert . . .” (Tr. 113). 

ALJ McKay held a second hearing on January 26, 2015 at which time Plaintiff

supplemented his testimony (Tr. 29, 35-39). On March 18, 2015, ALJ McKay found that

Plaintiff was capable of performing his past relevant work as a production manager (Tr. 22-

24). On May 15, 2015, the Appeals Council denied review (Tr. 1-3). Plaintiff filed suit in

this Court on July 6, 2015. 

Plaintiff later amended his onset date to April 23, 2012 (Tr. 11). 1

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 BACKGROUND FACTS

Plaintiff, born May 4, 1955, was 60 when ALJ McKay issued her decision (Tr. 24,

201). He completed 12 grade and worked previously as an “area manager” (production th

manager) (Tr. 134-135). His application for benefits alleges disability as a result of spinal

stenosis and nerve problems in the legs and arms (Tr. 227). 

A. Plaintiff’s Testimony

1. March 24, 2014 Hearing

Plaintiff’s counsel prefaced his client’s testimony by amending the alleged onset

date to April 23, 2012 (Tr. 45). 

Plaintiff then offered the following testimony:

He lived in a one-story house in Sterling Heights, Michigan with his disabled wife (Tr.

48). He stood 6' 1", weighed 210, and was left-handed (Tr. 49). He had not used the

basement of his house in over a year (Tr. 49). In additional to a high school education, he

had taken college classes at a local community college (Tr. 50). His former managerial job

at an automotive prototype company required him to attend meetings, fill in for absent

workers in various departments, organize work schedules, travel to different plants, and

participate in hiring and firing decisions (Tr. 51-53). He was laid off from his position in

2008 (Tr. 54). 

His condition of spinal stenosis was characterized by pain radiating to both lower

extremities (Tr. 54). The pain from his knees to feet was worse than the hip to knee pain (Tr.

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54-55). He had not left the house more than twice in the past year (Tr. 55). He collected

unemployment benefits for approximately one year after being laid off but had since been

living off his savings and retirement account (Tr. 55). He held a current driver’s license but

had not driven in two years (Tr. 56). 

Plaintiff spent most of his waking hours alternating between standing, brief walking,

and reclining (Tr. 56). He required the use of a shower chair while bathing (Tr. 57). Due to

balance problems, he used a cane or walker and avoided leaving the house (Tr. 57). He had

declined a recommendation for surgery due to his lack of insurance and his fear of surgical

complications (Tr. 59). In addition to the stenosis, he experienced right shoulder tightness

and anxiety (Tr. 60). He took Morphine six times a day and experienced the side effect of

drowsiness (Tr. 61). He smoked between one and one-and-a-half packs of cigarettes each

day and consumed three or four beers each week (Tr. 62). 

In response to questioning by his attorney, Plaintiff testified that he had undergone

numerous epidural injections since 2012 but did not experience relief for more than a few

days (Tr. 65). He reported that taking Morphine did not eliminate his pain (Tr. 65). He

estimated that he could stand or sit for 15 minutes before requiring a position change (Tr. 65-

66). He stated that leg pain obliged him to recline up to eight times a day (Tr. 66). He

testified that he would “consider” surgery, but would also “weigh some other options” (Tr.

66). 

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2. January 26, 2015 Hearing 

ALJ McKay reexamined Plaintiff briefly at the second hearing. 

Plaintiff offered the following testimony:

Since the previous hearing he continued to take Morphine and undergo steroid

injections (Tr. 35). He had not attended classes or received additional job training since the

first hearing (Tr. 35). He experienced occasional falls (Tr. 36). 

In response to questioning by his attorney, Plaintiff testified that he had scheduled a

surgical consultation after having been recently approved for health insurance (Tr. 38). 

B. Medical Evidence2

1. Treating Sources

 a. Records Predating April 23, 2012

May, 2008 imaging studies of the right shoulder showed minor osteoarthrosis (Tr.

452). Imaging studies of the thoracic spine showed mild to moderate diffuse spondylosis (Tr.

452). September, 2008 cardiologicalrecords state that Plaintiff admitted “to some occasional

binge drinking” (Tr. 280). June, 2010 treating notes state that Plaintiff took a fall while

mowing his lawn and that he was “feeling very well” until the accident (Tr. 322). X-rays of

the lumbar spine show spondylitis spurs at L2 and L3 (Tr. 447). August, 2010 treating

records state that Plaintiff hurt his back stepping onto his boat (Tr. 321). He reported

Medical records pertaining to conditions unrelated to the disability claim, while 2

reviewed in full, are omitted from the present discussion. 

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minimal relief from Vicodin (Tr. 321). March, 2012 records by Ruth A. Rydstedt, M.D.

state that Plaintiff’s wife reported that he was “drinking heavily” (Tr. 320). 

b. Records Created During the Relevant Period

In April, 2012, Dr. Rydstedt opined that lower extremity neuropathy was secondary

to alcohol abuse (Tr. 317). However, an EMG performed the same month byThomas Nabity

Jr., M.D. were consistent with active and chronic lumbar radiculopathy (Tr. 302-302). In

May, 2012, Dr. Rydstedt observed that recent studies showed moderate degenerative

spondylolithiasis of the thoracic spine and active and chronic lumbar radiculopathy at L4

through S1 and noted that a recent epidural injection was effective for only one week (Tr.

293, 302-303, 315, 446, 455). Dr. Rydstedt found that Plaintiff’s thigh pain was consistent

with spinal stenosis, noting “some arthritis and spasms” (Tr. 294-295). Treating notes by

Dr. Nabity note the presence of low back pain and radiculopathy (Tr. 465). 

Dr. Rydstedt’s June, 2012 records note a history of chronic back pain (Tr. 292). The

following month, Dr. Nabity administered a second injection (Tr. 464). In October, 2012,

he sought treatment for broken ribs (Tr. 291, 313). In November, 2012, Plaintiff sought

treatment for kidney stones (Tr. 288-289, 310, 387). The same month, a CT of the brain

showed unremarkable results (Tr. 297, 444). In December, 2012 and January, 2013, Dr.

Nabity administered steroid injections (Tr. 462). 

In January, 2013, Dr. Nabity completed an assessment of Plaintiff’s work-related

abilities, restricting lifting to 10 pounds on an occasional basis; standing or walking to less

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than two hours in an eight-hour period; and sitting for less than six-hours (Tr. 467). Dr.

Nabity found that Plaintiff experienced restrictions in lower extremity pushing and pulling

on the basis of MRI reports and “strength exams” (Tr. 467). He precluded all climbing,

balancing, kneeling, crouching, and crawling due to frequent falls resulting from severe

stenosis (Tr. 467). He found that vibration, humidity, height, and temperature extremes

could cause the symptoms to worsen (Tr. 468). In May, 2013, Dr. Nabity administered 

another steroid injection (Tr. 481). In July, 2013, Plaintiff reported generally good health

(Tr. 485). The same month and in August, November, and December, 2013, Dr. Nabity

administered steroid injections without complications (Tr. 487, 489, 494, 497). Dr. Nabity’s

December, 2013 notes show that Plaintiff was prescribed MS Contin and Percocet for back

pain (Tr. 504). 

In December, 2013, Dr. Nabity, M.D. composed a disability opinion, noting severe

nerve root compression at L5-S1 due to disc herniations and spinal stenosis (Tr. 477). He

found that Plaintiff was currently unable to perform even sedentary work (Tr. 477). Dr.

Nabity opined that Plaintiff’s prognosis for returning to work would be “excellent” if he

underwent surgery (Tr. 477, 499). 

c. Records Created After the December 31, 2013 Expiration of DIB

In March, 2014, Dr. Nabity administered a steroid injection (Tr. 529). Dr. Nabity’s

July, 2014 records note Plaintiff’s report of level “7-8” back pain on a scale of 1 to 10 (Tr.

531). Plaintiff reported that he was unable to continue with injections due to financial

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constraints and was using a cane given to him by a friend (Tr. 531). In August, 2014, Dr.

Nabity reinterated that Plaintiff was incapable of performing even sedentary work (Tr. 507). 

He noted that while Plaintiff had been unable to afford an MRI, EMG studies were consistent

with lumbar radiculopathy fromL4 through S1 (Tr. 507). In October, 2014, Dr. Nabity noted

that Plaintiff had developed bed sores (Tr. 535). A December, 2014 MRI of the lumbar spine

showed “moderate central canal stenosis and compromise of the L5 nerve roots” (Tr. 540). 

An MRI of the cervical spine showed severe stenosis with nerve root compromise at C6 (Tr.

554). The same month, Dr. Nabity administered a steroid injection (Tr. 541). EMG studies

showed bilateral Carpal Tunnel Syndrome (“CTS”) and bilateral radiculopathyat C7-C8 (Tr.

550). Treating records by John Santa, D.O. note Plaintiff’s report of upper extremity

weakness and tingling (Tr. 543). 

In January, 2015, Dr. Nabity once again opined that Plaintiff was disabled, noting

MRIs of the cervical and lumbar spine showing severe stenosis; EMGs of the upper

extremity showing significant nerve damage; and Plaintiff’s failed response to conservative

treatment (Tr. 548). 

2. Non-Treating Sources 

In March, 2013, Ernesto Bedia, M.D. performed a consultative physical examination

on behalf of the SSA, noting Plaintiff’s report of long-term lower back pain (Tr. 469). 

Plaintiff reported that he could sit for up to one hour in a chair and “drive for half . . . an hour

in his pick-up truck (Tr. 469). Dr. Bedia noted the absence of muscle spasms and a stable

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gait (Tr. 470). He observed a full range of movement (Tr. 471). 

In April, 2013, Muhammad Ahmed, M.D. performed a non-examining review of the

medical records on behalf of the SSA, finding that Plaintiff was capable of lifting 20 pounds

occasionally and 10 frequently; sitting, standing, or walking for up to six hours in an eighthour workday; and pushing and pulling without limitation (Tr. 87). He found that Plaintiff

was limited to occasional climbing, balancing, stooping, kneeling, crouching, and crawling

(Tr. 87-88). He found that Plaintiff could return to his work as a production manager as the

job was “generally performed” in the national economy (Tr. 89). 

C. Vocational Expert Testimony

VE Judith Findora classified Plaintiff’s past job as a production manager as skilled

and exertionally light (exertionally medium as performed) (Tr. 68). She testified that

3

Plaintiff had the transferrable skills of “general clerical skills, business math, budgeting

skills, advanced communications, supervision skills, computer usage, report writing, file

maintenance, manufacturer, manufacturing processes, and . . . human resource development

3

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds;” medium work as “lifting no more than 50 pounds at

a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and that

exertionally heavy work “involves lifting no more than 100 pounds at a time with frequent

lifting or carrying of objects weighing up to 50 pounds. Very Heavy work requires “lifting

objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects

weighing 50 pounds or more. § 404.1567(e). 

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skills and hiring, training, evaluating and terminating employees” (Tr. 69). The VE found

that Plaintiff would require more than 30 days to adjust to a new position (Tr. 70). ALJ

McKay then described a hypothetical individual of Plaintiff’s age, education, and work

experience limited to exertionally light work with the following additional restrictions:

This person needs to be limited to occasionally climbing stairs, crouching and

crawling, kneeling and stooping and bending. Those types of environments. 

He would need to avoid work place hazards, which would be dangerous

moving machinery, unprotected heights or climbing ladders. He would be

unable to use foot controls (Tr. 71). 

The VE testified that the above limitations would allow for Plaintiff’s past relevant

work as a production manager as the position was performed in the national economy insofar

as the position would be limited to a “prototype environment” (Tr. 73). She found that the

former job of production manager would allow for an adjustment to the exertionally light

positions of production clerk (2,100 positions in the regional economy); automotive service

technician (Tr. 1,200); and assemblers (5,500). 

The VE testified that none of Plaintiff’s skills were transferrable to the sedentary level

(Tr. 74). She stated that none of above-stated positions would allow the individual to work

at his own pace or use a cane (Tr. 74-75). She testified that the need for a sit/stand option

would eliminate the productionmanager and auto technician positions, reduce the production

clerk numbers by 50 percent and the assembler numbers by 60 percent (Tr. 75-76). The VE

testified that if Plaintiff’s testimony were fully credited, he would be unable to perform any

of the jobs due to his need to recline multiple times a day and the inability to stay on task (Tr.

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76). She stated that her testimony was not inconsistent with the information found in the

Dictionary of Occupational Titles (“DOT”) and Selected Characteristics of Occupations 

(Tr. 76-77). 

D. The ALJ’s Decision

Citing the medical records, ALJ McKay found the severe impairments of “multilevel

degenerative disc disease ofthe thoracic and lumbar spine; lumbar radiculopathy; and history

of alcohol abuse,” but that none of the impairments met or medically equaled an impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13-16). (Tr. 13). She found that the

condition of anxiety was non-severe (Tr. 14-15). She found that Plaintiff retained the 

residual functional capacity(“RFC”) for light work with the following additional limitations: 

[No more than] occasional crouching, crawling, stooping, kneeling, bending,

and climbing stairs; jobs that avoid workplace hazards such as moving

machinery, unprotected heights and climbing ladders; as well as work that

avoids operating foot controls (Tr. 16). 

The ALJ found that Plaintiff could perform his past relevant work as a production manager

and the exertionally light jobs of production clerk, automotive service technician, and

assembler (Tr. 22-23). 

The ALJ discounted the allegations of disability, stating that Plaintiff denied back and

lower extremity problems on numerous occasions (Tr. 18-19). She noted that Dr. Nabity’s

disability opinion was unaccompanied by clinical examination findings (Tr. 19). She also

noted that Dr. Nabity’s August, 2014 opinion post-dated the December 31, 2013 expiration

of benefits (Tr. 19). 

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STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. 

th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

 FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as the “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

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to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof at steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

Plaintiff disputes the finding that he is capable of performing either his past relevant

work, jobs using transferrable skills, or any other exertionally light work. Plaintiff’s Brief,

7-9, Docket #9. He disputes the RFC crafted by the ALJ, contending that the treating records

overwhelmingly support the conclusion that he is unable to perform light work. Id. Plaintiff

argues that the RFC for light work is tainted by the ALJ’s erroneous rejection of Dr. Nabity’s

multiple disability opinions. Id. at 7. 

The RFC describes an individual's residual abilities. Howard v. Commissioner of

Social Security, 276 F.3d 235, 239 (6th Cir.2002). “RFC is to be an 'assessment of

[Plaintiff's] remaining capacity for work' once her limitations have been taken into account”

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Id. (citing 20 C.F.R. § 416.945); § 404.1545. In determining a person's RFC, it is necessary

to consider (1) objective medical evidence as well as (2) subjective evidence of pain or

disability. 20 C.F.R. § 404.1545(a)(1)(RFC must be based on all “relevant evidence”). The

RFC must consider the alleged physical, mental, and environmental restrictions. §

404.1545(b-d).

The ALJ determined that Plaintiff could perform his past relevant work or jobs using

transferrable skills at Step Four of the sequential analysis (Tr. 22-23). The fact that she

found that Plaintiff was unable to do his former job “as performed” did not by itself prevent

a finding of non-disability at Step Four. A Step Four determination can be supported by the

finding that claimant can perform past relevant work as “actually performed,” or, “as

generally required by employers throughout the national economy”. SSR 82–61, 1982 WL

31387, *2 (1982). At Step Four, claimant “bears the burden of proving the existence and

severity of limitations” and that “he is precluded from performing [the] past relevant work”

either as previously performed or as generally required in the national economy. Jones v.

Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). 

The ALJ accorded “no persuasive weight” to Dr. Nabity’s multiple opinions of

disability. In support of her finding, she found that the Dr. Nabity’s opinions were

unsupported by the treatment notes and Plaintiff’s own account of his condition (Tr. 19-20). 

She stated that Dr. Nabity’s August, 2014 letter detailing the physical limitations did not

indicate whether Plaintiff experienced the limitations prior to the December 31, 2013

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expiration of benefits. 

The ALJ acknowledged that Plaintiff sought treatment from Dr. Rydstedt in April,

2012 for back pain with lower extremity weakness and that an EMG of the lower extremities 

(performed the same month by Dr. Nabity) showed bilateral chronic lumbar radiculopathy

(Tr. 303). In contrast, the ALJ’s account of the subsequent medical evidence and Dr.

Nabity’s multiple disability opinions reflect a myopic, if not distorted reading of the record. 

The ALJ found that a June, 2012 examination was “completely normal” (Tr. 18). However, 

the cited records primarilyaddress Plaintiff’s long-standing conditions of heart problems and

elevated blood sugar rather than the back condition (Tr. 292). At no point did Plaintiff allege

work-related limitations resulting fromeither condition (Tr. 227). The same treating records

actually state that Plaintiff continued to experience “chronic back pain” (Tr. 292). While the

ALJ discounted Dr Nabity’s opinion on the basis that the injection records did not include

any diagnostic findings, his records from July, 2012 forward state a diagnosis of “low back

pain” with “radiculopathy,” which is wholly consistent with his EMG findings (Tr. 465, 479,

481). 

The ALJ made additional erroneous findings. She cited Dr. Rydstedt’s November,

2012 report, noting that Plaintiff “admitted that he was no longer having any back pain” (Tr.

18). However, Dr. Rydstedt’s notes, stating that Plaintiff had “no further back or abdominal

pain,” actually refer to pelvic/back pain resulting from a kidney condition (Tr. 288-289,

298)(emphasis added). While the ALJ cited Dr. Nabity’s July, 2013 notes stating that

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Plaintiff admitted “good health,” the review of systems was apparently generated for the

purpose of clearing Plaintiff for additional epidural injections (Tr. 485), to address his

chronic back pain and radiculopathy. More obviously, the ALJ fails to note that Plaintiff did

not visit the neurologist and submit to a review of systems check to report “good health,” but

rather, to obtain another epidural injection for the clinically confirmed condition of lower

extremity radiculopathy (Tr. 485). Likewise, the ALJ’s citation to August, November, and

December, 2013 records showing a lack of joint pain, swelling, or stiffness omits recognition

that the review of systems was generated for the purpose of clearing Plaintiff for additional

injections (Tr. 18). 

The ALJ’s rejection of Dr. Nabity’s January, 2013, December, 2013, August, 2014,

and January, 2015 opinions is also based on a strained interpretation of the record. The ALJ

accorded “no persuasive weight” to Dr. Nabity’s statements on the basis that he “never once

provided any physical or clinical examination findings in his treatment notes to translate that

objective evidence into any function by function limitation[]” (Tr. 19). However, as noted

above, Dr. Nabity performed the April, 2012 EMG studies and made the original diagnosis

of lower extremity radiculopathy. Subsequent injection records byDr. Nabity note that same

diagnosis. Dr. Nabity’s January, 2013 work assessment states that his findings were based

on MRI reports and “strength exams” (Tr. 467). Although the medical records indicate that

Plaintiff did not obtain an MRI until December, 2014, there is no reason to doubt that Dr.

Nabity performed strength assessments during at least one of Plaintiff’s multiple treatment

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sessions which began in April, 2012 after the EMG tests showed radiculopathy. While

Plaintiff had not obtained an MRI as of the date of Dr. Nabity’s December, 2013 disability

opinion, Dr. Nabity’s finding that Plaintiff experienced “severe nerve root compression” due

to disc herniations was wholly confirmed by a later MRI showing compromise of the L5

nerve root (Tr. 540). 

Likewise, the ALJ’s rejection of Dr. Nabity’s August 27, 2014 opinion on the basis

that he did “not indicate that the findings date prior to the date last insured,” (Tr. 19, 507)

does not constitute “good reasons” for discounting the treating opinion. Gayheart v. CSS,

710 F.3d 365, 376 (6th Cir. 2013); Wilson v. CSS, 378 F.3d 541, 544 (6th Cir. 2004); 20

C.F.R. § 404.1527(c)(2)(ALJ must provide “good reasons” for discounting a treating

source’s opinion). Dr. Nabity’s letter states explicitly that he composed the letter in the

response to the Appeals Council’s August 14, 2014 remand order for additional evidence

“and/or clarification” of his previous opinion, composed prior to the December 31, 2013

expiration of benefits (Tr. 113). The August, 2014 letter in which Dr. Nabity states that he

“would like to add” to his December, 2013 statement implies that he is referring to Plaintiff’s

condition before the expiration of benefits. (Tr. 507). 

4

 Even assuming that the ALJ was confused as to whether the letter referenced 4

Plaintiff’s condition prior to December 31, 2013, the proper remedy would be to contact

the physician for clarification. 20 C.F.R. § 404.1520b(c)(1). The ALJ’s failure to

recontact Dr. Nabity for clarification is particularly troublesome, given that theAppeals

Council earlier rejected her original basis for discounting Dr. Nabity’s opinion (Tr. 112-

113). Standing alone, the ALJ’s failure to inquire whether Dr. Nabity’s opinion letter of

August, 2014 refers to Plaintiff’s condition prior to the expiration of benefits cast doubt

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The ALJ’s heavy reliance on Dr. Ahmed’s April, 2013 non-examining review of the

medical records is also problematic (Tr. 20). First, Dr. Ahmed’s conclusion that Plaintiff was

capable of exertionally light work was made without the benefit of either the later records

showing that Plaintiff continued to receive steroid injections through the date last insured of

December 31, 2013, or Dr. Nabity’s December, 2013 finding that nerve root compression

prevented even sedentary work (Tr. 477). As a rule, “updated” medical records are to be

accorded more weight than older ones. See Hamblin v. Apfel, 7 Fed.Appx. 449, 451, 2001

WL 345798, *2 (6th Cir. March 26, 2001)(affirming an ALJ's rejection of a treating

physician's “outdated” opinion on the basis that a consultive physician had performed a more

recent appraisal with contradicting findings). The records post-dating Dr. Ahmed’s

5

assessment show treating opinions of greater physical restriction, additional steroid

injections, and prescriptions for opioid pain medication (Tr. 477, 504). The increased weight

accorded to updated medical information is especially appropriate here, where in contrast to

Dr. Ahmed’s findings, much of the newer evidence was provided by a treating source. See

Sayles v. Barnhart, 2004 WL 3008739, *23 (N.D.Ill. December 27, 2004) (adoption of

“outdated and inadequate” non-treating findings created prior to a diagnosis of diabetes

constituted error).

on her treating physician analysis. 

The fact that in Hamblin the “outdated” report was five years old and Dr. 5

Ahmed’s report was created approximately 20 months before the expiration of benefits

does not change the analysis. The treating records, disability opinions, and imaging

studies post-dating the April, 2013 review reflect a greater degree of limitation. 

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Second, while the record indicates that Plaintiff was unable to afford an MRI before

the end of the relevant period, the MRI of the lumbar spine taken the following year is

entirely consistent with Dr. Nabity’s earlier restrictions (Tr. 540). The treating records do

not contain any indication that Plaintiff’s condition deteriorated dramatically in the 11

months following the expiration of benefits. As such, although the study post-dates the

expiration of benefits, it is probative of Plaintiff’s condition before December 31, 2013. 

Moreover, the ALJ failed to acknowledge the significance of other evidence

supporting the well-documented limitations resulting from the Plaintiff’s spinal condition. 

For example, while she noted that Plaintiff sought treatment for “a sore on his buttocks,” she

neglected to point out that he received a diagnosis of “bed sores” resulting from sitting in

one position for extended periods due to back pain (Tr. 508, 535). The ALJ cited Dr.

Bedia’s March, 2013 consultative report stating that Plaintiff could drive his truck for half

an hour to discredit Plaintiff’s March, 2014 testimony that he had not driven in two years (Tr.

21, 56). However, it is unclear from Dr. Bedia’s notes whether Plaintiff had actually driven

in the year before the consultative examination (Tr. 469). As such, the consultative report

and Plaintiff’s testimony are not necessarily inconsistent. Certainly, Dr. Bedia’s account

does not state that Plaintiff was able to drive regularly or for any extended period. The

treating records documenting ongoing back problems, the imaging studies, and the diagnosis

of bed sores resulting from inactivity strongly support his claims that he was immobilized by

the back condition. 

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For these reasons, a remand is required. Where “all essential factual issues have

been resolved,” a remand for an award of benefits is appropriate. Faucher v. Secretary of

Health and Human Services, 17 F.3d 171, 176 (6th Cir.1994). The Commissioner “faces a

heavier burden when denying disability benefits to older claimants.” Preslar v. Secretary of

Health and Human Services, 14 F.3d 1107, 1111 (6th Cir.1994). “People of advanced age

(55 and over) are considered at an age which significantly affects their ability to do

substantial gainful activity; if they are severely impaired and cannot do medium work, they

must have skills that can be transferred to less demanding jobs which exist in significant

numbers in the national economy” to avoid a finding of disability. Id.; 20 C.F.R. §

404.1563(d). Thus, a finding that Plaintiff, 58 at the date last insured, is unable to perform

any of his past relevant work, does not possess transferrable skills, and is restricted to

exertionally light or sedentary work would direct a finding of disability. 20 C.F.R. Pt. 404,

Subpt. P, App. 2 § 202.04. 

The record in this case shows that this 58-year-old Plaintiff, who suffers from welldocumented and long-standing, intractable back pain, has met his Step Four burden of

showing that he is incapable of performing his past relevant work. The record does not

support a finding that he could perform more than sedentarywork. It is important to note that

the VE testified that Plaintiff would be unable to perform his past relevant work at the

sedentary level, or jobs using his transferrable skills (Tr. 74). Therefore, the ALJ would be

precluded from making yet another Step Four finding. 

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The ALJ’s finding of non-disability is not supported by substantial evidence, and the

Plaintiff is therefore entitled to a remand for an award of benefits.

CONCLUSION

For these reasons, Irecommend thatPlaintiff’s Motion for SummaryJudgment (Dock.

#9) be GRANTED and that the case be REMANDED FOR AN AWARD OF BENEFITS,

retroactive April 23, 2012. I further recommend that Defendant’s Motion for Summary

Judgment (Dock. #10) be DENIED. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which 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. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

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

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. 

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 Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained

within the objections. 

Dated: June 14, 2016 s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE

I hereby certify on June 14, 2016 that I electronically filed the foregoing paper

with the Clerk ofthe Court sending notification ofsuch filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following

non-registered ECF participants June 14, 2016.

s/Carolyn M. Ciesla 

Case Manager for the 

Honorable R. Steven Whalen 

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