UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

THOMAS WILLICK, 

 Plaintiff, 

 Civil Case No. 15-12406 

v. Honorable Linda V. Parker 

CAROLYN W. COLVIN, ACTING 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

 / 

OPINION AND ORDER (1) ADOPTING IN PART AND REJECTING IN 

PART MAGISTRATE JUDGE’S JUNE 14, 2016 R&R; (2) GRANTING 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; (3) DENYING 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND (4) 

REMANDING MATTER TO THE COMMISSIONER OF SOCIAL 

SECURITY

Plaintiff applied for Disability Insurance Benefits (“DIB”) under the Social 

Security Act on December 13, 2012, alleging that he became disabled on April 23, 

2012. The Social Security Administration denied Plaintiff’s application for 

benefits initially. Upon Plaintiff’s request, Administrative Law Judge Patricia S. 

McKay (“ALJ”) conducted a de novo hearing on March 24, 2014. The ALJ found 

Plaintiff not disabled in a decision issued May 20, 2014. On August 14, 2014, the 

Appeals Council vacated the decision and remanded the case back to the ALJ with 

instructions to evaluate the opinion of Plaintiff’s treating physician, Thomas 

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Nabity, M.D. The ALJ held a new hearing on January 26, 2015, and issued a 

second decision finding Plaintiff not disabled on March 18, 2015. The ALJ’s 

decision became the final decision of the Social Security Commissioner 

(“Commissioner”) when the Social Security Appeals Council denied review. 

 On July 6, 2015, Plaintiff initiated the pending action challenging the 

Commissioner’s decision. The matter was referred to Magistrate Judge R. Steven 

Whalen on the same date “for determination of all non-dispositive motions 

pursuant to 28 U.S.C. § 636(b)(1)(A) and issuance of a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).” (ECF No. 2.) 

The parties subsequently filed cross motions for summary judgment. (ECF Nos. 9, 

10.) 

 On June 14, 2016, Magistrate Judge Whalen issued a Report and 

Recommendation (R&R) in which he recommends that this Court grant Plaintiff’s 

motion for summary judgment, deny the Commissioner’s motion, and remand the 

matter to the Commissioner for an award of disability benefits. (ECF No. 12.) At 

the conclusion of the R&R, Magistrate Judge Whalen advises the parties that they 

may object to and seek review of the R&R within fourteen days of service upon 

them. (Id. at Pg ID 653-54.) The Commissioner filed objections to the R&R on 

June 28, 2016. (ECF No. 13.)

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Standard of Review

 The Social Security Act provides: 

Any individual, after any final decision of the Commissioner of Social 

Security made after a hearing to which he was a party . . . may obtain 

a review of such decision by a civil action . . . The court shall have the 

power to enter . . . a judgment affirming, modifying, or reversing the 

decision of the Commissioner of Social Security, with or without 

remanding the cause for a rehearing. The findings of the 

Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . 

42 U.S.C. § 405(g) (emphasis added); see also Boyes v. Sec’y of Health and 

Human Servs., 46 F.3d 510, 511-12 (6th Cir. 1994). “Substantial evidence is 

defined as ‘such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.’ ” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th 

Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the 

Commissioner’s decision is supported by substantial evidence, the reviewing court 

must defer to that decision “ ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’ ” Longworth v. Comm’r of Soc. 

Sec. Admin. 402 F.3d 591, 596 (6th Cir. 2005) (quoting Warner v. Comm’r of Soc. 

Sec., 375 F.3d 387, 390 (6th Cir. 2004)). 

 The court reviews de novo the parts of an R&R to which a party objects. 

See Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 

2001). However, the Court “is not required to articulate all the reasons it rejects a 

party’s objections.” Id. 

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The ALJ’s Decision and the R&R

 An ALJ considering a disability claim is required to follow a five-step 

sequential process to evaluate the claim. 20 C.F.R. § 404.1520(a)(4). The fivestep process is as follows: 

1. At the first step, the ALJ considers whether the claimant is 

currently engaged in substantial gainful activity. 20 C.F.R. 

§ 404.1520(a)(4)(i). 

2. At the second step, the ALJ considers whether the claimant has 

a severe medically determinable physical or mental impairment 

that meets the duration requirement of the regulations and 

which significantly limits the claimant’s ability to do basic 

work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c). 

3. At the third step, the ALJ again considers the medical severity 

of the claimant’s impairment to determine whether the 

impairment meets or equals an impairment listed in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. 20 C.F.R. 

§ 404.1520(a)(4)(iii). If the claimant’s impairment meets any 

Listing, he or she is determined to be disabled regardless of 

other factors. Id. 

4. At the fourth step, the ALJ assesses the claimant’s residual 

functional capacity (“RFC”) and past relevant work to 

determine whether the claimant can perform his or her past 

relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). 

5. At the fifth step, the ALJ considers the claimant’s RFC, age, 

education, and past work experience to see if he can do other 

work. 20 C.F.R. § 404.1420(a)(4)(v). If there is no such work 

that the claimant can perform, the ALJ must find that he or she 

is disabled. Id. 

If the ALJ determines that the claimant is disabled or not disabled at a step, the 

ALJ makes his or her decision and does not proceed further. 20 C.F.R. 

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§ 404.1520(a)(4). However, if the ALJ does not find that the claimant is disabled 

or not disabled at a step, the ALJ must proceed to the next step. Id. The claimant 

bears the burden of proof through the first four steps. Johnson v. Comm’r of Soc. 

Sec., 652 F.3d 646, 651 (6th Cir. 2011) (citing Wilson v. Comm’r of Soc. Sec., 378 

F.3d 541, 548 (6th Cir. 2004)). If the claimant meets his burden, the burden of 

proof shifts to the Commissioner at the fifth step. Id. 

 At the first step, the ALJ concluded that Plaintiff had not engaged in 

substantial gainful activity since April 23, 2012. (ECF No. 7-2 at Pg ID 46.) The 

ALJ found at step two that Plaintiff has the following severe impairments: (1) 

multilevel degenerative disc disease of the thoracic and lumbar spine; (2) lumbar 

radiculopathy; and (3) history of alcohol abuse. (Id.) The ALJ next analyzed 

whether Plaintiff’s impairments met any of the listed impairments and determined 

that they did not. (Id. at Pg ID 49.) 

At step four, the ALJ determined that Plaintiff had the residual functional 

capacity (“RFC”) to perform light work with the following limitations: 

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. 

(Id. at Pg ID 44.) In reaching this conclusion, the ALJ rejected Dr. Nabity’s 

opinion regarding additional limitations on Plaintiff’s functioning due to his lower 

back pain, stating that the ALJ was “afford[ing] no persuasive weight to Dr. 

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Nabity’s statements.” (Id. at Pg ID 49-55.) The ALJ also rejected Plaintiff’s 

claimed limitations as not supported by the record. (Id. at 54-55.) 

 The ALJ next concluded that Plaintiff is capable of performing his past 

relevant work as a production manager, as generally performed throughout the 

national economy. (Id. at Pg ID 55-56.) Thus, the ALJ concluded that Plaintiff is 

not disabled. (Id. at Pg ID 57.) 

In the R&R, Magistrate Judge Whalen concludes that the ALJ erroneously 

rejected Dr. Nabity’s opinions. Magistrate Judge Whalen finds that the ALJ’s 

account of the medical evidence reflects a “myopic,” “strained”, and possibly 

“distorted” reading of the record. (ECF No. 12 at Pg ID 647-48.) The magistrate 

judge also concludes that some of the ALJ’s findings are erroneous. (Id. at Pg ID 

647) With respect to Dr. Nabity’s opinion in August 27, 2014-- obtained when the 

Appeals Council remanded the matter for further evaluation of the doctor’s 

opinion-- Magistrate Judge Whalen concludes that the ALJ did not provide “good 

reasons” for discounting the opinion. (Id. at Pg ID 649.) Lastly, finding that the 

record does not support a finding that Plaintiff, who is of advanced age under the 

Social Security regulations, could perform more than sedentary work, Magistrate 

Judge Whalen recommends that the Court remand the matter to the Commissioner 

for an award of benefits. (Id. at Pg ID 652-53.) 

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The Commissioner raises four objections to the R&R, three relating to 

Magistrate Judge Whalen’s assessment of the medical evidence (including Dr. 

Nabity’s opinions) and one relating to the recommendation to remand for an award 

of benefits. 

Analysis

 This Court agrees with Magistrate Judge Whalen, and therefore finds no 

error, with respect to his evaluation of the ALJ’s assessment of the medical 

evidence. X-ray and EMG results supported a finding that Plaintiff suffered from 

degenerative spondylosis and chronic lumbar radiculopathy. The latter supports 

Dr. Nabity’s finding of spinal stenosis or nerve root compression. These 

conditions are consistent with Plaintiff’s repeated complaints of low back pain and 

the limitations contained in Dr. Nabity’s opinion. Like Magistrate Judge Whalen, 

this Court believes the ALJ cherry-picked from the medical records to find that 

Plaintiff reported no back pain at some office visits. Notably, even when Dr. 

Nabity’s records report in a general “Review of Symptoms” section a denial of 

multiple ailments, the same records reflect Plaintiff’s complaints of bilateral leg 

pain and low back pain. If the information in the Review of Symptoms section 

were accurate, there would be no reason for Dr. Nabity’s administration of epidural 

steroid injections at those appointments. 

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 In short, the Court agrees with Magistrate Judge Whalen that substantial 

evidence does not support the ALJ’s assessment of Plaintiff’s physical limitations. 

The Court disagrees with Magistrate Judge Whalen, however, with respect to 

whether this warrants a remand for further consideration or an award of benefits. 

 The Sixth Circuit holds that “when the Secretary misapplies the regulations 

or when there is not substantial evidence to support one of the ALJ’s factual 

findings and [the] decision therefore must be reversed, the appropriate remedy is 

not to award benefits. Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 

175-76 (6th Cir. 1994). The Sixth Circuit further advised in Faucher that 

reviewing courts should award benefits “only if all essential factual issues have 

been resolved and the record adequately establishes [the] plaintiff’s entitlement to 

benefits.” Id. at 176. This Court does not believe that all essential factual issues 

have been resolved. 

Conclusion

For these reasons, the Court accepts in part and rejects in part the 

Commissioner’s objections to the R&R. The Court therefore adopts in part and 

rejects in part Magistrate Judge Whalen’s recommendations. 

 Accordingly, 

IT IS ORDERED that Plaintiff’s motion for summary judgment (ECF No. 

9) is GRANTED; 

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IT IS FURTHER ORDERED, that the Commissioner’s motion for 

summary judgment (ECF No. 10) is DENIED; 

IT IS FURTHER ORDERED, that the Commissioner’s decision denying 

Plaintiff’s social security benefits is REVERSED and this matter is REMANDED

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

with this Opinion and Magistrate Judge Whalen’s June 14, 2016 R&R. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: September 28, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, September 28, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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