UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

BRUCE A. MELIUS,

Plaintiff, Civil Action No.: 15-10820

 Honorable Denise Page Hood

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 9, 10]

Plaintiff Bruce A. Melius appeals a final decision of Defendant 

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

for supplemental security income benefits (“SSI”) under the Social Security 

Act (the “Act”). Both parties have filed summary judgment motions, 

referred to this Court for a Report and Recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B). The Court finds that the Administrative Law Judge 

(“ALJ”) failed to give good reasons for the weight given to 

the treating physician opinion of record, and for this reason, the 

Court RECOMMENDS that:

• the Commissioner’s motion [R. 10] be DENIED; 

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• Melius’s motion [R. 9] be GRANTED IN PART to the extent it seeks 

remand, but DENIED IN PART to the extent it seeks reversal and a 

direct award of benefits; and

• the Commissioner’s decision be REMANDED for further 

consideration, pursuant to sentence four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. Melius’s Background and Disability Application

Melius was 47 years old on his alleged disability onset date of 

January 11, 2012. [R. 7-3, Tr. 82]. He had previously been a self-employed 

drywall hanger from 1992 to 2010 and also worked in maintenance at a 

motel for four months in 2010. [R. 7-6, Tr. 236]. He alleged that he was 

disabled from back injury, insomnia, high blood pressure, and high 

cholesterol. [Id., Tr. 235]. Additionally, record evidence and testimony 

showed impairments of the shoulder, hip, and knee. [R. 7-7, Tr. 349, 458, 

698, 700, 702]. 

Melius filed an application for SSI benefits in February 2012, which 

was denied. [R. 7-5, Tr. 205-208; R. 7-4, Tr. 93-96)]. He then filed a 

request for hearing which was untimely, but for good cause, and an 

administrative hearing was held in September 2013 at which he and a 

vocational expert (“VE”) testified. [R. 7-2, Tr. 13]. In an October 25, 2013

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written decision, the ALJ found Melius to be not disabled. [Id., Tr. 13-20]. 

The Appeals Council denied review, making the ALJ's decision the final 

decision of the Commissioner. [Id., Tr. 1–5]. Melius timely filed for judicial 

review. [R. 1].

B. The ALJ’s Application of the Disability Framework Analysis

A “disability” is 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 to last for a continuous period of not less than 12 months.” 

42 U.S.C. § 1382c(a)(3)(A).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

416.920(a)(4). Second, if the claimant has not had a severe impairment or 

a combination of such impairments1 for a continuous period of at least 12 

months, no disability will be found. Id. Third, if the claimant’s severe 

impairments meet or equal the criteria of an impairment set forth in the 

Commissioner’s Listing of Impairments, the claimant will be found disabled. 

Id. If the fourth step is reached, the Commissioner considers its 

 1 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” § 920(c).

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assessment of the claimant’s residual functional capacity (“RFC”), and will 

find the claimant not disabled if he or she can still do past relevant work. 

Id. At the final step, the Commissioner reviews the claimant’s RFC, age, 

education and work experiences, and determines whether the claimant 

could adjust to other work. Id. The claimant bears the burden of proof 

throughout the first four steps, but the burden shifts to the Commissioner if 

the fifth step is reached. Preslar v. Sec’y of Health & Human Servs., 14 

F.3d 1107, 1110 (6th Cir. 1994). 2

Applying this framework, the ALJ concluded that Melius was not 

disabled. At the first step, he found that Melius had not engaged in 

substantial gainful activity since his application date. [R. 7-2, Tr. 15]. At the 

second step, he found that Melius had the severe impairments of 

degenerative disc disease, back pain, leg pain, and shoulder pain. [Id., Tr. 

15]. Next, the ALJ concluded that none of Melius’s impairments, either 

alone or in combination, met or medically equaled the severity of the listed 

impairments, paying close attention to listing 1.02 (major dysfunction of a 

joint(s) due to any cause) and listing 1.04 (disorders of the spine). [Id., Tr. 

15-16]. 

 2 Opinions analyzing applications for Disability Insurance Benefits are 

applicable because the same standards apply to SSI claims. See 20 

C.F.R. §§ 404.1520 and 416.920.

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At the fourth step, the ALJ found that Melius had the residual 

functional capacity (“RFC”) “to perform unskilled light work as defined in 20 

CFR 416.967(b) except that he can never climb ladders/ropes/scaffolds, 

but can occasionally climb ramps/stairs, stoop, kneel, crouch, or crawl. He 

can frequently reach, including overhead, with his upper extremities.” [Id., 

Tr. 16]. Due to these limitations, the ALJ found that Melius could not 

perform his past relevant work due to its physical demands. [Id., Tr. 18].

After considering Melius’s age, education, work experience, RFC, and the 

testimony of the VE, the ALJ found at step five that Melius could perform a 

significant number of other jobs in the national economy, including car 

wash attendant (46,418 jobs in the United States), cashier II (817,407 

jobs), and sales attendant (200,213 jobs). [R. 7-2, 19-20]. Thus, the ALJ 

found that Melius was not disabled.

II. ANALYSIS

A.

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“more than a scintilla of evidence but less than a preponderance; it is such 

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relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

The significant deference accorded the Commissioner’s decision is 

conditioned on the ALJ’s adherence to governing standards. “Chief among 

these is the rule that the ALJ must consider all evidence in the record when 

making a determination, including all objective medical evidence, medical 

signs, and laboratory findings.” Gentry, 741 F.3d at 723. See also Rogers, 

486 F.3d at 249. In other words, substantial evidence cannot be based 

upon fragments of the evidence, and “must take into account whatever in 

the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984) (internal quotation marks and citation omitted). 

The Commissioner must also adhere to its own procedures, but 

failure to do so constitutes only harmless error unless the claimant has 

been prejudiced or deprived of substantial rights. Rabbers v. Comm’r of 

Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009). On the other hand, 

substantial errors like ignoring evidence in the record or failing to follow the 

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treating physician rule are not harmless. Id.; Cole v. Astrue, 661 F.3d 931, 

940 (6th Cir. 2011); Gentry, 741 F.3d at 729.

Melius argues that the ALJ erred by failing to give controlling weight 

to an opinion from his treating physician, Martin Jennings, D.O., and that 

the ALJ failed to properly assess his credibility. The Court finds merit with 

the first argument, which will necessarily require a reevaluation of his

credibility on remand.

B.

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

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

of a claimant’s condition when those opinions are well-supported by 

medically acceptable clinical and diagnostic evidence, and not inconsistent 

with other substantial evidence. Gentry, 741 F.3d at 723, 727-29; Rogers, 

486 F.3d at 242-43. 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 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 

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374188, at *5 (July 2, 1996)). Courts will not hesitate to remand when the 

ALJ failed to articulate “good reasons” for not fully crediting the treating 

physician's opinion. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545 (6th 

Cir.2004).

Here, the ALJ gave “little weight” to the opinions of Dr. Jennings, the 

treating physician and the only acceptable medical source under 20 CFR 

416.902 that is cited in the opinion. [R. 7-2, Tr. 17]. Dr. Jennings examined 

Melius 20 times from June 2010 to early 2013. [R. 7-7, Tr. 373-95; 610-

94]. In a September 2013 medical needs form, Dr. Jennings opined that 

Melius’s disc, spine and shoulder disorders limited him to frequent carrying 

of less than 10 pounds, occasional lifting or carrying of 10 pounds, and no 

lifting or carrying of more than 25 pounds. [Id., Tr. 702-03]. He defined 

frequent as two-thirds of an 8 hour day, and occasional as one-third of an 8 

hour day. [Id]. Dr. Jennings further limited Melius to standing or walking 

less than 2 hours in an 8 hour day, but imposed no limitations on his sitting. 

[Id.]. 

The ALJ found Dr. Jennings’s opinion that Melius could only 

occasionally lift or carry ten pounds to be contradicted by Melius’s

testimony that he walks about one half of a mile daily while “often carrying 

two ten pound grocery bags.” [R. 7-2, Tr. 17, 39, 43-45]. The ALJ also 

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faulted Dr. Jennings for failing to “opine about how long the claimant could 

sit during an eight-hour workday,” finding it somehow contradictory to an 

opinion that Melius could only stand or walk for less than two hours in an 

eight-hour day. [Id.]. Finally, the ALJ found Dr. Jennings’ September 2013 

opinion to conflict with a July 2011 treatment record, in which Dr. Jennings

stated that Melius was only restricted to lifting less than thirty pounds, in 

addition to “no overhead reaching, no bending, and no heights.” [Id.; Tr. 7-

7, Tr. 381]. These are not good reasons for discounting Dr. Jennings’ 

opinion.

Melius testified that he daily walks a quarter-mile (not a half-mile) 

from the store to home carrying at most 10 pounds on each arm. [R. 7-2, 

Tr. 43-45]. At a slow pace of 20 minutes per mile, a quarter mile walk 

would take him about 5 minutes. So, Melius’s testimony establishes only 

that he carries up to 20 pounds for about 5 minutes out of the whole day. 

This does not contradict Dr. Jenning’s opinion that Melius can carry or lift 

less than 10 pounds for two-thirds of an 8 hour day (320 minutes), 

occasionally carry or lift 10 pounds for one-third of an 8 hour day (160 

minutes), and never carry more than 25 pounds. [R. 7-7, Tr. 702-03]. 

Likewise, the lack of a sitting limitation does not constitute a good 

reason for the ALJ to give Dr. Jennings’ opinion little weight. The medical 

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needs form Dr. Jennings’ filled out does not include an option for no sitting 

limitation; the boxes give the physician the options of choosing that that the 

patient is limited to sitting about 6 hours or less than 6 hours in an 8 hour 

days. [Id., Tr. 702]. If the patient has no sitting limitations, the obvious 

choice is for the physician to check no box. The ALJ’s conclusion that the 

lack of a sitting limitation is contradictory to Dr. Jennings’ opinion that 

Melius is limited in other respects makes no sense and is not a good 

reason for assigning Dr. Jennings’ opinion little weight.

The ALJ’s reliance on Dr. Jennings’ treatment record from July 2011 

in deciding to give the September 2013 opinion little weight is also without 

merit. [R. 7-2, Tr. 17]. Melius suggests that the July 2011 treatment record 

is irrelevant because it precedes his alleged onset date of February 11, 

2012, but reports that predate an alleged onset date of disability are not 

inherently irrelevant. For example, in Kiser v. Colvin, 2013 WL 5488525 at 

*12 (E.D. Tenn. Oct. 2, 2013), medical evidence that predated the alleged 

onset date was relevant because there was no evidence of no new injuries 

or degenerative changes. The same is not true here; the medical evidence 

demonstrates that Melius showed decline after July 2011.

In April 2012, Dr. Jennings referred Melius to physical therapy 

because he was experiencing increased back pain and decreased 

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functional mobility of his low back, bilateral lower extremities, left upper 

extremity and upper back and neck. [R. 7-7, Tr. 612, 635]. Melius attended 

7 physical therapy sessions in May 2012, but his June 2012 appointment 

was cancelled because of a lack of insurance authorization. [Id., Tr. 635]. 

Further, while Dr. Jennings did not record that Melius was experiencing

muscle spasms or a decreased range of motion in his back in July 2011 or 

for the remainder of the year, [Id., Tr. 648-49, 653-56], those symptoms 

were noted in November 2012. [Id., Tr. 617-18]. Additionally, x-rays taken 

from December 2011 to August 2013 showed new or progressing

degenerative changes in Melius’ neck, hip and knees. [Id., Tr. 464, 698, 

700]. Given this evidence, the opinion from July 2011 does not constitute 

“‘well-supported contradicting evidence’ such that the treating physician’s 

evidence is ‘no longer entitled to controlling weight.’” Fedak v. Comm'r of 

Soc. Sec., 2014 WL 806435, at *12 (E.D. Mich. Feb. 28, 2014) (quoting 

Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008)).

For all of these reasons, the ALJ failed to give good reasons for 

giving little weight to Dr. Jennings’ 2013 opinion, and the Court should not 

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hesitate to remand. Wilson, 378 F.3d at 541. 3

III. CONCLUSION

For the reasons stated above, the Court RECOMMENDS that the 

Commissioner’s motion [R. 10] be DENIED, Melius’s motion [R. 9] be 

GRANTED IN PART to the extent it seeks remand, but DENIED IN 

PART to the extent it seeks reversal and a direct award of benefits, and the 

Commissioner’s decision be REMANDED for further consideration. 

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: February 9, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

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

 3 Of further note, the RFC crafted by the ALJ indicates that Melius can 

“frequently reach, including overhead, with his upper extremities,” which 

conflicts with Dr. Jennings’s less-restrictive 2011 report that the ALJ relies 

upon in giving the 2013 opinion little weight. [R. 7-2, Tr. 18; R. 7-7, Tr. 656]. 

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

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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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 February 9, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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