IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Michael J. Reiser, :

 Plaintiff, :

 v. : Case No. 2:11-cv-1010

Commissioner of Social : JUDGE GEORGE C. SMITH

 Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Michael J. Reiser, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for supplemental security income. That

application was filed with a protective filing date of December

31, 2007, and alleged that plaintiff became disabled on that

date. 

After initial administrative denials of his application,

plaintiff was given a hearing before an Administrative Law Judge

on May 11, 2010. In a decision dated July 29, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on September 29, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on January 26, 2012. Plaintiff filed his

statement of specific errors on April 19, 2012. The Commissioner

filed a response on June 20, 2012. Plaintiff filed a reply brief

on July 6, 2012, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 48 years old at the time of the

administrative hearing and who has a high school education,

testified as follows. His testimony appears at pages 39-82 of

the administrative record.

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 Plaintiff last worked at a White Castle restaurant as a

shift manager and team member. He worked the counter, the drivethrough area, and occasionally prepared food. He also had some

management responsibilities but could not hire or fire employees. 

Prior to that, he worked for the State of Ohio in the Bad Check

Unit of the Department of Taxation, which was strictly an office

job, and in a warehouse position with the Treasurer of State,

dealing with cigarette excise tax stamps. He lost his job with

White Castle because he failed a drug test for marijuana. 

Shortly after that, he had knee surgery, and has had problems

with his right leg ever since. He has been told he needs a knee

replacement but is too young for the procedure. He now walks

with a cane. 

Plaintiff testified that he also suffers from constant back

pain. That condition caused him to stop working for the

Department of Taxation because the distance he had to drive was

too far. He has been treated by a chiropractor for his back

problem. Additionally, he suffers from sleep apnea, although he

had seen improvement from using a BiPAP machine. In early 2008,

he sought mental health counseling due to some family issues, and

has seen a counselor and received medication since then.

On a typical day, plaintiff takes care of his dogs and lies

on the couch to watch television. He does prepare some of his

own meals, attends church once a week, does laundry, and

occasionally goes grocery shopping. 

In response to additional questions from his attorney,

plaintiff testified that he has difficulty stooping or bending

due to his knee problem and cannot climb steps. He ices his knee

every day to deal with pain and swelling. He also suffers from

intermittent neck pain and migraine headaches, but they respond

well to medication. Additionally, he has developed issues

dealing with people. Finally, he is unable to sit more than an

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hour at time due to back pain, and his standing and walking are

also severely limited. 

III. The Medical Records

The medical records in this case are found beginning on page

299 of the administrative record. The pertinent records can be

summarized as follows. This summary will focus mainly on the

records highlighted in plaintiff’s statement of errors, including

those relating to his back condition, the Bureau of Vocational

Rehabilitation evaluation, and records which, according to

plaintiff, justify a sentence six remand.

On March 28, 2006, an MRI taken of plaintiff’s spine showed

lumbar spondylosis with mild dessication and loss of height

diffusely of the lumbar disks. Mild facet hypertrophy was seen

at L3-4 and a broad-based disk protrusion, as well as other

abnormalities, existed at the L4 level. (Tr. 309). He did

continue to work after that date, however. An electrodiagnostic

exam done shortly thereafter showed only minimal findings of a

bilateral radiculopathy. (Tr. 400). Dr. Blood, who saw

plaintiff four days after that study, reported positive straight

leg raising bilaterally with pain radiating down the legs, more

pronounced on the left than on the right. Plaintiff also had

decreased extension and bending and demonstrated pain in the L1-2

region. Dr. Blood recommended epidural steroid injections. (Tr.

401-02). These produced dramatic improvement. (Tr. 407). 

Plaintiff saw Dr. Gerwitz in April, 2007, and Dr. Gerwitz

read an MRI from December, 2006. It showed no significant

changes from the 2006 study, and plaintiff was described as

“clinically ... doing great.” He was continued on conservative

treatment, and he was working at that time. (Tr. 409-10). In

January of 2008 he reported increased back pain, but straight leg

raising was negative and his back was not tender to palpation. 

(Tr. 504-05). 

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In February of 2008, Dr. Thompson performed a consultative

examination and formed an impression of recent arthroscopic

surgery on the right knee and lumbar degenerative disc disease. 

He limited plaintiff to 30 minutes standing at a time, with no

squatting, kneeling, climbing, or repetitive bending or lifting,

and lifting ten pounds occasionally. He had no problems sitting. 

(Tr. 736-40). Dr. Gahman, also a state agency reviewer,

evaluated plaintiff’s physical capabilities. He thought that

plaintiff could work at the light exertional level but could not

climb ladders, ropes or scaffolds and could stoop, kneel, crouch,

and crawl only occasionally. He would also need to avoid

concentrated exposure to fumes, odors, dusts, gases and poor

ventilation. (Tr. 484-91).

Mr. Sours, a consulting psychologist, performed a

consultative clinical examination on February 27, 2008. 

Plaintiff reported a family history of alcoholism, including

himself, but said he had been sober for a number of years. He

stated he was depressed and anxious and had attempted suicide in

the past. He also described constant low back pain. Plaintiff

said he had a number of symptoms including memory problems and

anger issues. His activities of daily living were limited. Mr.

Sours diagnosed major depression, generalized anxiety disorder,

and oppositional defiant disorder, and rated plaintiff’s GAF at

55. He thought plaintiff could follow instructions with only a

mild impairment, and could perform simple repetitive tasks but

would have difficulty with complex ones. Also, plaintiff would

have moderate difficulty dealing with others and dealing with

work stress. (Tr. 416-19). Dr. Chambly, a state agency

reviewer, concluded that plaintiff had a personality disorder and

that he had some moderate restrictions in work-related areas,

particularly in his ability to deal with work stress and to

relate to others. (Tr. 423-39). A later psychological

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evaluation done by Dr. Howard produced a GAF rating of 70;

testing showed that plaintiff underperformed and exhibited either

low motivation or inconsistent performance. He was seen as

having a “high potential for manipulation” and there was a

question about his motivation and perseverance. (Tr. 507-20).

The BVR did a vocational assessment over a two-day period in

March, 2008. Plaintiff described his limitations as anger

management issues, depression, back problems, neck pain, and

migraines. His abilities in areas such as interpersonal conduct,

cooperation, perseverance, emotional balance and mood, and

frustration tolerance were rated “unsatisfactory for work.” The

vocational staff stated that based on plaintiff’s own selfreported issues with anger management and depression, he was not

job ready at that time. He was encouraged to obtain mental

health counseling. (Tr. 741-48).

The records cited by plaintiff in support of his request for

a sentence six remand consist, first, of progress notes from Six

County, Inc. indicating that plaintiff had a GAF of 49 and was

upset about having been diagnosed with emphysema; that his

shortness of breath was getting worse and that it was probably

due to some combination of COPD and asthma; that pulmonary

function testing showed mild airway obstruction; and that a

lumbar MRI from January 14, 2011 showed a slightly more

pronounced disk bulge at L4 than was seen in 2008 with apparent

compression of the right nerve root at L4-5. (Tr. 967-1022). 

 IV. The Vocational Testimony

A vocational expert, Ms. Kaufman, also testified at the

administrative hearing. Her testimony begins at page 82 of the

record. She characterized plaintiff’s past work as a shift

manager as semiskilled work and light. The accounts clerk job

was sedentary and skilled, and the shipping clerk position was

medium and skilled. If plaintiff were limited to light work with

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some additional restrictions, he could still perform that latter

job as defined in the Dictionary of Occupational Titles.

Ms. Kaufman was asked to assume that plaintiff was limited

to lifting ten pounds occasionally, could sit for an unlimited

amount of time, and could only stand or walk for fifteen minutes

at a time and for no more than two hours in a workday. He also

would be limited to occasional use of stairs, no use of ladders,

occasional stooping and crouching, and no bending, kneeling or

crawling. Additionally, she was asked to assume that he had some

environmental limitations and would need to use a cane to get to

and from his work station. Finally, he could do only tasks that

were not fast-paced or which had strict time limits, and he would

work best alone. With those restrictions, plaintiff could not

perform any of his past work. He could, however, do unskilled

sedentary jobs such as table worker or sedentary level office

helper. If plaintiff could not have any interaction at all with

others, there would not really be any sedentary jobs he could

perform.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 10

through 22 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

had not engaged in substantial gainful activity from his alleged

onset date of December 31, 2007, through the date of the

decision. As far as plaintiff’s impairments are concerned, the

ALJ found that plaintiff had severe impairments including

degenerative joint disease of the right knee, lumbar spondylosis,

chronic bronchitis, sleep apnea, and a personality disorder. The

ALJ also found that these impairments did not, at any time, meet

or equal the requirements of any section of the Listing of

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

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Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to lift or carry five pounds frequently and ten pounds

occasionally, stand for fifteen minutes at a time for a total of

two hours in a workday, and climb stairs, stoop and crouch

occasionally. He could not climb ladders, kneel or crawl. He

also could not be exposed to smoke, fumes and gases, and needed

to use a cane to walk to and from his work station. From a

psychological standpoint, plaintiff could interact occasionally

with coworkers or supervisors, could have only rare and

intermittent contact with the general public, and could do only

unskilled tasks that were not fast-paced or strict time-limited. 

Adopting the vocational expert’s testimony, the ALJ found that

plaintiff could not do any of his past work but could perform

unskilled sedentary jobs such as table worker, packer or office

helper. Because the testimony showed that these jobs exist in

significant numbers in the state and national economies, the ALJ

concluded that plaintiff was not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises a

number of issues. First, he contends that the ALJ did not give

enough weight to the Bureau of Vocational Rehabilitation’s

conclusion that, at least as of the time that BVR conducted a job

evaluation, plaintiff was not “job ready” due to anger management

issues. Second, plaintiff argues that the ALJ failed to consider

whether his back disorder satisfied Section 1.04 of the Listing

of Impairments. Third, he asserts that the ALJ did not properly

evaluate his credibility. He also asks for alternative relief in

the form of a sentence six remand, citing to a number of medical

records which post-date the administrative hearing. The Court

generally reviews the administrative decision of a Social

Security ALJ under this legal standard:

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Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

A. Was the ALJ’s Decision Supported by Substantial Evidence?

In arguing that the ALJ’s decision was not supported by

substantial evidence, plaintiff focuses primarily upon the BVR

evaluation which showed that he was not work-ready when it was

performed. Before dealing with this issue, however, the Court

will discuss the question of whether the ALJ erred in failing to

discuss specifically the requirements of Section 1.04 of the

Listing of Impairments and whether plaintiff’s credibility was

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properly judged.

Section 1.04 presumes disability when a claimant suffers

from certain disorders of the spine, including “herniated nucleus

pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis,

degenerative disc disease, facet arthritis, [or] vertebral

fracture” which are accompanied by 

A. Evidence of nerve root compression characterized by

neuro-anatomic distribution of pain, limitation of

motion of the spine, motor loss (atrophy with

associated muscle weakness or muscle weakness)

accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg

raising test (sitting and supine)....

According to plaintiff’s statement of errors, the diagnostic

studies and the reports from Drs. Gerwitz and Blood showed that

he had various spinal conditions, including bilateral

spondylolisthesis, facet hypertrophy, a bulging disk, spinal

stenosis, and foraminal compromise, and also contained evidence

both of positive straight-leg raising tests and radiculopathy. 

He argues that he has shown the existence of a spinal disorder,

nerve root compression, and motor and sensory loss, and that it

was error for the ALJ not to have considered specifically the

question of whether this section of the Listing of Impairments

was satisfied.

Most of the ALJ’s discussion of the Listing of Impairments

focuses on mental impairments, noting only in passing that “there

is little to no medical evidence in the record to support a

finding that the claimant’s impairments ... meet or equal the

requirements set forth in the Listing of Impairments,

particularly Listings 1.02 and any 3.00 Listings.” (Tr. 14). 

Section 1.02 deals with major dysfunction of a joint, and Section

3.00 is concerned with the respiratory system. Thus, it is

accurate that the ALJ did not specifically discuss Section 1.04.

In his responsive memorandum, the Commissioner argues that

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the ALJ “clearly” considered this Listing (see Doc. 17, at 4).

The ALJ’s decision itself, however, which made no specific

mention of Section 1.04 and no general reference to Section 1.00

dealing with the musculoskeletal system generally, belies this

assertion. And it is true that, under applicable regulations, an

ALJ is required, at step three of the sequential evaluation

process, to consider whether a claimant’s impairment “meets or

equals one of our listings ....” 20 C.F.R. §404.1520(a)(4)(iii). 

The Commissioner’s argument therefore seems to be that it was

harmless error for the ALJ not to have discussed Section 1.04

because, first, plaintiff had the burden of demonstrating

disability at this stage of the process, and because it does not

appear that any physician observed either sensory or motor loss,

which is one of the requirements of Section 1.04.

The Court concludes, first, that the record is not quite as

clear on this issue as the Commissioner asserts. It is true that

Dr. Thompson did not find such evidence when he examined

plaintiff in 2008. Dr. Gerwitz, another of the physicians whose

report plaintiff relies on, said in his April 3, 2006 letter that

“I found his motor exam to be 5/5 throughout” and that plaintiff

“did not have any objective sensory deficit.” (Tr. 398). On the

other hand, atrophy of the right thigh was noted as early as 2006

(Tr. 304-05), and in Dr. Blood’s April 18, 2006 report, he noted

both absent medial hamstring reflexes and weakness with toe

walking on the left side. (Tr. 401-02). Quadriceps atrophy and

a limp were noted on February 22, 2008. (Tr. 413). Plaintiff

also reported numbness in his lower extremities. (Tr. 678). 

This evidence could support a finding of either motor loss or

reflex loss, which are elements of Section 1.04 (and the elements

which the Commissioner argues are missing from the record).

The Commissioner’s position is difficult to reconcile with

the Court of Appeals’ decision in Reynolds v. Comm’r of Social

Security, 424 Fed. Appx. 411 (6th Cir. April 1, 2011). That

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case, like this one, involved an ALJ’s failure to consider

whether the claimant’s impairment met or equaled Section 1.04. 

The ALJ in that case found, at step two of the process, that the

claimant suffered from “back pain” (a much less specific finding

than the one made in this case, where the ALJ found that

plaintiff had lumbar spondylosis). As the ALJ did here, the

Reynolds ALJ made a conclusory determination that the claimant

did not satisfy Section 1.00, and then devoted the balance of his

discussion to Section 12.04, dealing with affective disorders. 

As the court noted, “[n]o analysis whatsoever was done as to

whether Reynolds' physical impairments (all summed up in his

finding of a severe ‘back pain’ impairment) met or equaled a

Listing under section 1.00, despite his introduction concluding

that they did not.” Reynolds, at *3. The absence of any

meaningful comparison of the claimant’s symptoms to any

impairment described in Section 1.00 led the court to conclude

that the ALJ “skipped an entire step of the necessary analysis.

He was required to assess whether Reynolds met or equaled a

Listed Impairment (such as the one above), but did not do so.” 

Id. The Court of Appeals also found that the error was not

harmless. In addition to the fact that a favorable finding at

step three would have resulted in an award of benefits, the court

noted that “in this case, correction of such an error is not

merely a formalistic matter of procedure, for it is possible that

the evidence Reynolds put forth could meet this listing.” Id. at

*4. Finally, the court observed that the ALJ’s failure to

evaluate this potentially favorable evidence in light of the

requirements of Section 1.04 did not “facilitate meaningful

judicial review” and that it was therefore “impossible to say

that the ALJ’s decision at Step Three was supported by

substantial evidence.” Id.

Reynolds is, of course, an unpublished decision and, as

such, is not binding on this Court. However, other Judges of

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this Court have found its reasoning persuasive. So, for example,

in Risner v. Comm’r of Social Security, 2012 WL 893882, *5 (S.D.

Ohio March 15, 2012), Judge Spiegel, following Reynolds, remanded

a case to the Commissioner where the ALJ provided no reasoning in

support of his conclusion that no section of the Listing was met

or equaled, holding that “where ... the ALJ fails to complete a

required step in the five-step analysis, the proper course is to

remand the case for him to complete his task. Requiring a

reasoned and explained conclusion is not merely a formalistic

requirement [but] a necessary component for this Court to

ascertain whether the ALJ's decision was supported by substantial

evidence.” See also Scott v. Astrue, 2012 WL 1106659, 176

Soc.Sec.Rep.Serv. 552 (S.D. Ohio Apr. 2, 2012), adopted and

affirmed 2012 WL 1854729 (S.D. Ohio May 21, 2012)(“the

administrative law judge erred by skipping a step [step three] of

the analysis required by the Commissioner's regulations. On

remand, the administrative law judge must actually evaluate the

evidence, compare it to the Listings and provide a rationale for

his decision to allow for meaningful judicial review”). 

This is not to say that the Court is adopting a per se rule

that every ALJ must discuss in detail any section of the Listing

which might conceivably be implicated by the claimant’s severe

impairments. Although Risner and Scott seem to point in that

direction, Judge Deavers has recognized that “a court must read

the ALJ's step-three analysis in the context of the entire

administrative decision, and may use other portions of a decision

to justify the ALJ's step-three analysis.” Snoke v. Astrue, 2012

WL 568986. *6 (S.D. Ohio Feb. 22, 2012), adopted and affirmed

2012 WL 1058982 (S.D. Ohio Mar. 28, 2012). Further, in Reynolds,

the court found that the claimant had presented evidence from

which it was possible to conclude that the requirements of

Section 1.04 had been satisfied, and other courts have suggested

that this may be a threshold showing in order to obtain a remand

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for failing to comply with the Step Three requirement. See,

e.g., McClellan v. Astrue, 804 F.Supp. 2d 678 (E.D. Tenn.

2011)(it is error for the ALJ not to consider a specific listing

where there is “a ‘substantial question’ as to whether the

listing was met”). But even if that is the test, as noted above,

there is evidence in this record touching on every element of

Section 1.04, and the Court cannot find a sufficient discussion

of those factors elsewhere in this administrative decision. 

Whether to credit the evidence which speaks directly to the

requirements of Section 1.04, and how to evaluate it in light of

those requirements, is the ALJ’s task; the Court’s role in the

decisional process is simply to review such a determination under

the “substantial evidence” standard. That cannot be done here

because there is no determination to review. Consequently, this

assignment of error supports a sentence four remand.

The next issue is whether the ALJ properly assessed

plaintiff’s credibility or whether that issue, too, must be

addressed on remand. Plaintiff, citing to 20 C.F.R. §404.1529

and SSR 96-7p, argues that the ALJ improperly found a lack of

objective evidence to support plaintiff’s complaints of pain, and

that other factors cited by the ALJ, such as plaintiff’s

“inviting” a confrontation with someone in 2009 and his efforts

to conserve his medication (or his difficulty in obtaining it) do

not reflect adversely on his credibility. Plaintiff also faults

the ALJ for using his efforts to return to work as evidence that

his subjective complaints were not credible.

Plaintiff is correct that an ALJ is not permitted to reject

allegations of disabling symptoms, including pain, solely because

objective medical evidence is lacking. Rather, the ALJ must

consider other evidence, including the claimant's daily

activities, the duration, frequency, and intensity of the

symptoms, precipitating and aggravating factors, medication

(including side effects), treatment or therapy, and any other

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pertinent factors. 20 C.F.R. §404.1529(c)(3). Although the ALJ

is given wide latitude to make determinations about a claimant’s

credibility, the ALJ is still required to provide an explanation

of the reasons why a claimant is not considered to be entirely

credible, and the Court may overturn the ALJ’s credibility

determination if the reasons given do not have substantial

support in the record. See, e.g. Felisky v. Bowen, 35 F.3d 1027

(6th Cir. 1994).

Here, the Commissioner argues that the ALJ could reasonably

have relied on certain medical reports to determine that,

although plaintiff may have been symptomatic, his symptoms were

not of disabling severity. For example, during Dr. Thompson’s

examination, plaintiff was able to “walk independently on flat,

level surfaces.” (Tr. 737). Dr. Thompson also observed,

however, as the ALJ acknowledged, that plaintiff could not squat

or kneel, that his gait pattern was abnormal, that he limped on

his right leg, and that he could not stand or walk for more than

thirty minutes at a time without resting. The ALJ credited some

of these findings in his residual functional capacity finding,

but not others. Also, the ALJ cited to one statement made in Dr.

Priano’s report of February 9, 2009, to the effect that plaintiff

was “doing well after ACL reconstruction,” but that report (Tr.

752) also showed that there were still some limitations in range

of motion of the right knee and pain and tenderness as well,

probably due to arthritis. It is difficult to see how these

reports are inconsistent with plaintiff’s testimony that he

experiences daily pain and swelling in his knee. The Court also

agrees that plaintiff’s efforts to obtain vocational services

(which resulted in a finding that he was not job-ready) or his

stated intent to take on-line courses do not reflect that he was

being less than credible about his symptoms. In short, although

some of the factors cited by the ALJ may be proper, the

credibility discussion included both improper factors and a

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fairly selective reading of the record. This finding should be

revisited on remand.

This leaves only the issue of how the ALJ treated the “not

ready for work” evaluation from the BVR. Plaintiff’s primary

contention is that the ALJ failed to consider the report in its

entirety, focusing only on the conclusion and not on the portions

of the report which indicated how plaintiff’s emotional issues

impacted his ability to perform various work-type functions. The

Commissioner counters that the BVR counselors are considered

“non-medical sources” whose opinions cannot be given controlling

weight, and that their views about plaintiff’s emotional state -

views that they had no specific expertise to express - conflicted

with the opinions of qualified mental health specialists who

reviewed the record. The Commissioner argues that the ALJ

reasonably relied upon these latter opinions as more reflective

of the true extent to which plaintiff was limited due to

psychological issues.

The ALJ did, of course, have an obligation to consider the

BVR report regardless of the fact that it was generated by nonmedical sources, and the Commissioner does not argue otherwise. 

Having reviewed the ALJ’s discussion of the report, the Court is

unable to determine the extent to which the ALJ actually

considered the report. While the ALJ has no obligation to

discuss each piece of evidence, it is certainly helpful to a

reviewing court to have some indication in the administrative

decision that the entirety of the record has been taken into

consideration. Here, the brevity of discussion (Tr. 16), coupled

with the fact that it is unclear what criteria “beyond the

claimant’s functional capacity” influenced the report, make it

very difficult for the Court to know how the ALJ took into

account (if at all) the various observations made by the BVR

counselors over the course of the two-day evaluation. While this

issue would probably not provide independent support for a

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sentence four remand, since a remand will occur, the ALJ should

provide a more considered opinion with respect to the

significance of both the conclusions of the BVR counselors and

the underlying evidence - i.e., plaintiff’s performance on the

various tasks assigned to him during the course of the

evaluation. It may be that, as the Commissioner suggests, that

there are valid reasons for discounting plaintiff’s failure to

complete these tasks adequately, but the reasons advanced in the

Commissioner’s memorandum are not to be found in the

administrative decision, and there is no way for the Court to

know if the ALJ’s decision actually relied on that reasoning.

B. Should the Court Order a Sentence Six Remand?

Because the Court has ordered a remand under 42 U.S.C.

§405(g), sentence four, the Commissioner should review the entire

record, including evidence which post-dates the prior

administrative decision. This disposition moots the request for

a sentence six remand. See Barbera v. Comm’r of Social Security,

2012 WL 2458284 (E.D. Mich. June 5, 2012), adopted and affirmed

2012 WL 2389977 (E.D. Mich. June 25, 2012); Brock v. Astrue, 2011

WL 2559526 (S.D. Ohio June 28, 2011). 

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner of Social Security

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

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

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determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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