IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRACY L. EHRLICH, 

Plaintiff,

v. Civil Action 2:17-cv-184

Magistrate Judge Jolson

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Tracy L. Ehrlich, brings this action under 42 U.S.C. § 405(g) for review of a 

final decision of the Commissioner of Social Security (“Commissioner”) denying her application 

for disability insurance benefits (“DIB”), a period of disability, and Supplemental Security 

Income (“SSI”). For the reasons that follow, the Commissioner’s nondisability finding is

REVERSED and this case is REMANDED to the Commissioner and Administrative Law Judge 

(“ALJ”) under Sentence Four of § 405(g).

I. BACKGROUND

A. Procedural Background

Plaintiff applied for DIB, a period of disability, and SSI on October 16, 2013, alleging 

disability beginning October 1, 2011, due to numerous physical and mental impairments. (Doc. 

14-2, Tr. 27, PAGEID # 92). An Administrative Law Judge (the “ALJ”) held a hearing (Id., Tr. 

42–62, PAGEID # 107–27) after Plaintiff’s application was denied initially (Doc. 14-3, Tr. 65–

78, PAGEID #: 131–44) and upon reconsideration (Id., Tr. 95–110, PAGEID #: 161–76). On 
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January 29, 2016, the ALJ denied benefits in a written decision. (Doc. 14-2, Tr. 24–41, 

PAGEID # 89–106). That decision became final when the Appeals Council denied review on 

January 3, 2017. (Id., Tr. 1–6, PAGEID #: 66–71). 

Plaintiff filed this case on March 3, 2017 (Doc. 1), and the Commissioner filed the 

administrative record on June 5, 2017 (Doc. 14). Plaintiff filed a Statement of Specific Errors on

July 19, 2017 (Doc. 15), the Commissioner responded on September 1, 2017 (Doc. 16), and 

Plaintiff replied on September 18, 2017 (Doc. 17).

B. Relevant Medical Records

Plaintiff’s relevant medical records are summarized below.

C. Relevant Hearing Testimony

Plaintiff testified that she suffers from rheumatoid arthritis in her joints, hands, knees, 

hips, and feet. (Doc. 14-2, Tr. 48, 55, PAGEID #: 113, 120). She also testified that she had an 

EMG performed on her legs, back, and feet to investigate nerve damage. (Id., Tr. 48–49, 

PAGEID #: 113–14). She stated she is borderline diabetic, and that she “was heavy” before she 

“lost a lot of weight.” (Tr. 49, PAGEID #: 114). Plaintiff testified that she does not have much 

control over her hands, and she had surgery performed on both of her hands, as well as her 

elbow, within the last three years. (Id.). She stated that while the surgery helped her hands, it 

did not help her elbow. (Id., Tr. 50, PAGEID #: 115). She experiences “chronic pain daily.” 

(Id., Tr. 55, PAGEID #: 120).

Plaintiff can pick up and carry a soda bottle, but is unable to open one; she needs two 

hands to carry a gallon of milk. (Id., Tr. 50, PAGEID #: 115). Standing and walking is 

problematic, but she can walk a little over a block before she becomes short of breath. (Id., Tr. 

51, PAGEID #: 116). She experiences breathing problems, and uses a “puffer” once or twice a 
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week. (Id.). Plaintiff can stay seated for a half hour at most and spends most of her day in bed. 

(Id., Tr. 52, PAGEID #: 117). She can focus on one task for about twenty minutes before she 

needs to move around. (Id., Tr. 54, PAGEID #: 119). Plaintiff testified that her pain prevents 

her from finishing household chores. (Id., Tr. 55, PAGEID #: 120).

The Vocational Expert (the “VE”) testified, inter alia, that an individual of Plaintiff’s 

age, education, and work experience limited to only frequent handling, fingering, and feeling 

bilaterally; lifting and carrying ten pounds frequently; sitting 45 minutes at a time for six of eight 

hours; and standing and walking for 30 minutes at a time for three of eight hours would be 

limited to sedentary unskilled work. (Id., Tr. 57–58, PAGEID #: 122–23). 

D. The ALJ’s Decision

The ALJ found that Plaintiff met the insured status requirements of the Social Security 

Act through December 31, 2016. (Doc. 14-2, Tr. 27, PAGEID #: 92). The ALJ also found that 

Plaintiff engaged in substantial gainful activity in 2012, when Plaintiff reported $12,481 in 

earnings, but that there has been a continuous 12-month period during which Plaintiff did not 

engage in substantial gainful activity. (Id., Tr. 29, PAGEID #: 94). The ALJ determined that 

Plaintiff’s severe impairments consisted of degenerative disc disease of the lumbar spine, 

fibromyalgia, rheumatoid arthritis, and bilateral carpal tunnel syndrome, none of which alone or 

in combination met or medically equaled the severity of a listed impairment. (Id., Tr. 29–31, 

PAGEID #: 94–96). In terms of residual functional capacity (“RFC”), the ALJ found that 

plaintiff is able “to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) 

except: lift/carry 10 pounds occasionally and frequently; sit 45 minutes at a time for a total of 6 

hours in an 8 hour workday; stand/walk 30 minutes at a time for a total of 3 hours in an 8 hour 

workday; and frequent handling, fingering and feeling in the bilateral upper extremities.” (Id., 
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Tr. 31, PAGEID #: 96). 

Specific to Plaintiff’s back pain, the ALJ found:

Despite alleging debilitating back pain, an MRI of the lumbar spine on August 20, 

2014 showed generally mild findings. The MRI revealed a small disc bulge at 

L5-S1 with no spinal or foraminal stenosis. There was also no evidence of a 

nerve root impingement at S1. Dr. Campbell, a treating neurologist, described the 

claimant’s lumbar imaging as showing very mild pathology (Exhibits 22F, page 

60 & 27F, page 1). Similarly, an EMG study on January 11, 2016 revealed very 

mild, acute bilateral S1 radiculopathy, which was inconsistent with the claimant’s 

allegations of numbness and electrical sensations (Exhibit 27F, page 1). An EMG 

study of the upper extremities on February 17, 2014 showed mild bilateral median 

nerve delay with the right worse than the left in severity (Exhibit 21F, page 4).

(Id., Tr. 32, PAGEID #: 97). With regard to Plaintiff’s carpal tunnel syndrome, the ALJ noted 

that the RFC finding “more than accounts for claimant’s complaints by limiting [her] to lifting 

and carrying ten pounds and frequent handling, fingering, and feeling in the upper extremities.” 

(Tr. 33, PAGEID #: 98) In addition, Plaintiff underwent cubital tunnel decompression surgery 

on the right side in October 2013, which appeared to be successful, and an EMG study on 

February 17, 2014, showed only mild bilateral median nerve delay. (Id.). 

The ALJ stated generally that, although Plaintiff’s medically determinable impairments 

could reasonably be expected to cause the alleged symptoms, her statements concerning the 

intensity, persistence, and limiting effects of those symptoms were not entirely credible. (Id.). 

For example, the ALJ noted that Plaintiff’s activities of daily living—such as cleaning, washing 

dishes, laundry, and grocery shopping—are inconsistent with her allegations of debilitating pain. 

(Id.). 

The ALJ found that Plaintiff is unable to perform past relevant work and was 41 years old 

(a younger individual) on the onset date. (Id., Tr. 34, PAGEID #: 99). Transferability of job 

skills was not material to the disability determination. (Id.). Considering Plaintiff’s age, 

education, work experience, and RFC, the ALJ determined that “there are jobs that exist in 
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significant numbers in the national economy that the claimant can perform.” (Id.). Based on the 

foregoing, the ALJ found that Plaintiff was not disabled under the Social Security Act. (Id., Tr. 

35, PAGEID #: 100). 

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if 

supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as 

‘more than a scintilla of evidence but less than a preponderance; it is such 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) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th 

Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into 

account whatever in the record fairly detracts from [the] weight” of the Commissioner’s 

decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. 

Ohio Aug. 17, 2015).

III. DISCUSSION

Plaintiff raises three statements of error. First, Plaintiff argues that the ALJ erred by 

ignoring medical evidence of Plaintiff’s digestive and reproductive impairments and failing to 

find them severe. (Doc. 15, Tr. 10, PAGEID #: 973). Second, Plaintiff alleges that the ALJ’s 

RFC determination was not supported by substantial evidence because the ALJ failed to follow 

the “treating physician” rule. (Id., Tr. 13, PAGEID #: 976). Third, Plaintiff argues that the 

ALJ’s failure to consider Plaintiff’s obesity as required by SSR 02-1p is reversible error. (Id., 

Tr. 16, PAGEID #: 979). The Court finds merit in Plaintiff’s first and third statements of error. 

Based on the current record, it does not appear that the ALJ appropriately considered the 
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objective medical evidence regarding Plaintiff’s digestive and reproductive impairments or 

Plaintiff’s history of obesity. Because the ALJ’s failure to consider this objective medical 

evidence warrants remand, the Court need not address Plaintiff’s second statement of error. 

The ALJ is required to consider all evidence in the record when making a determination, 

including all objective medical evidence, medical signs, and laboratory findings. Gentry v. 

Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014). In Owens v. Colvin, the court found that 

the ALJ failed to consider all of the evidence in the record after the claimant produced 32 pages 

of medical records detailing various impairments, including back pain, muscle spasms, wrist 

pain, and depression, but the ALJ made no mention of this evidence anywhere in her decision. 

Owens v. Colvin, 14-CV-11128, 2015 WL 506723, at *2 (E.D. Mich. Feb. 6, 2015).

Consequently, the court remanded the case for the ALJ’s additional consideration of the 32 pages 

of evidence, despite the ALJ’s citation to other medical evidence. Id.

Here, the record is replete with medical evidence regarding Plaintiff’s digestive and 

reproductive impairments, as well as her history of obesity and gastric bypass surgery. However, 

as in Owens, the ALJ made no mention of this evidence in his opinion. For example, the record 

contains numerous references to Plaintiff’s history of digestive impairments from 2010–2015:

• On February 22, 2010, Plaintiff presented to the emergency room due to 

abdominal pain; she was treated with Lortab. (Doc. 14-7, Tr. 418, 421, 

424, PAGEID #: 489, 492, 495).

• On April 20, 2012, Plaintiff underwent an upper endoscopy that showed 

a small sliding-type hiatal hernia and status post sleeve gastrectomy with 

Roux-en-Y anastomosis. (Id., Tr. 309, PAGEID #: 380).

• On April 22, 2012, Plaintiff presented to the emergency room again with 

complaints of abdominal pain; she was diagnosed with nonspecific, 

recurrent abdominal pain. (Id., Tr. 522–23, PAGEID #: 593–94).
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• On June 19, 2012, Plaintiff underwent an ultrasound on the right upper 

quadrant of her abdomen, which revealed status post cholecystectomy, an 

incidental right renal cyst, and mild coarsening of hepatic echotexture. 

(Id., Tr. 366, PAGEID #: 437).

• On February 27, 2013, Dr. Gordon Kim diagnosed Plaintiff with irritable 

bowel syndrome. (Id., Tr. 552, PAGEID #: 623).

• On January 13, 2015, Plaintiff underwent an esophagram, which revealed 

moderate to severe gastroesophogal reflux with no reflux-related 

esophagitis identified. (Doc. 14-8, Tr. 742, PAGEID #: 814).

• On February 23, 2015, Plaintiff presented to the emergency room again 

due to abdominal and back pain. (Doc. 14-8, Tr. 735, PAGEID #: 807). 

Plaintiff was diagnosed with hematuria and abdominal pain. (Id., Tr. 

737, PAGEID #: 809).

• On August 3, 2015, Dr. Adam Tzagournis diagnosed Plaintiff with 

abdominal pain, bloating, and abdominal distention after meals, and 

status post gastric bypass. (Id., Tr. 850, PAGEID #: 922).

• On August 28, 2015, Plaintiff underwent a colonoscopy that revealed 

moderate internal hemorrhoids. (Id., Tr. 829, PAGEID #: 901).

• On November 9, 2015, Plaintiff underwent an additional colonoscopy 

that revealed a 6mm polyp in Plaintiff’s proximal ascending colon, as 

well as mild internal hemorrhoids. (Id., Tr. 824, PAGEID #: 896).

Additionally, Plaintiff’s various reproductive issues are mentioned throughout the record: 

• CT scans of Plaintiff’s abdomen and pelvis taken on April 6, 2012, 

showed a 3.3 cm low-attenuated lesion in the right adnexal area with a 

density of about 22 Hounsfield units. (Doc. 14-7, Tr. 499, PAGEID #: 

570).

• On June 12, 2012, plaintiff underwent a pelvic ultrasound that revealed 

an anteverted uterus with endometrium measuring up to 0.7 cm in 

thickness (considered abnormally thickened if patient is postmenopausal) 

and two complex cystic lesions within each ovary. (Id., Tr. 363–64, 

PAGEID #: 434–35).
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• On August 29, 2012, Plaintiff underwent an additional ultrasound that 

revealed a dominant follicular cyst in the right ovary measuring 1.6 cm. 

(Id., Tr. 367, PAGEID #: 438).

• On January 15, 2013, Dr. Caroline Hixson performed NovaSure ablation 

surgery on Plaintiff due to her excessive and frequent menstruation. (Id., 

Tr. 385, 393, 405, 415, PAGIED #: 456, 464, 476, 483).

Finally, the record is replete with references to Plaintiff’s obesity and history of gastric bypass 

surgery. (Doc. 14-7, Tr. 290, 295, 304, 307, 309, 311, 369–70, 376, 379, 387–88, 395–96, 398, 

408, 410, 506, 536, 573, 591–92, 602–603, 613, 618, 622, 627, 638, 673, 676, 683, 708–709, 

715, 721, PAGEID #: 361, 366, 375, 378, 380, 382, 440–41, 447, 450, 458–59, 466–67, 469, 

479, 481, 577, 607, 644, 662–63, 673–74, 684, 689, 693, 698, 709, 744, 747, 754, 779–80, 786, 

792; Doc. 14-8, Tr. 727, 735, 778, 782, 804–08, 809, 812–16, 827, 840, 850, 852, 860–63, 869–

72, 886, 887, PAGEID #: 799, 807, 850, 854, 876–80, 881, 884–88, 899, 912, 922, 924, 932–95, 

941–44, 950, 959). 

While it is true that “an ALJ can consider all the evidence without directly addressing in 

his written decision every piece of evidence submitted by a party” Kornecky v. Comm’r of Soc. 

Sec., 167 F. App’x 496, 508 (6th Cir. 2006), here the ALJ failed to acknowledge Plaintiff’s 

digestive and reproductive impairments, which she alleges to be severe. The ALJ’s failure to 

acknowledge these impairments despite the frequency with which they are mentioned in the 

record suggests that his review of the record was incomplete. See Owens, 2015 WL 506723, at 

*2; see also, e.g., Dyer v. Berryhill, 237 F. Supp. 3d 772, 776 (N.D. Ill. Feb. 21, 2017) 

(remanding where the ALJ’s decision “rest[ed] on a selective and incomplete review of the 

evidence”); Karadsheh v. Comm’r of Soc. Sec., No. 1:08-CV-988, 2010 WL 4259644, at *2 

(W.D. Mich. Sept. 17, 2010), report and recommendation adopted, No. 1:08-CV-988, 2010 WL 
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4259616 (W.D. Mich. Oct. 20, 2010) (finding the defendant’s position was not substantially 

justified where the ALJ, inter alia, “performed an incomplete review of the medical records”). 

Similarly, the ALJ’s failure to mention Plaintiff’s history of obesity also suggests that his review 

of the record was incomplete. See Titles II and XVI: Evaluation of Obesity, SSR 02-1P (Sept. 

12, 2002). Taking all of this together, “it is not clear that the ALJ fulfilled his obligation to 

consider all evidence in the record” under these circumstances. Payne v. Comm’r of Soc. Sec., 

13-CV-13561, 2014 WL 4897726, at *2 (E.D. Mich. Sept. 30, 2014) (quoting Gentry, 741 F.3d 

at 723). Accordingly, remand is warranted.

IV. CONCLUSION

For the reasons stated, the Commissioner’s nondisability finding is REVERSED and this 

case is REMANDED to the Commissioner and Administrative Law Judge (“ALJ”) under 

Sentence Four of § 405(g).

IT IS SO ORDERED.

Date: January 16, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE