UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TERRI PARRISH,

Plaintiff,

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:17-cv-00411

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

After concluding that she could no longer work as of January 23, 2013, Plaintiff Terri 

Parrish turned to the Social Security Administration for assistance by applying for Disability 

Insurance Benefits and Supplemental Security Income. The Social Security Administration

denied her applications based on Administrative Law Judge Elizabeth A. Motta’s conclusion 

that her health impairments did not constitute a “disability” under the Social Security Act. 

(Doc. #6, PageID #s 68-85).

Plaintiff mainly argues in this Court that ALJ Motta failed to properly evaluate the 

opinions provided by her treating physician Kwasi A. Nenonene, M.D., and by crediting the 

opinions of the record-reviewing physicians. She seeks an Order reversing the ALJ’s 

decision and remanding this matter for payment of benefits or, at a minimum, for further 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
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administrative proceedings.

The Commissioner maintains that substantial evidence supports the ALJ’s 

assessment of Plaintiff’s residual functional capacity and disagrees, for various reasons, 

with Plaintiff’s contentions. The Commissioner therefore asks the Court to affirm ALJ

Motta’s decision.

II. “Disability” Defined and Standards of Review

The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other 

eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42 

U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security 

Act—has specialized meaning of limited scope. It encompasses “any medically 

determinable physical or mental impairment” that precludes an applicant from performing a 

significant paid job—i.e., “substantial gainful activity.” 42 U.S.C. §§ 423(d)(1)(A), 

1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.

Present judicial review of ALJ Motta’s decision proceeds along two lines: whether 

she applied the correct legal standards and whether substantial evidence supports her

findings. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. 

Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Review for substantial evidence 

is not driven by whether the Court agrees or disagrees with the ALJ’s factual findings or by 

whether the administrative record contains evidence contrary to those findings. Gentry v. 

Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 

F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ’s factual findings are upheld if the 
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substantial-evidence standard is met—that is, “if a ‘reasonable mind might accept the 

relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting 

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence 

consists of “more than a scintilla of evidence but less than a preponderance....” Rogers, 486 

F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.

If the ALJ applied incorrect legal criteria, reversal may be warranted even though the 

record contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. 

Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746.

III. Plaintiff and Her Testimony

Plaintiff was 49 years old on the date her asserted disability began (January 23, 

2013). This placed her in the category of a younger person under social security

regulations. 20 C.F.R. § 404.1563(c).2

 When she turned age 50, she moved into the 

category of a person closely approaching advanced age. Id. at § 404.1563(d). 

Plaintiff graduated from high school and worked various jobs over the years, 

including the job of motor vehicle sub-assembler. (Doc. #6, PageID #s 171, 290-301).

Plaintiff’s health problems include high blood pressure, Type II diabetes, sleep 

apnea, cervical degenerative-disc-ventral-cord abutment with broad protrusion, asthma, 

anxiety, dysthymia, and “explosive disorder.” Id. at 325.

Plaintiff testified during a hearing held by ALJ Motta that she began having mentalhealth problems in 2005. She has diabetes “and it’s getting worse...,” she has high blood 

 2 Citations to social security regulations will identify the pertinent Disability Insurance Benefits regulation 

with full knowledge of the corresponding Supplemental Security Income regulation.
4

pressure, and “just all kinds of things.” Id. at 100. When she was employed, she was 

always out sick or she spent the majority of her shift in the medical area. Following her job

at Delphi, she attempted to work but wasn’t able to hold a job—she “didn’t work for more 

than two weeks.” Id.

Plaintiff’s long-time physician, Dr. Nenonene, treats her for depression, diabetes, 

carpal tunnel syndrome, and all her health problems. At the time of the ALJ’s hearing, Dr. 

Nenonene had treated Plaintiff for about 10 years.

Plaintiff testified that she takes insulin and Metformin to treat diabetes. Her blood 

glucose ranges from 300 to 400, even with insulin and Metformin. Her symptoms include 

weakness and frequent nausea. She has neuropathy in her hands and feet—it feels like 

someone is sticking needles into her feet. Id. at 102-03. Neuropathy makes her feet “real 

sore,” and sometimes she can barely walk. Id. at 103. Plaintiff plays the piano or organ, but 

it increases the pins-and-needles feeling in her hands and causes her so much pain she starts 

crying. Id. The pain in her right hand is also caused by carpal tunnel syndrome. Id. at 104. 

Her index finger on her right hand gets numb. One physician instructed her to use braces 

for her carpal tunnel, but she cannot afford them.

Plaintiff testified that she can’t control her anger. Id. at 107. Her father passed away 

about five months before the ALJ’s hearing, and she “[could] not deal with it.” Id. at 108. 

She loved her father and “didn’t like that he suffered a lot.” Id. She also suffers from the 

same health problems as her father. She noted, “it’s kind of scary.” Id.

Plaintiff sometimes forgets things she should remember. People complain to her 

about her memory (“why can’t you ... remember that”; “why can’t you be more 
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organized”). Id. She forgets where she puts things. She forgets important things she has to 

do. She procrastinates. Id. at 109.

Plaintiff has explosive outbursts of anger. She tries not to get upset because she can’t 

function when she is upset. She tries to keep calm and not let anything upset her. She can’t 

function when she is upset. Id. at 109-10.

At the time of the ALJ’s hearing, Plaintiff had been experiencing pain in her right 

index finger for three weeks without interruption. She explained that sometimes she has 

pain in her whole hand and arm. She also has almost daily chest pains, like she is having a 

heart attack. She testified, “It’s really scary..., I go through life in fear, and I shouldn’t have 

to live like that.” Id. at 110. She has difficulty opening jars that have not been opened 

before. Id. at 110-11.

Plaintiff’s children grocery shop for her. She does not like to be around other people; 

she hates crowds. She likes to be by herself most of the time. She sometimes attends 

church because there are not many people there.

During a typical day, Plaintiff lies around unless she has an appointment or 

something to do. She’s not motivated to get up and do things. Instead, she always naps. Id. 

at 112. And, she hates the way she feels. She told the ALJ, “I just feel that—like I say, I’ve 

always worked since I was 15. I did not stop working till I got sick, and I was always going 

through depression and stuff....” Id. at 113. During her employment with Delphi, they let 

her go twice but hired her back. They then offered her, and other employees, a buyout 

because it appeared as though the plant was closing. She was one of the employees who 

left. She explained, “I said I wasn’t working half of the time anyway. And I went and tried 
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two more jobs after that. And I just couldn’t do it.” Id. at 114.

Plaintiff acknowledged that she can cook sometimes, but she had not cooked during 

the three months before the ALJ’s hearing. When she is feeling good, she can get up and 

cook a meal. If she is not feeling good, she does not worry about cooking. Id. She does her 

laundry once or twice a month. She does not mow grass or work in the garden. She visits 

her grandchildren but does not watch them for long because she doesn’t feel like doing 

anything. Every now and then, she practices playing a new piece of music on the piano. Id. 

at 116-17.

IV. ALJs’ Decisions And Most Recent Medical Opinions

The administrative record establishes that Plaintiff has unsuccessfully applied for 

Disability Insurance Benefits and Supplemental Security Income on three separate 

occasions. On each occasion, Plaintiff’s applications sought benefits during a new time 

frame. And, in connection with each time frame, a different ALJ found that Plaintiff was 

not under a disability. 

• ALJ Redmond found Plaintiff not disabled from January 2003 to July 2009. 

• ALJ Lombardo found Plaintiff not disabled from July 2009 to January 23, 2013.

• ALJ Motto found Plaintiff not disabled from January 23, 2013 to February 1, 2017.

The timing of these decisions is significant in part because ALJ Motto—like ALJ 

Lombardo before her—concluded that Plaintiff could perform a limited range of light work. 

Doing so, ALJ Motto credited the opinions provided by state-agency record-reviewing 

physicians Gary Hinzman, M.D. and Abraham Mikalov, M.D. (Doc. #6, PageID #s 215, 

226-27). Dr. Hinzman reviewed the record in November 2014 and concluded that Plaintiff 
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could perform the same range of light work described by ALJ Lombardo in her previous 

decision. Dr. Hinzman reported that he adopted ALJ’s Lombardo’s assessment of Plaintiff’s 

work abilities and limitations under Security Administration’s Acquiescence Ruling (AR) 

98-4(6) and Drummond v. Comm’r of Soc. Sec., 126 F.3d 187 (6th Cir. 1997). (Doc. #6,

PageID #215).

Dr. Hinzman also explained that his assessment of Plaintiff’s residual functional 

capacity applied to the two-month period “from 1/24/13” (the day after ALJ Lombardo’s 

decision) “to DLI 3/31/13” (the date Plaintiff was last insured for Disability Insurance 

Benefits). (Doc. #6, PageID #215). The upshot of this is that Dr. Hinzman did not assess, 

or offer an opinion on, Plaintiff’s residual functional capacity after March 31, 2013. See id.

Dr. Mikalov reviewed the record in May 2015. He, like Dr. Hinzman, believed that 

Plaintiff could perform a limited range of light work. Id. at 226-27. Dr. Mikalov explained 

that he adopted ALJ Lombardo’s previous assessment based on AR 98-4(6) and Drummond. 

Id. at 227. Dr. Mikalov noted that all the new evidence he reviewed “is after the DLI [date 

last insured].” Id. Consequently, Dr. Mikalov’s review—unlike Dr. Hinzman’s review—

considered the evidence after 3/31/13 and until 5/12/2015, the date of Dr. Mikalov’s 

decision.

ALJ Motta also reviewed the information and opinions Plaintiff’s treating physician 

Dr. Nenonene provided in June 2016. Dr. Nenonene listed Plaintiff’s medical conditions as 

diabetes mellitus, hypertension, anxiety, diabetic neuropathy, and urinary incontinence. He 

reported that Plaintiff’s health problems had been ongoing for years and that she was 

“currently on chronic meds.” (Doc. #6, PageID at 984). Dr. Nenonene opined that during 
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an 8-hour workday, Plaintiff could stand/walk for 2 hours (1 hour without interruption); sit 

for 2 hours (1 hour without interruption); and frequently or occasionally lift/carry 5-10 

pounds. Dr. Nenonene believed that Plaintiff was markedly limited in pushing/pulling, and 

moderately limited in bending, reaching, handling, and repetitive foot movements. He 

based his opinions about Plaintiff’s work limitations on the results of the physical exams he 

conducted during her office visits and on consultation reports. Dr. Nenonene also indicated 

that Plaintiff was “unemployable” and would remain so for 12 or more months. Id. at 995.

V. ALJ Motta’s Decision

In reviewing the evidence connected to Plaintiff’s application for benefits, ALJ 

Motta utilized the 5-step analysis enumerated in social security regulations. See 20 C.F.R. § 

404.1520(a)(4); see e.g., Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 931 (6th Cir. 2018). 

Some of her more significant findings occurred at Steps 2 and 3 where she found that 

Plaintiff’s severe impairments—“degenerative disc disease of the cervical spine, left carpal 

tunnel syndrome in the non-dominant hand, diabetes mellitus, obesity, hypertension, and an 

affective disorder with features of depression and anxiety”—plus her non-severe 

impairments did not automatically qualify her for benefits under the Commissioner’s Listing 

of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. #6, PageID #s 71-76).

At Step 4, ALJ Motta concluded that Plaintiff could perform light work subject to 

many limitations:

(1) lifting and carrying up to 20 pounds occasionally and 10 pounds frequently

with the right, dominant arm and up to 10 pounds with the left arm; (2) sitting, 

standing, and walking six hours each during an 8-hour workday; (3) occasional 

postural activities, such as climbing stairs and/or ramps, balancing, stooping, 

kneeling, crouching and crawling; (4) no climbing ladders, ropes, or scaffolds; 
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(5) no exposure to hazards, such as dangerous machinery or unprotected 

heights; (6) handling and fingering limited to frequently bilaterally; (7) 

overhead reaching limited to occasionally bilaterally; (8) limited to low stress 

work with no strict production quotas or fast pace and only routine work with 

few changes in the work setting; and (9) no more than occasional contact with 

the public, coworkers and supervisors. 

Id. at 76. Given these limited abilities, Plaintiff could no longer engage in her past relevant 

work. Id. at 83.

Continuing to step 5, ALJ Motta determined that Plaintiff could perform a significant 

number of jobs (mail clerk, office helper, photocopy machine operator) that exist in the 

national economy. Her ability to do such jobs meant she was not under a disability and not 

eligible to receive Disability Insurance Benefits or Supplemental Security Income. Id. at

83-84.

VI. Discussion

A. Earley, Drummond, and AR 98-4(6)

The Commissioner argues that Drummond, 126 F.3d 187 and AR 98-4(6) required 

ALJ Motta to adopt ALJ Lombardo’s previous assessment of Plaintiff’s residual functional 

capacity “except to the extent that any new and material evidence documented a change in 

Plaintiff’s condition.” (Doc. #9, PageID #1078). ALJ Motto relied on the binding impact 

ALJ Lombardo’s prior assessment of Plaintiff’s residual functional capacity imposed under 

AR 98-4(6) and Drummond, “absent new and material evidence documenting a significant 

change in a claimant’s condition....” (Doc. #6, PageID #68). And, ALJ Motta found 

“[t]here is new and material evidence documenting some change in [Plaintiff’s] condition 

since...” ALJ Lombardo’s decision. Id.
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At the time of ALJ Motta’s decision, neither she nor the parties had the benefit of 

Earley, 893 F.3d at 933, which declined to extend Drummond’s application of res judicata 

to new applications seeking social-security benefits for an unadjudicated time period. The 

Sixth Circuit in Earley explained:

If an individual, say, files a second [social-security disability] application for 

the same period of time finally rejected by the first application and offers no 

explanation for revisiting the first application, res judicata would bar the second 

application....

‘Res judicata bars attempts to relitigate the same claim, but a claim that one 

became disabled in 1990 is not the same as a claim that one became disabled in

1994.’

Id. (quoting, in part, Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998)).

So it is here. Plaintiff asserted in her previous applications—the ones ALJ Lombardo 

resolved—that she had become disabled starting in July 2009. Plaintiff asserted in her more 

recent applications—the ones ALJ Motta resolved—that she had become disabled starting 

on January 23, 2013. Plaintiff is not trying to relitigate her previous claim for a previous 

period of disability; she is litigating her new claim that she became disabled starting on 

January 23, 2013. In this manner, Plaintiff takes the same approach as the plaintiff in 

Earley by filing “a new application for a new period of time....” Earley, 893 F.3d at 933. 

Res judicata simply does not apply to this situation, see id., and both ALJ Motta and the 

Commissioner are incorrect as a matter of law in their assertion3 that ALJ Lombardo’s

 3 See Doc. #6, PageID #68; Doc. #9, PageID #1078.
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assessment of Plaintiff’s residual functional capacity “was binding on” ALJ Motta absent 

new and material evidence. See id. 4

This does not mean, however, that ALJ Motta could not consider ALJ Lombardo’s 

decision. After all, “it is fair for an administrative law judge to take the view that, absent 

new and additional evidence, the first administrative law judge’s findings are a legitimate, 

albeit not binding, consideration in reviewing a second application.” Earley, 893 F.3d at

933. Earley calls this a “fresh review,” but notes, “A fresh review is not a blind review. A 

later administrative law judge may consider what an earlier judge did if for no other reason 

than to strive for consistent decision making.” Id. at 934.

What, then, did ALJ Motta do? She recited the new-and-material-evidence rule from 

AR 98-4(6) and Drummond, while also effectively taking a fresh look at Plaintiff’s new 

applications and evidence in a manner that aligns with Earley. See Johnson v. Comm’r of 

Soc. Sec., 2018 WL 6440897, at *15 (E.D. Mich. 2018) (and cases cited therein) (when ALJ 

gives the new evidence a fresh look, Earley is satisfied) (and cases cited therein) Report and 

Recommendation adopted by 2018 WL 6434778 (Dec. 7, 2018). This fresh look is seen in 

ALJ Motta’s finding that Plaintiff had severe impairments (obesity, diabetes, and 

hypertension) beyond those ALJ Lombardo had identified. Further, ALJ Motta described 

and examined in detail and at length Plaintiff’s new medical evidence at Steps 2, 3, and 4 of 

her sequential evaluation. (Doc. #6, PageID #s 71-83). And ALJ Motta found that 

 4 Again, to be fair, neither ALJ Motta nor the Commissioner had the benefit of Earley. Yet, Earley applies to 

ALJ Motta’s decision in the same manner that Earley applied to a previous ALJ’s decision. See Johnson v. 

Comm’r of Soc. Sec., 2018 WL 6440897, at *15 (E.D. Mich. 2018) (and cases cited therein), Report & 

Recommendation adopted by, 2018 WL 6434778 (Dec. 7, 2018).
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Plaintiff’s residual functional capacity for light work was more limited than ALJ Lombardo 

had previously described. Compare Doc. #6, PageID #76 with PageID #192. Given these 

features of ALJ Motta’s decision, she did not simply adopt ALJ Lombardo’s previous 

findings. She effectively conducted a fresh review of Plaintiff’s new applications, up-todate evidence, and disability status during the new time period that started on January 23, 

2013.

This is not to say that substantial evidence supports her findings and it draws no 

conclusion about the other legal criteria ALJ Motta applied. It is only to say that her 

decision adequately complied with Earley’s direction to take a fresh look at new evidence 

connected to a new time period. 893 F.3d at 931-34. A separate inquiry remains about 

whether substantial-evidence supports the conclusions ALJ Motta drew from her fresh 

review.

B. Remaining Issues

Plaintiff contends that the ALJ erred by applying greater scrutiny to the opinions of 

her treating physician, Dr. Nenonene, than she applied to the opinions of state-agency 

record-reviewing physicians. In this way, the ALJ failed to follow social security

regulations and caselaw, according to Plaintiff.

The Commissioner contends, “Plaintiff is attempting to color [the ALJ’s] thorough 

and regulations-mandated analysis [of Dr. Nenonene’s opinions] as too-heavy scrutiny when 

in fact there was nothing improper about it.” (Doc. #9, PageID #1085). The Commissioner 

further argues, “the ALJ based her assessment of Plaintiff’s RFC [residual functional 

capacity] on the prior ALJ decision RFC—to which she was bound absent new and material 
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evidence warranting a change in RFC—and on ... additional objective medical evidence, 

which justified some postural limitations but did not support a different RFC finding 

regarding Plaintiff’s sitting, standing, or walking....” Id. at 1084-85 (citing Drummond and 

AR 98-4(6)) (other citations omitted). In a footnote, the Commissioner points out that both 

Drs. Hinzman and Mikalov were bound by and adopted the prior ALJ’s (ALJ Lombardo’s) 

assessment of Plaintiff’s residual functional capacity per Drummond and AR 98-4(6). Id. at 

104 n.4.

The Commissioner inadvertently points to a problem: Neither Dr. Hinzman nor Dr. 

Mikalov were bound to ALJ Lombardo’s assessment of Plaintiff’s residual functional 

capacity because res judicata does not apply in this case, as explained in Earley. See supra, 

§ VI(A). These physicians essentially shackled themselves to ALJ Lombardo’s assessment 

of Plaintiff’s residual functional capacity. Other than referring to AR 98-4(6) and 

Drummond, they provided no explanation in support of their opinions that indicates they 

took a fresh look at Plaintiff’s new and additional evidence. Without such a fresh look, the 

opinions provided by Drs. Hinzman and Mikalov are not grounded on the correct legal 

criteria, see Earley, 893 F.3d at 931-34, despite their expertise in “the evaluation of the 

medical issues in disability claims under the [Social Security] Act.” Soc. Sec. R. 96-6p, 

1996 WL 374180, *2 (July 2, 1996). Another way to view this problem is that if these 

physicians had formed their medical opinions based only on the medical evidence, there 

would be no Earley violation. Instead, because these physicians glued their opinions to ALJ 

Lombardo’s findings without indicating they took a fresh look at Plaintiff’s new and 

additional evidence, they erred as a matter of law. See Earley, 893 F.3d at 931-34. And 
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given this error of law, a reasonable mind would not accept their opinions as substantial 

evidence to support the ALJ’s assessment of Plaintiff’s residual functional capacity. See 

Blakley, 581 F.3d at 407 (evidence is substantial if a ‘reasonable mind might accept the 

relevant evidence as adequate to support a conclusion.’”).

It might seem unfair to the Commissioner to apply Earley to Dr. Hinzman’s and Dr. 

Mikalov’s opinions because Earley identified the ALJ’s res-judicata error; Earley did not 

specifically address whether the record-reviewing physicians committed the same error. Yet

it would be contradictory, if not absurd, to require an ALJ to take a fresh look at the new 

and additional medical evidence but permit the same ALJ to credit a record-reviewing 

physician who failed to conduct such a fresh evidentiary review in violation of Earley. Like 

ALJs, physicians (record-reviewing or otherwise) are not bound by a previous ALJ’s 

decision and are not precluded from asking whether the evidence supports an applicant’s 

most recent application. Cf. Earley, 893 F.3d at 932 (“Instead of asking whether the 

evidence supported Earley’s new application, [the] ALJ... thought he was precluded by the 

first ruling.... That is not how it works.”). Consistency, moreover, is achieved by 

recognizing that both ALJs and physicians are not are bound by a prior ALJ’s findings, and 

both must conduct a fresh review of the applicant’s new and additional evidence in 

connection with a more recent application for benefits.

It might also seem unfair to the Commissioner to apply Earley to Dr. Hinzman’s and 

Dr. Mikalov’s opinions because they provided their opinions before Earley issued. Yet the 

unfairness falls the other way: Plaintiff has not had her new and additional medical records 

reviewed by a state-agency physician (or an ALJ) under the Earley legal criteria. This is 
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disconcerting in light of Earley’s common-sense observation, “human health is rarely static. 

Sure as we’re born, we die. Sometimes we get sick and sometimes we become better as 

time passes.” Earley, 893 F.3d at 933. It is these possibilities that the fresh-review analysis 

seeks to sort out when a state-agency record-reviewer or an ALJ evaluates subsequent

applications for disability benefits supported by new and additional evidence. See id.

And looking back further, several dominoes fall under a nudge from Earley. Not 

only did ALJ Motta rely on Dr. Hinzman and Dr. Mikalov, who incorrectly felt bound by 

ALJ Lombardo’s findings, ALJ Lombardo likewise thought she was bound by the previous 

ALJ—ALJ Redmond’s—findings without undertaking a fresh review of Plaintiff’s thennew and additional evidence. See Doc. #6, PageID #182. Because Earley rejects this 

approach, ALJ Motta’s error cannot be rescued by the past ALJs’ findings. 

This is not to say that an ALJ may never rely on a state-agency physician’s opinions

that pre-dates Early and refers to AR 98-4(6) or Drummond. And it is not to say that the 

state-agency physicians err by considering a prior ALJ’s findings. It is instead to say—in 

line with Earley—that the prior ALJ’s findings are a “legitimate, albeit not binding, 

consideration” for state-agency, record-reviewing physicians take into account. See Earley, 

893 F.3d at 933. Here, Drs. Hinzman’s and Mikalov’s mistake was to credit ALJ 

Lombardo’s findings because AR 98-4(6) and Drummond mandated them to do so, not 

because their fresh look at Plaintiff’s new and additional evidence led them to do so. See id. 

Without their fresh look, their opinions do not constitute substantial evidence in support of 

the ALJ’s findings. Consequently, although the ALJ to conducted a fresh review of the 

evidence, see supra, § IV(A), her review relied on evidence that was not substantial—
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namely, the flawed opinions of Drs. Hinzman and Mikalov.

Even if the ALJ’s decision was not flawed by relying on Dr Hinzman’s and Dr. 

Mikalov’s opinions, more problems exist. ALJ Motta placed “partial weight” on these 

record-reviewing physicians’ opinions, and she found that Plaintiff’s diabetes, hypertension, 

and obesity are severe impairments that warrant limiting Plaintiff to occasional postural 

activities. (Doc. #6, PageID #81). ALJ Motta also limited Plaintiff to lifting no more than 

10 pounds with her left arm but concluded there was “no objective basis to limit 

significantly the claimant’s ability to lift and/or carry with the right, dominant upper 

extremity.” Id. at 78. ALJ Motta further wrote, “The prior decision [ALJ Lombardo’s] 

referred only to a left upper extremity impairment....” Id.

This misreads ALJ Lombardo’s decision. ALJ Lombardo restricted Plaintiff to “no 

lifting of more than 10 pounds....” Id. at 192. She explained, “Restricting the claimant to 

light exertion with a ten-pound lifting limitation adequately addresses any potential 

restrictions that might be associated with degenerative abnormalities of the cervical spine.” 

Id. at 193. Because ALJ Lombardo limited Plaintiff’s lifting ability based on degenerative 

abnormalities in her neck (cervical spine), ALJ Motta mistakenly observed that ALJ 

Lombardo’s decision “referred only to a left upper extremity impairment.” Id. ALJ Motta 

compounded her misreading by finding that Plaintiff could lift and carry up to 20 pounds 

with her right upper extremity. ALJ Motta reasoned that this restriction “gives maximum 

benefit of doubt to the claimant’s history of mild cervical degenerative disc disease, as well 

as her subject complaints, and is consistent with the requirements of AR 98-4(6).” Id. at 78. 

In this manner, ALJ Motta simply disagreed with ALJ Lombardo by characterizing 
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Plaintiff’s cervical degenerative disc disease as mild. ALJ Lombardo did not use the 

adjective “mild” when finding that Plaintiff’s “degenerative abnormalities of the cervical 

spine” warranted restricting her lifting ability to more than 10 pounds. Id. at 193.

ALJ Motta also provided no mention, let alone discussion, of the regulatory factors 

she applied to the opinions of Drs. Hinzman and Mikalov. Such an omission was significant 

because these physicians did not provide any meaningful supporting explanation for the 

opinions and did not refer to evidence consistent with their opinions. See Gayheart v. 

Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)

(“The Commissioner ... weighs these opinions based on the examining relationship (or lack 

thereof), specialization, consistency, and supportability ....”). Again, these physicians

merely adopted ALJ Lombardo’s assessment of Plaintiff’s residual functional capacity 

under AR 98-4 and Drummond. (Doc. #6, PageID #s 215, 236-37). Doing so, they did not 

point to any evidence that they relied on to adopt ALJ Lombardo’s decision or residualfunctional-capacity assessment. They, moreover, incorrectly thought AR 98-4(6) bound 

them to ALJ Lombard’s previous decision, see supra, § IV(A), and their cursory comments 

fail to show that erred by not taking a fresh look at the medical evidence. See id. 

This returns the present review to ALJ Motta’s decision to place “partial weight” on 

Plaintiff’s treating physician Dr. Nenonene’s opinions. The Commissioner mischaracterizes 

Plaintiff’s argument as an attack on the scrutiny ALJ Motta gave Dr. Nenonene’s opinions. 

Plaintiff’s argument is comparative: She maintains that ALJ Motta erred by subjecting Dr. 

Nenonene’s opinions to greater scrutiny than she applied to the opinions of Drs. Hinzman 

and Mikalov. Plaintiff is correct that the ALJ did this, compare Doc. #6, PageID #81 with
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PageID #s 81-83, and she is correct that this constitutes legal error. “A more 

rigorous scrutiny of the treating-source opinion than the nontreating and nonexamining 

opinions is precisely the inverse of the analysis that the regulation requires.” Gayheart, 710 

F.3d at 379 (citing 20 C.F.R. § 404.1527(c); Soc. Sec. Rul. No. 96-6p, 1996 WL 374180, at 

*2 (July 2, 1996)). Similarly, “the regulations do not allow the application of greater 

scrutiny to a treating-source opinion as a means to justify giving such an opinion little 

weight. Indeed, they call for just the opposite.” Id. at 380.

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.

VII. Remand Is Warranted

Remand is warranted when an ALJ’s decision is unsupported by substantial evidence 

or when the ALJ failed to follow the Administration’s own regulations and that shortcoming 

prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial right. Bowen, 

478 F.3d at 746. Remand for an ALJ’s failure to follow the regulations might arise, for 

example, when the ALJ failed to provide “good reasons” for rejecting a treating medical 

source’s opinions, see Wilson, 378 F.3d at 545-47; failed to consider certain evidence, such 

as a treating source’s opinions, see Bowen, 478 F3d at 747-50; failed to consider the 

combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to 

provide specific reasons supported by substantial evidence for finding the plaintiff’s 

credibility lacking, Rogers, 486 F.3d at 249.

Under sentence four of 42 U.S.C. §405(g), the Court has authority to affirm, modify, 

or reverse the Commissioner’s decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under 
19

sentence four may result in the need for further proceedings or an immediate award of 

benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 

1994). The latter is warranted “only where the evidence of disability is overwhelming or 

where the evidence of disability is strong while contrary evidence is lacking.” Felisky, 35 

F.3d at 1041 (quoting Faucher v. Sec’y of Health & Humans Servs., 17 F.3d 171, 176 (6th 

Cir. 1994)).

A remand for an award of benefits is unwarranted in the present case because the 

evidence of disability is not overwhelming and because the evidence of disability is not 

strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is 

entitled to an Order remanding this matter to the Social Security Administration pursuant to 

sentence four of § 405(g) due to errors identified above. On remand the ALJ should be 

directed to review Plaintiff’s disability claim to determine anew whether she was under a 

benefits-qualifying disability pursuant to the applicable five-step sequential evaluation 

procedure.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability Decision issued on February 1, 2017 be 

vacated;

2. No finding be made as to whether Plaintiff Terri Parrish was under a 

“disability” within the meaning of the Social Security Act;

3. This case be remanded to the Social Security Administration under sentence 4 

of 42 U.S.C. §405(g) for further consideration consistent with this Report and 

any Decision and Entry adopting this Report and Recommendations; and
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4. The case be terminated on the docket of this Court.

April 3, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise 

directs. A party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).