UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

SHERRI MCCAIN, 

Plaintiff, 

vs. 

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

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Case No. 3:17-cv-402 

District Judge Thomas M. Rose 

Magistrate Judge Sharon L. Ovington 

REPORT AND RECOMMENDATIONS1

I. Introduction 

Plaintiff Sherri McCain brings this case challenging the Social Security 

Administration’s denial of her applications for period of disability, Disability Insurance 

Benefits, and Supplemental Security Income. She applied for benefits on May 6, 2014, 

asserting that she could no longer work a substantial paid job. Administrative Law Judge 

(ALJ) Mark Hockensmith concluded that she was not eligible for benefits because she is 

not under a “disability” as defined in the Social Security Act. 

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the 

Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc. #11), 

and the administrative record (Doc. #6). 

 

1

 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations. 
2

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for 

further proceedings. The Commissioner asks the Court to affirm ALJ Hockensmith’s 

non-disability decision. 

II. Background 

Plaintiff asserts that she has been under a “disability” since July 13, 2013. She 

was forty-four years old at that time and was therefore considered a “younger person” 

under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She has a 

limited education. See id. §§ 404.1564(b)(3), 416.964(b)(3).2

A. Plaintiff’s Testimony 

Plaintiff testified at the hearing before ALJ Hockensmith that she has pain in her 

back and legs that “feels like somebody’s ... twisting the muscle.” (Doc. #6, PageID

#271). Her muscles get “really, really tight” and sore. Id. at 272. She estimated she 

could walk 1 or 2 blocks before her pain is too unbearable. Id. If she does too much, she 

has to sit down. Id. But, she can only sit for 25 minutes before needing to stand up to 

stretch. Id. at 281. She used a cane for a little bit but does not think it helped. Id. at 272. 

She has issues with her ankle: “sometimes I trip because it seems like my ankle 

just goes in when I’m walking.” Id. at 270. She also has a sharp pain shooting down her 

left leg twice a week. Id. at 271. When it happens, she has to stop moving until the 

muscle spasm goes away. Id. 

 

2

 The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full 

knowledge of the corresponding Supplemental Security Income Regulations. 
3

Plaintiff saw Dr. Soin for pain management. Id. at 272-73. He tried to help her 

with anti-inflammatory medications and three injections. Id. at 273. Plaintiff did not 

believe his methods worked and she changed doctors. Id. Her new doctor, Dr. Probst, 

diagnosed sciatica with nerve damage and suggested putting screws in the right side of 

her back to help with the pain. Id. 

Plaintiff had left carpal tunnel release and ulnar release surgery in September 

2014. Id. In June 2015, she had surgery on her right side. Id. Unfortunately, she has 

had some lingering issues. She does not have a lot of strength in her hands, and if she 

bends her wrist for too long, her hands go numb. Id. at 275. 

Plaintiff has struggled with some mental health issues. After she stopped working, 

she gained weight and began to feel bad about herself. Id. at 276. She has trouble being 

around a lot of people and started experiencing paranoia. Id. She has mood swings—

“Either I’m real, real mad or real irritated or I just be quiet, don’t talk, just everybody be 

still.” Id. at 281. At the time of the hearing, she was taking Zoloft. Id. at 276. 

During the day, she sometimes visits her 80-year-old neighbor. Id. at 277. She 

also does chores in the house. For example, she vacuums every day. But, she can only 

vacuum for 3 to 4 minutes at a time before needing to sit down and take a break. Id. at 

280, 282. Plaintiff has a driver’s license and drives two or three times a week. Id. at 265. 

B. Medical Opinions 

i. Amol Soin, M.D. 

Plaintiff’s treating physician, Dr. Soin, completed two medical impairment 

questionnaires. In January 2015, he indicated that Plaintiff has sciatica and thoracic or 
4

lumbosacral neuritis or radiculitis. Id. at 1213. She has ongoing chronic pain and her 

health status is poor but stable. Id. Dr. Soin opined she could frequently lift and/or carry 

6 to 10 pounds. Id. at 1214. Her ability to stand, walk, and sit are affected by her 

impairments. Id. Her ability to push, pull, bend, and reach are extremely limited. Id. 

In June 2016, Dr. Soin indicated that, upon examination or testing, Plaintiff 

exhibited positive straight leg raising; severe burning or painful dysesthesia; and an 

inability to ambulate effectively. Id. at 1281. He opined that her pain is severe. Id. 

Further, she can stand for 15 minutes at a time and cannot occasionally or frequently 

lift/carry any weight. Id. 

ii. Joseph Cools, Ph.D., & Vicki Warren, Ph.D. 

Dr. Cools reviewed Plaintiff’s records in January 2015. Id. at 291-306. He found 

that she had three severe impairments— “Disorders of Back–Discogenic and 

Degenerative”; “Other and Unspecified Arthropathies”; and Carpal Tunnel Syndrome—

and three non-severe impairments—Affective Disorders; Anxiety Disorders; and 

Substance Addiction Disorders. Id. at 300. Dr. Cools opined Plaintiff has a mild 

restriction in activities of daily living; mild difficulties in maintaining social functioning; 

mild difficulties in maintaining concentration, persistence, or pace; and no repeated 

episodes of decompensation. Id. 

In May 2015, Dr. Warren reviewed Plaintiff’s records and affirmed Dr. Cools’s 

findings. Id. at 325-37. 
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iii. Diane Manos, M.D., & Venkatachala Sreenivas, M.D. 

Dr. Manos reviewed Plaintiff’s records in December 2014. Id. at 291-306. She 

opined Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently. 

Id. at 302-03. She could sit for 6 hours in an 8-hour workday and stand and/or walk for 6 

hours. Id. at 303. She could not climb ladders, ropes, or scaffolds. Id. She could 

occasionally balance, stoop, kneel, crouch, crawl, and climb ramps/stairs. Id. Because of 

her carpal tunnel syndrome, she could frequently handle and finger. Id. at 304. Dr. 

Manos concluded that Plaintiff is not under a disability. Id. at 305. 

In April 2015, Dr. Sreenivas reviewed Plaintiff’s records and affirmed most of Dr. 

Manos’s findings. Id. at 325-37. Dr. Sreenivas found that Plaintiff could frequently 

kneel and crouch. Id. at 335. 

III. Standard 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,” in Social Security 

lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70. 

Judicial review of an ALJ’s non-disability decision proceeds along two lines: 

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ 
6

are supported by substantial evidence.” 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 factual 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 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. 

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal 

criteria—may result in reversal even when 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. “[E]ven if supported by substantial 

evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to 

follow its own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part 

Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 

(6th Cir. 2004)). 
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IV. The ALJ’s Decision 

 As noted previously, it fell to ALJ Hockensmith to evaluate the evidence 

connected to Plaintiff’s applications for benefits. He did so by considering each of the 

five sequential steps set forth in the Social Security Regulations. See 20 C.F.R. § 

404.1520. He reached the following main conclusions: 

 Step 1: Plaintiff has not engaged in substantial gainful employment since July 

13, 2013. 

 Step 2: She has the severe impairments of degenerative disc disease, residuals 

from a right ankle fracture, bilateral carpal tunnel syndrome, residuals 

from a left ulnar release surgery, and obesity. 

 Step 3: She does not have an impairment or combination of impairments that 

meets or equals the severity of one in the Commissioner’s Listing of 

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

 Step 4: Her residual functional capacity, or the most she could do despite her 

impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 

(6th Cir. 2002), consists of “light work ... except that she cannot 

climb ladders, ropes or scaffolds, can ... occasionally climb ramps 

and stairs, as well as occasionally balance, stoop, kneel, crouch and 

crawl. She is further limited to frequent handling and fingering 

bilaterally and frequent use of foot controls on the right, and 

occasional pushing or pulling with the lower extremities.” 

 Step 4: She is capable of performing past relevant work as a press operator 

 Step 5: She could perform a significant number of jobs that exist in the 

national economy. 

(Doc. #6, PageID #s 235-47). These main findings led the ALJ to ultimately conclude 

that Plaintiff was not under a benefits-qualifying disability. Id. at 246. 
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V. Discussion 

Plaintiff contends that the ALJ failed to adequately weigh the medical opinions. 

The Commissioner disagrees. 

A. Medical Opinions 

Social Security Regulations require ALJs to adhere to certain standards when 

weighing medical opinions. “Key among these is that greater deference is generally 

given to the opinions of treating physicians than to those of non-treating physicians, 

commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations 

omitted). The rule is straightforward: 

Treating-source opinions must be given “controlling weight” 

if two conditions are met: (1) the opinion “is well-supported by 

medically acceptable clinical and laboratory diagnostic 

techniques”; and (2) the opinion “is not inconsistent with the 

other substantial evidence in [the] case record.” 

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20 

C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723. 

If the treating physician’s opinion is not controlling, “the ALJ, in determining how 

much weight is appropriate, must consider a host of factors, including the length, 

frequency, nature, and extent of the treatment relationship; the supportability and 

consistency of the physician’s conclusions; the specialization of the physician; and any 

other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544). 

 The Regulations also require ALJs to provide “good reasons” for the weight 

placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory 

“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the 
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weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p, 

1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to 

any subsequent reviewer the weight given and the reasons for that weight. Id. 

Substantial evidence must support the reasons provided by the ALJ. Id. 

In the present case, ALJ Hockensmith assigned the opinions of Plaintiff’s treating 

physician, Dr. Soin, little weight. (Doc. #6, PageID #244). He did not mention the 

treating physician rule or otherwise indicate that he considered whether Dr. Soin’s 

opinions were due controlling weight. Indeed, his only reference to the rule comes earlier 

in his decision: “I have also considered opinion evidence in accordance with the 

requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-

3p.” Id. at 240. Without a separate description of the legal criteria the ALJ applied, his 

decision must be scrutinized to determine whether he “applied the correct legal criteria” 

when weighing the medical source opinions. Bowen, 478 F.3d at 745-46. 

The ALJ addressed Dr. Soin’s two opinions separately. Looking first at his 2015 

opinions, the ALJ gave several reasons for assigning them little weight. The ALJ found 

that Dr. Soin’s “findings lack support from the objective record ....” (Doc. #6, PageID

#244). It is not clear if the ALJ is addressing the first condition of the treating physician 

rule—whether the opinion is well-supported by medically acceptable clinical and 

laboratory diagnostic techniques—or the supportability factor. Under either, his 

conclusion, like that of the ALJ in Gayheart, is ambiguous. Gayheart, 710 F.3d at 377 

(“the conclusion that Dr. Onady’s opinions ‘are not well-supported by any objective 

findings’ is ambiguous.”). “One cannot determine whether the purported problem is that 
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the opinions rely on findings that are not objective (i.e., that are not the result of 

medically acceptable clinical and laboratory diagnostic techniques, see 20 C.F.R. § 

404.1527(c)(2)), or that the findings are sufficiently objective but do not support the 

content of the opinions.” Id.

In addition, ALJ Hockensmith found that Dr. Soin’s “findings lack support ... 

from other opinion statements from treating clinicians.” (Doc. #6, PageID #244). 

Although the ALJ is correct, there are also no opinions from other treating clinicians that 

contradict Dr. Soin’s opinions. There are no other opinions from other treating clinicians. 

The Regulations do not require a treating physician’s opinion be supported by another 

treating clinician’s opinion in order to be given controlling weight. See 20 C.F.R. § 

404.1527(c)(2). To the extent the ALJ is rejecting Dr. Soin’s opinion on this basis, the 

ALJ is demanding more of Dr. Soin than is required by the Regulations. 

Next, ALJ Hockensmith discounted Dr. Soin’s opinions that Plaintiff has extreme 

limitations in bending and reaching because they are “inconsistent with the claimant’s 

daily activities, including her ability to attend to chores, shopping and childcare duties.” 

(Doc. #6, PageID #244). The ALJ could be referring to the second condition of the 

treating physician rule—whether the opinion is not inconsistent with the other substantial 

evidence in the case record—or he could be referring to the consistency factor. 

Regardless, substantial evidence does not support the ALJ’s conclusion. Plaintiff 

reported that she is able to complete some chores. For instance, she vacuums regularly. 

However, she is only able to vacuum for three to four minutes at a time and then needs a 

break to sit down. Id. at 282. She also washes dishes and has to sit down to let her back 
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relax before she can start again. Id. at 280. She does not have to reach very high to put 

dishes away. Id. at 279. She also explained that although her carpal tunnel surgeries 

initially helped, after a little while, she began having problems with her upper body. Id.

at 274. When she tries to wash dishes or fold laundry, her upper body gets tired. Id. 

Further, she does not have a lot of strength in her hands. Id. 

Turning to shopping, Plaintiff testified that she cannot walk around a store for very 

long. Id. at 272. She has picked up a 24-pack of water but it hurt her back. Id. at 279. 

She is able to pick up a 12-pack without problems. Id. Last, concerning childcare duties, 

Plaintiff testified that she babysat her sister’s three children—ages 3, 6, and 9—five days 

a week while her sister was working. Id. at 267. She “[j]ust made sure they had their 

food and stuff .... They mostly just play.” Id. She was able to change the youngest’s 

diapers without problems but she had difficulty picking up her niece (who did not like to 

walk on her own). Id. at 269-70. These activities, considered together, are not 

inconsistent with Dr. Soin’s opined limitations. 

Further, the ALJ fails to mention that Dr. Soin’s opinion is consistent with Dr. 

Propst’s treatment notes that indicate Plaintiff had decreased flexion, extension, and 

lateral bend in her spine, ribs, and pelvis. Id. at 1246, 1254, 1260, 1269, 1276. His 

opinions are likewise consistent with his own treatment notes. For instance, he 

documented that she had pain to palpation in her lower lumbar spine, her finger to floor 

flexion was less than 90 degrees and was limited by pain and stiffness, her extension to 

30 degrees was limited due to pain, and her lateral bending to 25 degrees was limited by 
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pain. Her straight leg raise was positive and it elicited ipsilateral pain in the lower 

lumbar spine. Id. at 1170, 1188, 1193, 1200, 1203. 

Last, the ALJ found that although Dr. Soin’s opined Plaintiff’s ability to sit, stand, 

and walk were limited, “he did not provide specifics ....” Id. at 244. He accurately noted 

that Dr. Soin’s “records were illegible with regard to that information ....” Id. It was 

reasonable to assign Dr. Soin’s opinions—on Plaintiff’s ability to sit, stand, and walk—

less weight based on the lack of explanation. See 20 C.F.R. § 404.1527(c)(3) (“The 

better an explanation a source provides for a medical opinion, the more weight we will 

give that medical opinion.”). 

The ALJ did not discuss the treating physician’s rule in his evaluation of Dr. 

Soin’s 2016 opinions. Nonetheless, he did provide some reasons for assigning the 

opinions little weight. He found, “[Dr. Soin’s] opinion relies on a faulty premise as there 

is no evidence that the claimant’s gait difficulties rise to the level of an inability to 

ambulate effectively. The claimant was not prescribed a walker or other assistive device 

and while there is evidence of an antalgic gait at times with isolated instances of cane 

use, there is no significant pattern of evidence to support such an extreme allegation.” 

(Doc. #6, PageID #244). This conclusion ignores the majority of Dr. Soin’s treatment 

notes that indicate Plaintiff reported that standing and/or walking increased her pain and 

prevented her from walking more than a few feet (up to several blocks). Id. at 1168, 

1185, 1187, 1191, 1198, 1202. Similarly, Dr. Probst consistently documented that 

Plaintiff had an antalgic gait. Id. at 1254, 1260, 1269, 1276. The ALJ also ignores 
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Plaintiff’s testimony that she does not use a cane because she did not think it helped. Id.

at 272. 

 Next, the ALJ discounted Dr. Soin’s opinion because, “[t]here is also little 

evidence to support the contention that the claimant can lift no weight. As noted above, 

the claimant is able to attend to a range of activities of daily living, including childcare 

and driving and while significant deficits were appreciated on a range of physical exams, 

none of them support such extreme limitations.” Id. at 244. However, as explained in 

more detail above, Plaintiff’s ability to do limited activities is not inconsistent with Dr. 

Soin’s opinions. There is no suggestion from her activities that she can occasionally (up 

to 2.5 hours) lift and/or carry any weight. She testified that she can pick up a 12-pack of 

pop at the grocery store without problems. Id. at 279. However, she could “just barely 

able” to lift a 24-pack of water. Id. at 279-80. She also indicated that while she was 

babysitting, she had trouble carrying her niece because it “was just too much on [her] 

back.” Id. at 270. These activities are not inconsistent with Dr. Soin’s opinion. 

ALJ Hockensmith further concluded, “To the extent that his opinion regarding the 

claimant’s possible absenteeism and time of task is based on these extreme limitations, it 

is similarly unpersuasive.” Id. at 244. Without further explanation, which the ALJ does 

not provide, this is simply a disagreement with Dr. Soin’s opinion without grounding 

from evidence in the record. 

Last, the ALJ discounted Dr. Soin’s 2016 opinions because they “lack support 

from corroborating opinion evidence from other physicians and are undermined by 

evidence showing the claimant’s conditions improved with surgery and other treatment.” 
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Id. This harkens back to the ALJ’s earlier mistake: there are no other opinions from 

treating physicians, and that alone does not detract from Dr. Soin’s opinions. Further, 

while some of Plaintiff’s impairments may have improved, Dr. Soin consistently noted 

that conservative methods of treatment—over-the-counter medication, NSAIDS, activity 

modification, home-exercise—were unsuccessful in treating Plaintiff’s persistent pain. 

Id. at 1171-72, 1178, 1189, 1193, 1201. 

The reasons provided by ALJ Hockensmith do not amount to “good reasons” for 

rejecting Dr. Soin’s opinions because they are not supported by substantial evidence. 

“The failure to provide ‘good reasons’ for not giving [the treating physician’s] opinions 

controlling weight hinders a meaningful review of whether the ALJ properly applied the 

treating-physician rule . . . .” Gayheart, 710 F.3d at 377. 

The ALJ assigned the State agency physicians’ opinions “some partial weight.” 

(Doc. #6, PageID #244). He found that evidence received after their review “indicates 

that some further restriction is necessary in terms of use of her right foot for foot controls 

and in pushing and pulling with her legs. Otherwise, however, the light exertional level 

is generally appropriate.” Id. The ALJ also credited the physicians because, “[t]hese 

examiners possess Agency specific knowledge of standards and definitions and supported 

their analyses with citations to the objective evidence and a persuasive narrative.” Id. 

Plaintiff correctly points out that the ALJ mistakenly referred to these recordreviewing physicians as “State agency examiners.” Id. at 243-44; see Doc. #7, PageID 

#1954 (“ALJ Hockensmith unduly elevated them in the regulatory hierarchy of opinions 

....”). 
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Moreover, Plaintiff accurately observed that the ALJ erred in finding that the State 

agency physicians supported their opinions with a persuasive narrative. The physicians’ 

explanations are very limited—for instance, when asked to explain Plaintiff’s postural 

limitations and how/why the evidence supports those conclusions, Dr. Sreenivas noted, 

“Ch LBP with radiculopathy, bilateral CTS.” (Doc. #6, PageID #334). 

Further, the ALJ erred by failing to apply the same level of scrutiny to reviewing 

physicians’ opinions as he applied to treating source’s opinion. See Gayheart, 710 F.3d 

at 379 (citing 20 C.F.R. § 404.1527(c); Soc. Sec. R. 96-6p, 1996 WL 374180, at *2 (July 

2, 1996)) (“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.”). For example, the ALJ criticized Plaintiff’s treating physician’s opinion 

because it was not supported by any other treating clinician’s opinion. However, the ALJ 

did not discount the State agency physicians’ opinions because they were not supported 

by a treating clinician’s opinion. 

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3

B. Remand 

A remand is appropriate when the 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 may be warranted when the ALJ failed to 

 

3

 In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of 

Plaintiff’s other challenges to the ALJ’s decision is unwarranted. 
16

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 F.3d 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 lacks credibility, see 

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 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 where the evidence of disability is overwhelming or 

where the evidence of disability is strong while contrary evidence is lacking. Faucher v. 

Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). 

A judicial award of benefits is unwarranted in the present case because the 

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

while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding 

this case to the Social Security Administration pursuant to sentence four of § 405(g) due 

to the problems discussed above. On remand, the ALJ should be directed to evaluate the 

evidence of record, including the medical source opinions, under the applicable legal 

criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and 

to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to 
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determine anew whether Plaintiff was under a disability and whether her applications for 

Disability Insurance Benefits and Supplemental Security Income should be granted. 

IT IS THEREFORE RECOMMENDED THAT: 

1. The Commissioner’s non-disability finding be vacated; 

2. No finding be made as to whether Plaintiff Sherri McCain was 

under a “disability” within the meaning of the Social Security 

Act; 

3. This matter be REMANDED to the Social Security 

Administration under sentence four of 42 U.S.C. § 405(g) for 

further consideration consistent with this Report and 

Recommendations, and any decision adopting this Report and 

Recommendations; and 

4. The case be terminated on the Court’s docket. 

April 2, 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).