UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KAREN RIGHTER-MALESKO,

Plaintiff, 

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:18-cv-00126

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

The Social Security Administration provides Supplemental Security Income to 

individuals with a “disability” (among other eligibility requirements). Bowen v. City of 

New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). A “disability” in this 

context means “any medically determinable physical or mental impairment” that 

precludes an applicant from performing a significant paid job (“substantial gainful 

activity”). 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.

Plaintiff Karen Righter-Milesko suffers from bipolar disorder and other health 

problems. She applied for Supplemental Security Income in February 2013. 

Administrative Law Judge Gregory G. Kenyon denied her application on two occasions

both times finding Plaintiff is not under a “disability.” The Social Security 

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

Administration’s Appeals Council found several flaws in ALJ Kenyon’s first decision

and, consequently, vacated and remanded it with instructions.

In the present case, Plaintiff challenges the decision ALJ Kenyon issued—again 

finding her not disabled—upon remand. She argues that (1) the ALJ unreasonably 

weighed the opinions of her four treating physicians and the opinions of the reviewing 

consultants, and (2) presented an incomplete hypothetical to a vocational expert upon 

whom he relied to support his non-disability decision. (Doc. #7, PageID #2144).

The Commissioner argues that the ALJ reasonably weighed the medical-opinion 

evidence and the ALJ’s hypothetical question was not reversible error. 

II. Background

Plaintiff was forty-eight years old when she applied for Supplemental Security 

Income (in February 2013). She was therefore considered a “younger person” under 

social-security regulations. See 20 C.F.R. § 416.963(c). She later moved into the 

regulation’s category of a “person closely approaching advanced age.” Id. at § 

416.963(d). ALJ Kenyon found that Plaintiff had a high-school education, at a minimum. 

Plaintiff testified that she held a bachelor’s degree in history. Id. at 71.

Plaintiff testified during administrative hearings that she has had bipolar disorder 

since she was twenty-four years old “and it’s always been severe.” (Doc. #5, PageID

#75). She explained, “I was able to work for my parents..., so they had—I had unlimited 

sick leave, basically....” Id. She described this job as “very special in that they didn’t 

fire me for the months I was out sick with bipolar illness....” Id. at 89. She continued, “I 
3

think it’s really realistic that I don’t have more than two good hours a day on top of the 

tasks of daily living to try to make my way.” Id. at 89-90.

Plaintiff suffers from mood swings from mania to depression. She has been 

psychiatrically hospitalized (four times, she recalls). Id. at 75-76. During a manic phase, 

she cannot sleep and becomes very irritable. Id. at 1144-45. She has “ranting spells...” 

and “probably [has] a meltdown every damn day.” Id. at 1148. She explained, “I can 

rant and yell ... probably about 6:00 [p.m.] almost every single day, because it’s, that’s 

about my day, I get up and—about when you need to wash dishes, cook dinner and, you 

know....” Id.

When depressed, she has “had a lot of suicidal thoughts,” up to four times per day. 

Id. at 76. Other symptoms include a combination of “self-hatred, loathing, cussing 

around the house, [and] crying a lot.” Id. During phases where her mental-health 

symptoms are out of control, she tends to isolate herself. Id. at 80-81. 

She can generally take care of her own needs: She does her own laundry, cooking, 

shopping, and house cleaning. Yet, she explained, “I can manage to do those things 

when I’m well. I mean there’s a big difference when I’m not well, I’m a mess.” Id. at 

81-82. If she is really depressed, she struggles “to do things that will make [her] stay 

alive....” Id. at 85.

Plaintiff will spend down times with her sister due to her fear of self-harm. Id. at 

86. Her medications have been altered many times “[b]ecause they haven’t been 

successful....” Id. at 86. 

Plaintiff testified that her physical health problems include mild neuropathy in her 
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feet. Id. at 72. They hurt “from the moment [she] gets up in the morning until the time 

[she] goes to bed at night....” Id. at 73. She can’t stand for more than forty-five minutes 

at a time, and she does not walk for more than twenty minutes at a time. Her foot pain is 

accompanied by coldness and numbness but not swelling. Id. at 87.

Plaintiff stated that she has been diagnosed with Multiple Sclerosis. Id. at 73, 

1138. It has caused occipital neuralgia which affects her vision. Id. It also causes 

neurological symptoms on her left side, limits her ability to use her hands, and makes her 

feet tingle. Id. at 74, 1139-41, 1143. She struggles with cognition and word finding. Id. 

at 1141-43. 

Plaintiff’s hobby is acting at a community playhouse theatre. When the ALJ asked 

her how long she had been doing that, she testified:

[T]he bipolar illness is bad for a while and then you get a time when it’s not 

so bad. And then maybe you can do something with your life for a while. 

And something like theatre is short-term commitment and I do have abilities 

in that sense so I can do it.

Id. at 79. When she played a lead role (Anna in The King and I) she became sick. She 

explained, “I had a manic episode at the end of that show and missed three performances 

because it was a very long rehearsal period and kind of a—there’s sort of, you know, 

pettiness and drama and stress that goes along with even doing something like a hobby. 

And you’ve got to cope with it, and I don’t cope very well.... Because I am more 

sensitive than most people.” Id. at 79.

During an ordinary day, she gets up around 8:30, does Pilates exercises, eats, 

bathes, and gets dressed. Plaintiff is a writer. If she has any creative energy or initiative 
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she’ll “work on some writing....” Id. at 83. She explained, “But with the depression 

it’s... hard to focus and it’s hard—if you’re blank and you haven’t got any focus then 

you’ve got to find something else to do. And I do some other things with the—I check 

the email....” Id. at 83-84. She also volunteered with a committee that was trying to 

organize a group of business people to meet and provide cooperative businesses for lowincome people. They would meet once a week, and she sent them emails and reminders. 

She was also the treasurer for her church, but it did not work out. Indeed, neither activity 

appears to have worked out. She testified, “it wasn’t working out very well and I started 

waking up early in the morning, like 3:00 a.m. and I had problems with the committee 

and its ethical direction.” Id. at 84.

Plaintiff went grocery shopping (she did not say how often) and she usually 

cooked dinner. Once during the week, she would see her boyfriend. She explained, 

“And I guess it doesn’t sound like a lot, but ... it’s a lot.” Id. When the ALJ asked 

Plaintiff why she thought she could not work full time, she answered, “Because doing 

those little things is a full-time job for me. And I wish it wasn’t but it is.... It uses up 

what I have for a day.... [I]f things are going really well for me, then I might be able to 

do two hours for four or five days a week of a project, or a writing project, or ... acting 

....” Id. at 84-85.

As to the medical evidence, the Commissioner incorporates the ALJ’s recitation of 

the facts in his decision, and the Commissioner describes the medical information and 

opinions. (Doc. #9, PageID #s 2162, 2166-73). Plaintiff has likewise discussed the 

medical evidence in detail. (Doc. #6, PageID #s 2137-43). Rather than repeat these 
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reviews of the medical evidence, the pertinent evidence will be discussed below, infra, §

IV. 

III. Standard of Review and ALJ Kenyon’s Decision

Review of ALJ Kenyon’s most-recent decision considers whether he applied the 

correct legal standards and whether substantial evidence supports his 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). Substantial evidence consists of “more than a 

scintilla of evidence but less than a preponderance....” Rogers v. Comm’r of Soc. Sec., 

486 F.3d 234, 241 (6th Cir. 2007); see Lawson v. Comm’r of Soc. Sec., 3:17cv119, 2018 

WL 3301421, at *4 (S.D. Ohio 2018) (Ovington, M.J.), Report & Recommendations 

adopted, 2018 WL 3549787, at *1 (S.D. Ohio 2018) (Rice, D.J.).

 The ALJ considered the evidence and evaluated Plaintiff’s disability assertions

under each of the five sequential steps set forth in the Social Security Regulations. See 

20 C.F.R. § 416.920. His more pertinent findings began at step two where he found that 

Plaintiff had numerous severe impairments: history of neuromas affecting her feet, 

degenerative disc disease of the cervical spine, Multiple Sclerosis, left-shoulder 

tendonitis, diminished peripheral vision in her left eye, and bipolar disorder. At step 

three, the ALJ concluded that Plaintiff’s impairments did not automatically qualify her

for benefits. (Doc. #5, PageID #s 1108-11).

At step four, the ALJ concluded that the most Plaintiff could do (her “residual 

functional capacity,” see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 

2002)), consists of “light work” with 10 specific limitations—for example, “(1)
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occasional crouching, crawling, kneeling, stooping, and climbing of ramps and stairs...; 

(7) limited to performing unskilled, simple, repetitive tasks; (8) occasional contact with 

coworkers, supervisors and the public; (9) no fast pace production work or jobs involving

strict production quotas; (10) limited to performing jobs in which there is little, if any, 

change in the job duties or the work routine from one day to the next.” Id. at 1111. 

The ALJ found at step five that Plaintiff retained the ability to perform a 

significant number of jobs that exist in the national economy. These main findings led 

the ALJ to ultimately conclude that Plaintiff was not under a benefits-qualifying 

disability. Id. at 1121-22.

IV. Discussion

A. Treating Medical-Source 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) ); Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 

2014). If the treating medical source’s opinion is not controlling, “the ALJ, in 
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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 v. Commissioner of Social Sec., 486 F.3d 234, 242 

(6th Cir. 2007) (citation omitted); see Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) 

(quoting, in part, 20 C.F.R. § 404.1527(d)(2)).

“[T]he ALJ must provide ‘good reasons’ for discounting treating physicians’ 

opinions, reasons that are ‘ sufficiently specific to make clear to any subsequent 

reviewers the weight the adjudicator gave to the treating source’s medical opinion and the 

reasons for that weight.” Rogers, 486 F.3d at 242 (quoting, in part, Soc. Sec. R. 96-2p, 

1996 WL 374188, at *5 (July 2, 1996)).

B. Drs. Songer, Perilman, and Polansky

On remand from this Court, the Appeals Council reviewed ALJ Kenyon’s first 

decision and identified several problems with it, starting with his review of Dr. Songer’s 

opinions and continuing with his review of the opinions provided by Drs. Perilman and 

Polanksy. (Doc. #5, PageID #s 1194-95). 

On remand from the Appeals Council, ALJ Kenyon issued the non- disability 

decision at issue in the present case. The ALJ again weighed Dr. Songer’s opinions and 

gave them little weight. Id. at 1119. The ALJ noted that in March 2013 (1) Dr. Songer 

was Plaintiff’s treating psychiatrist, (2) Dr. Songer indicated that significant stress often 

affected Plaintiff’s sleep and made her more prone to affective instability, and (3) Dr. 

Songer said that Plaintiff exhibited poor frustration tolerance and difficulty concentrating.
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Id. at 1118. The ALJ also recognized that, in April 2014, Dr. Songer believed Plaintiff 

had marked impairment in her ability to maintain attention and concentration for 

extended periods and set realistic goals or make plans independently of others. Dr. 

Songer found that Plaintiff had extreme limitation in her ability to perform activities 

within a schedule and maintain regular attendance, be punctual within customary 

tolerances, and complete a normal workday and workweek. And, as the ALJ correctly 

recognized, Dr. Songer thought Plaintiff would be absent from work more than three 

times per month due to her impairments. See id. at 1118-19, 485-88, 855-58.

The ALJ placed “little weight” on Dr. Songer’s opinions “because the level of 

limitation he describes is in significant conflict with the claimant’s day-to-day 

functioning.” Id. at 1119. The ALJ also reasoned, “Dr. Songer’s marked level 

limitations are both inconsistent with and not supported by his own treatment records 

which indicate that the claimant’s bipolar complaints are sufficiently well controlled 

when she takes her medication as prescribed such that she is able to pursue complex pasttimes such as writing plays and significant social activities....” Id.

The ALJ failed to weigh Dr. Songer’s opinions as the applicable law requires. 

Although it is not manifest, it appears that the ALJ started off on the right track by 

considering the treating-physician rule’s legal criteria. This might be gleaned from his 

conclusions that Dr. Songer’s opinions were both inconsistent with and not supported by 

his own treatment notes. But there is no indication that he gave meaningful thought to 

the length, frequency, nature, and extent of Dr. Songer’s treatment relationship with 

Plaintiff or to the consistency of his opinions with the other medical source opinions of 
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record. See Rogers, 486 F.3d at 242. “[I]n all cases there remains a presumption, albeit a 

rebuttable one, that the opinion of a treating physician is entitled to great deference, its 

non-controlling status notwithstanding. Id. (citing and parenthetically quoting, Soc. Sec. 

Rul. 96–2p, 1996 WL 374188, at *4 (“In many cases, a treating physician’s medical 

opinion will be entitled to the greatest weight and should be adopted, even if it does not 

meet the test for controlling weight.”))

Even if this problem is set aside, the ALJ followed his previously flawed 

reasoning by focusing on what he believed the record said about Plaintiff’s daily 

activities without reference to specific evidence and without addressing contrary 

evidence. See Doc. #5, PageID #1119. The Appeals Council explained this problem 

when reviewing the ALJ’s first decision: 

The record indicates that the claimant is not always able to perform her 

activities of daily living. For instance, Dr. Songer’s treatment notes indicate 

the claimant’s “depression has been quite prominent and disabling,” 

characterized by excessive sleep, lack of motivation to perform activities of 

daily living, and inability to look forward to activities that used to provide 

pleasure. In addition, the [ALJ’s] decision does not specify the evidence that 

supports the finding that the claimant’s bipolar complaints are sufficiently 

well controlled. The record instead indicates that even when compliant with 

medication, the claimant had depression characterized by crying spells, 

memory deficits, suicidal ideation, low energy, poor motivation and selfloathing.”

Id. at 1194 (citations omitted).

The significance of the Appeals Council’s findings regarding Dr. Songer’s 

opinions is twofold. First, ALJ Kenyon’s weighing of Dr. Songer’s opinion (in his 

second decision) fails to contain a single citation to any specific portion of the 

psychiatrist’s “own treatment notes” in support of his assertion that the same belie the 
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treating source’s conclusions. See id. at 1119. As the Appeals Council rightfully 

concluded, this is a fatal flaw in ALJ Kenyon’s opinion weighing. See Cottingim v. 

Commissioner, Case No. 3:14-cv-0012, 2015 WL 2383520, Report & Recommendations

*9 (S.D. Ohio, May 19, 2016), aff’d, 2015 WL 3606838 (June 8, 2015) (citing Friend v. 

Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010)). 

Second, the Appeals Council’s decision highlights how ALJ Kenyon’s current 

findings regarding Dr. Songer’s opinions, like those he made previously, are not actually 

supported by the record’s evidence. The evidence cited by the Appeals Council joins 

other evidence throughout the record to belie and otherwise render unsupported ALJ 

Kenyon’s contentions that Dr. Songer’s opinion is inconsistent with Plaintiff’s daily 

activities or otherwise incongruent with the longitudinal contents of the psychiatrist’s 

records. See Doc. #5, PageID #1194. 

The Commissioner argues that the ALJ properly assessed and relied on Plaintiff’s 

day-to-day activities when rejecting the medical sources’ opinions. The Commissioner 

points out that earlier in his decision, the ALJ properly considered that Plaintiff was able 

to pursue complex activities such as writing plays and engaging in significant social 

activities. And the Commissioner emphasizes, as did the ALJ, that even on Plaintiff’s 

bad days, she is able to engage in the mental-work activities identified in the ALJ’s 

assessment of her residual functional capacity. These contentions lack merit. ALJ 

Kenyon neglected that the record readily reveals the same to be intermittent and subject 

to disruption secondary to the ebb and flow of Plaintiff’s mental health symptoms. And, 

the ALJ paid no heed to Plaintiff’s consistent testimony that her ability to engage in day-
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to-day activities, including her writing and acting, is directly dependent upon the severity 

of her bipolar symptoms. The activities she identified—cooking, cleaning, and the like—

can be too much for her when she is depressed. Similarly, the stress involved in acting 

can trigger her symptoms to the extent she must stop acting. This occurred, for example, 

when she had the lead role as Anna in The King and I. The ALJ provided no indication 

that he considered the evidence contrary to his conclusion about Plaintiff’s day-to-day 

activities. 

The ALJ also found that Plaintiff had a “typically euthymic mood.” (Doc. #5, 

PageID # 1117)(citations omitted). While the record frequently documents her euthymic 

mood, this only comes when her prescription mental-health medications—which are 

numerous and strong (e.g., Lithium, Depakote, Serax, Asenipine) are efficacious. 

Moreover, the ALJ’s reference to Plaintiff’s typically euthymic mood tends to betray an 

incomplete understanding of bipolar disorder, which can involve extended periods of 

euthymic mood when treatment is successful. It is the nature of this disorder that it will 

at times be symptomatic (manic or depressive) and at times asymptomatic (euthymic) 

And there is little doubt that during her euthymic periods Plaintiff could perform some 

work and perhaps hold a temporary job. Cf. Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 

2008) (recognizing that a bipolar plaintiff who is “heavily medicated” could “cope with 

the challenges of daily living, and would doubtless enable her to work on some days.”).

Plaintiff could do so when she worked for her parents but only because her parents

allowed her to be absent from work when she experienced debilitating symptoms. No 

employer would allow this in our modern economy, as the vocational expert explained. 
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(Doc. #5, PageID #96) (employers would not tolerate an individual absent three times per 

month; “Really employers would not tolerate anything more than one day [per month].”)

Turning to the ALJ’s weighing of Dr. Perilman’s opinion, the ALJ wrote, “The 

undersigned gives little weight to the opinion of Dr. Perilman, as he is a family physician 

and not a mental health professional. Further, his responses to the Interrogatories are 

undercut by the claimant’s documented level of day-to-day activity.” Id. at 1119. The 

Appeals Council expressly and rightfully rejected this exact same criticism of Dr. 

Perilman’s opinion from ALJ Kenyon’s first decision:

In addition, the decision afforded little weight to the opinion evidence 

provided by David Perilman, M.D. because he is a family physician and his 

opinion is undercut by the claimant’s documented level of day-to-day 

activity (Decision, page 10). However, the evidence of record indicates the 

claimant was not able to perform her activities of daily living during 

depressive or bipolar episodes (Exhibit, 35F, page 92). In addition, Dr. 

Perilman’s treatment records indicate he treated the claimant’s bipolar 

disorder (Exhibits 24F, page 2; & 25F).

Id. at 1195. In rejecting these challenges to Dr. Perilman’s opinions, the Appeals Council 

hit the nail squarely on the head. As far as Dr. Perilman being a family physician rather 

than “a mental health professional,” this is not a reasonable basis for discounting the 

provider’s opinion, particularly where he actively treated Plaintiff’s mental health. See 

Marcum v. Comm’r, Case No. 3:15-cv-245, 2016 WL 4086984, at *6 Report &

Recommendations (Aug. 2, 2016, S.D. Ohio), adopted 2016 WL 4440326 (Aug. 23, 

2016).

The ALJ also gave little thought to opinions of treating podiatrist Dr. Polansky by 

weighing his opinions in just the following citation-less sentence: “The undersigned give 
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little weight to the opinion of Dr. Polansky because the record continues to show that the 

claimant has a normal gait.” (Doc. #5, PageID #1119). The ALJ should have known this 

was insufficient because the Appeals Council not only had previously criticized ALJ 

Kenyon for not specifying evidence in support of his weighing of Dr. Polansky’s 

opinions but had also specifically cited to medical evidence supportive of the physician’s 

opinion that the ALJ had previously ignored and continues to do so. Id. Beyond being 

cursory and unsupported by citations, ALJ Kenyon’s “normal gait” hypothesis is also 

unsustainable in that it is both unsupported by the record’s evidence and not reasonably 

related to his rejection of Dr. Polansky’s conclusions. Rather than consistently indicating 

a normal gait, the record instead reveals Plaintiff at least intermittently having gait 

abnormalities, at times even indicating that she was in a cast and/or using a walker. See

id. at 343-45, 348, 352, 354-58, 500, 574, 590, 594, 594, 602, 608, 873, 878, 883, 1060, 

1076, 1091, & 2004. 

Even if Plaintiff’s gait was consistently normal (which it was not), it is entirely 

unclear why this fact alone would merit entirely rejecting Dr. Polansky’s opinions 

regarding Plaintiff’s ability to stand and need to elevate her legs, particularly in the 

context of the other evidence severe foot problems cited by the Appeals Council. 

Plaintiff next contends that ALJ Kenyon’s weighing of the state agency’s nonexamining consultants’ opinions rests on reversible error. She maintains that the ALJ did 

not apply the correct legal criteria to the opinions of Drs. Warren and Terry by not 

mentioning the applicable factors—supportability, consistency, and specialization.

“‘The regulations provide progressively more rigorous tests for weighing opinions 
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as the ties between the source of the opinion and the individual become weaker.’” 

Gayheart, 710 F.3d at 375 (quoting Soc. Sec. Rul. No. 96–6p, 1996 WL 374180, at *2 

(July 2, 1996)). The ties between Plaintiff, on one side, and Drs. Warren and Terry, on 

the other, fall at the weakest end of the spectrum because they were not treating 

physicians, examining physicians, or consulting physicians. “[O]pinions from 

nontreating and nonexamining sources are never assessed for ‘controlling weight.’ The 

Commissioner instead weighs these opinions based on the examining relationship (or 

lack thereof), specialization, consistency, and supportability, but only if a treating-source 

opinion is not deemed controlling. Other factors ‘which tend to support or contradict the 

opinion’ may be considered in assessing any type of medical opinion. Gayheart, 710 

F.3d at 376 (citation omitted).

ALJ Kenyon assigned “partial weight” to the opinions of Drs. Warren and Terry, 

who reviewed the medical record in 2013. (Doc. #5, PageID #s 127-28, 110-12, 1120). 

Notably, the “partial weight” assigned to the opinions of these non-examiners is greater 

than the weight ALJ Kenyon assigns to the opinion of any of Plaintiff’s four treating 

physicians. See id. at 1119-20. He explained: 

The undersigned gives partial weight to the assessments of these reviewers. 

The undersigned did not specifically limit the claimant to superficial social 

contacts, as that term is not defined by the Dictionary of Occupational Titles 

whereas occasional is defined. The above restriction from simple, repetitive 

tasks with no more than occasional contact with coworkers, supervisors, and 

the public, when considered together, are sufficient that any social contact 

the claimant would be compelled to have as part of her actual job duties 

would be sufficiently superficial. The claimant’s theatre involvement is also 

inconsistent with their conclusions that the claimant could have only 

superficial social contact.
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Id. at 1120.

ALJ Kenyon’s discussion of the merits and scope of a restriction to superficial 

social contact avoids referencing a substantive reason for placing partial weight on these 

Drs. Warren’s and Terry’s opinions. Without some explanation of why he placed more

weight on their opinions than on the opinions of Plaintiff’s treating sources, the ALJ 

erred. “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, in part, Soc. Sec. Rul. No. 96–6p, 1996 WL 

374180, at *2).

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.2

V. 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 

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 v. Comm’r of Soc. Sec., 741 F.3d 708, 725-26 (6th 

Cir. 2014); or failed to provide specific reasons supported by substantial evidence for 

 2 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.
17

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 4 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 warranted in the present case because the evidence 

of disability is strong while contrary evidence is lacking. This is, moreover, an unusual 

case considering the fact that a remand for further proceedings would require a third

decision by an Administrative Law Judge (unless the Appeals Council remanded for 

benefits). In these circumstances and given the strong evidence of disability while 

contrary evidence is lacking, there is no just reason to further delay this matter for even 

more administrative proceedings. See Gentry, 741 F.3d at 730 (remanding for benefits 

after 2 remands and 3 administrative hearings and finding, “In light of the extensive 

opinions of treating physicians as to the severity of Gentry’s psoriasis and psoriatic 

arthritis, we conclude that substantial evidence on the record as a whole supports a 

finding of total disability.”); see also Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 

2004) (“Allowing the Commissioner to decide the issue again would create an unfair 

‘heads we win; tails, let’s play again’ system of disability benefits adjudication.” (other 
18

citation omitted)); Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998) (“Given the 

obduracy evidenced by the action of the administrative agency on remand, we remand the 

case to the agency with directions that the application for benefits be granted.”); Randall 

v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992) (“Because of the medical record, we think 

it unconscionable to remand this eight year old case to the Secretary for further review.”).

IT IS THEREFORE RECOMMENDED THAT:

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

2. This matter be REMANDED to the Social Security Administration under 

sentence four of 42 U.S.C. § 405(g) for payment of benefits; and

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

August 6, 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).