UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

HOLLY D. NEWSOME, 

Plaintiff, 

 Civil Action 2:18-cv-497 

 Judge James L. Graham 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 

 Plaintiff, Holly D. Newsome (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

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

application for Supplemental Security Income benefits. This matter is before the undersigned 

for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 16), the 

Commissioner’s Response in Opposition (ECF No. 22), and the administrative record (ECF No. 

9). For the reasons that follow, it is RECOMMENDED that the Court REVERSE the 

Commissioner of Social Security’s non-disability finding and REMAND this case to the 

Commissioner and the ALJ for further consideration consistent with this Report and 

Recommendation. 

I. BACKGROUND 

Plaintiff protectively filed her application for Supplemental Security Income benefits on 

April 23, 2014. Plaintiff alleged a disability onset of September 15, 2012. Plaintiff’s 

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applications were denied initially on September 12, 2014, and upon reconsideration on January 

15, 2015. Plaintiff sought a hearing before an administrative law judge. Administrative Law 

Judge Gregory Moldafsky (the “ALJ”) held a hearing on January 5, 2017, at which Plaintiff, 

represented by counsel, appeared and testified. Vocational Expert Lynne M. Kaufman (the 

“VE”), also appeared and testified at the hearing. On May 3, 2017, the ALJ issued a decision 

finding that Plaintiff was not disabled within the meaning of the Social Security Act. On March 

28, 2018, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s 

decision as the Commissioner’s final decision. Plaintiff then timely commenced the instant 

action. 

In her Statement of Errors, Plaintiff asserts that the ALJ erred by failing to provide “good 

reasons” for declining to give the opinions of her treating physician, Michael Sayegh, M.D., 

controlling weight. 

II. RELEVANT RECORD EVIDENCE 

A. Treating Physician, Michael Sayegh, M.D. 

In September 2014, Plaintiff’s pain management doctor, Dr. Sayegh, completed an 

evaluation form on her behalf. (R. at 551.) Dr. Sayegh stated that he first treated Plaintiff on 

December 4, 2013, and that he had last seen her on September 4, 2014. (Id.) He diagnosed 

Plaintiff with lumbago, sciatica, sprain/strain, facet syndrome, HNP, degenerative disc disease, 

abdominal pain, cellulitis, protein S deficiency, varicose veins, pelvic vascular congestion, 

depression, sleep disturbance, and anxiety. (Id.) Dr. Sayegh identified the following findings 

on clinical examination related to Plaintiff’s conditions: lumbar paraspinal muscle tenderness, 

trigger points, decreased sensation to the lateral aspect of her left lower extremity, positive 

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bilateral straight leg lift at 60 degrees. (Id.) Dr. Sayegh also referenced Plaintiff’s lumbar 

MRI from March 30, 2014, which revealed facet osteoarthropathy and focal central disc 

protrusion. (Id.; see also R. at 423.) Dr. Sayegh stated that Plaintiff’s conditions are treated 

with medication management of Flexeril and Norco, and that she reports that medication helps. 

(R. at 551-52.) Dr. Sayegh opined that Plaintiff’s impairments impose the following 

limitations on Plaintiff’s ability to perform work: (1) “no sitting, bending, stooping for long 

periods of time;” (2) “pt must take 15 min breaks every 1-2 hrs;” and (3) “no lifting of heavy 

objects more than 5-10 pounds.” (R. at 552.) 

B. The Administrative Decision 

 On May 3, 2017, the ALJ issued his decision. (R. at 10-29.) At step one of the 

sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged in substantial 

 

1. Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

1. Is the claimant engaged in substantial gainful activity? 

2. Does the claimant suffer from one or more severe impairments? 

3. Do the claimant’s severe impairments, alone or in combination, meet or equal 

the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

4. Considering the claimant’s residual functional capacity, can the claimant 

perform his or her past relevant work? 

5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the 

national economy? 

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

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gainful activity since April 23, 2014, the application date. (Id. at 12.) At step two, the ALJ 

found that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine, 

degenerative joint disease of the right knee, obesity, protein S deficiency,2

 depressive disorder, 

and anxiety disorder. (Id.) He further found that Plaintiff had the non-severe impairments of 

gastroesophageal reflux disease (GERD), hyperlipidemia, pelvic vascular congestion, and 

dermatitis. (Id. at 13.) At step three, the ALJ found that Plaintiff did not have an impairment 

or combination of impairments that met or medically equaled one of the listed impairments 

described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 14.) At step four of the 

sequential process, the ALJ set forth Plaintiff’s RFC as follows: 

After careful consideration of the entire record, the undersigned finds that the 

claimant has the residual functional capacity to perform sedentary work as defined 

in 20 CFR 416.967(a) except the claimant could stand and/or walk for 15 minutes 

at a time for a total of 2 hours out of an 8-hour workday. The claimant could sit 

for 6 hours out of an 8-hour workday. She could occasionally climb ramps and 

stairs, but would be precluded from climbing ladders, ropes, and scaffolds. She 

could occasionally stoop and kneel, but would be precluded from crouching and 

crawling. The claimant should avoid exposure to extreme cold and vibrations. 

She should avoid exposure to unprotected heights, moving mechanical parts, and 

operating a commercial vehicle. Further, the claimant could perform simple, 

routine tasks in a work environment that is not fast pace[d] or does not have unusual 

production demands—defined as goal based production where work is measured 

by the end result, not pace work. 

(Id. at 16.) 

 In assessing Plaintiff’s RFC, the ALJ considered the medical opinions in the record, 

 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

2. “Protein S deficiency is a disorder that causes abnormal blood clotting.” Protein S 

deficiency, National Center for Advancing Translational Sciences, Genetic and Rare Diseases 

Information Center (Mar. 4, 2013), https://rarediseases.info.nih.gov/diseases/4524/protein-sdeficiency/cases/21328#417. 

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including the opinions of Plaintiff’s treating physician, Dr. Sayegh. The ALJ assessed “some” 

weight to Dr. Sayegh’s opinions, explaining as follows: 

The undersigned has considered the September 2014 statement provided by Dr. 

Sayegh, evidenced at Exhibit 9F some weight. The statement noted the claimant 

was precluded from lifting heavy objects or objects more than 5-10 [ ] pounds. He 

assessed the claimant could not sit, bend, or stoop for long periods of time and 

would need to take 15 minute breaks every 1-2 hours. The undersigned affords 

some weight to the physician assessment. The undersigned finds the lifting and 

carrying limitations persuasive, as they are generally consistent with the medical 

evidence of record, supporting a reduced range of sedentary exertional level work, 

as discussed above. The undersigned affords some weight to the noted limitation 

on prolonged bending/stooping as the evidence demonstrating a combination of 

physical condition exacerbated by her obese body habitus warrants the above 

assessed postural and environmental limitations, specifically those on stooping, 

kneeling, crouching, crawling, and climbing. The undersigned affords some 

weight regarding the need for the claimant to take breaks every 15 minutes e [sic]. 

The undersigned [h]as determined the claimant could not engage in standing or 

walking for more than 15 minutes at a time, which is not inconsistent with the 

provided statement. Therefore, the undersigned provides Dr. Sayegh some 

weight. 

(R. at 25.) 

 Relying on the VE’s testimony, the ALJ found that even though Plaintiff is unable to 

perform her past work, she can perform jobs that exist in significant numbers in the national 

economy. (R. at 27-28.) He therefore concluded that Plaintiff was not disabled under the 

Social Security Act. (R. at 28-29.) 

III. STANDARD OF REVIEW 

 When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 

§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by 

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substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). 

Although the substantial evidence standard is deferential, it is not trivial. The Court 

must “‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 

270, 273 (6th Cir. 1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘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 Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 

IV. ANALYSIS 

 Plaintiff contends that the ALJ erred in weighing the opinion of her treating physician, 

Dr. Sayegh. More specifically, Plaintiff contends that the ALJ failed to provide good reasons 

for rejecting certain portions of Dr. Sayegh’s opinion regarding her ability to sit and need for 

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breaks. (Pl.’s Statement of Errors at 19-25, ECF No. 16.) The Commissioner counters that 

the ALJ “provided several good reasons for declining to give controlling weight to Dr. Sayegh’s 

opinion.” (Def.’s Mem. in Opp. at 12, ECF No. 22.) The Commissioner further asserts that 

even if the ALJ did not expressly provide good reasons for rejecting Dr. Sayegh’s opinions, he 

met the goal of the good reason rule by indirectly attacking them. (Id. at 15.) Finally, the 

Commissioner contends that, construed broadly, Dr. Sayegh’s opinions are consistent with the 

assessed RFC. (Id. at 15-16.) The undersigned disagrees with the Commissioner and finds 

Plaintiff’s sole contention of error to be well-taken. 

The ALJ must consider all medical opinions that he receives in evaluating a claimant’s 

case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as 

“statements from acceptable medical sources that reflect judgments about the nature and severity 

of your impairment(s), including your symptoms, diagnosis and prognosis.” 20 C.F.R. § 

416.927(a)(1). 

 The ALJ generally gives deference to the opinions of a treating source “since these 

sources are likely to be the medical professionals most able to provide a detailed, longitudinal 

picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical 

evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. § 

416.927(c)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported 

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 

the other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling 

weight.” 20 C.F.R. § 404.1527(c)(2). 

 If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ 

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must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling 

weight: 

[A]n ALJ must apply certain factors-namely, the length of the treatment 

relationship and the frequency of examination, the nature and extent of the 

treatment relationship, supportability of the opinion, consistency of the opinion 

with the record as a whole, and the specialization of the treating source-in 

determining what weight to give the opinion. 

Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of 

determination or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 

C.F.R. § 416.927(c)(2). Accordingly, the ALJ’s reasoning “must be 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.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 

543, 550 (6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals for 

the Sixth Circuit has stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants understand the 

disposition of their cases,” particularly in situations where a claimant knows that 

his physician has deemed him disabled and therefore “might be especially 

bewildered when told by an administrative bureaucracy that she is not, unless some 

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 

(2d Cir. 1999). The requirement also ensures that the ALJ applies the treating 

physician rule and permits meaningful review of the ALJ’s application of the rule. 

See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important 

when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v. 

Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

There is no requirement, however, that the ALJ “expressly” consider each of the Wilson factors 

within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 

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2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to 

explicitly address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical 

opinion evidence within the written decision). 

 Finally, the Commissioner reserves the power to decide certain issues, such as a 

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will 

consider opinions of treating physicians “on the nature and severity of your impairment(s),” 

opinions on issues reserved to the Commissioner are generally not entitled to special 

significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007). 

Dr. Sayegh, a pain management specialist, treated Plaintiff for at least nine months and 

saw her on ten different occasions before rendering his opinions. (R. at 551; R. at 408-21, 557-

62.) In his opinion, Dr. Sayegh diagnosed Plaintiff with the following conditions: lumbago, 

sciatica, sprain/strain, facet syndrome, HNP, degenerative disc disease, abdominal pain, 

cellulitis, protein S deficiency, varicose veins, pelvic vascular congestion, depression, sleep 

disturbance, and anxiety. (R. at 551.) Dr. Sayegh noted that, upon clinical examination of 

Plaintiff, he observed lumbar paraspinal muscle tenderness, trigger points, decreased sensation to 

the lateral aspect of her left lower extremity, and positive bilateral straight leg lift at 60 degrees. 

(Id.) He further referenced Plaintiff’s lumbar MRI from March 30, 2014, which revealed facet 

osteoarthropathy and slight focal central disc protrusion at L5-S1. (Id.; see also R. at 423.) 

Dr. Sayegh’s records further reveal findings of decreased sensation in the lateral aspect of 

Plaintiff’s left lower extremity and varicose veins. (R. at 408-21, 557-62.) In September 

2014, Dr. Sayegh opined that Plaintiff could not sit, bend, or stoop for long periods of time; must 

take 15-minute breaks every 1-2 hours; and could not lift more than 5-10 pounds. (R. at 552.) 

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As discussed above, the ALJ assigned “some” weight to treating physician Dr. Sayegh’s 

opinions. Because the ALJ declined to give controlling weight to Dr. Sayegh’s opinions, he 

was required to provide “good reasons” for assessing only “some” weight. As set forth above, 

the ALJ offered the following discussion of Dr. Sayegh’s opinions: 

The undersigned has considered the September 2014 statement provided by Dr. 

Sayegh, evidenced at Exhibit 9F some weight. The statement noted the claimant 

was precluded from lifting heavy objects or objects more than 5-10 [ ] pounds. He 

assessed the claimant could not sit, bend, or stoop for long periods of time and 

would need to take 15 minute breaks every 1-2 hours. The undersigned affords 

some weight to the physician assessment. The undersigned finds the lifting and 

carrying limitations persuasive, as they are generally consistent with the medical 

evidence of record, supporting a reduced range of sedentary exertional level work, 

as discussed above. The undersigned affords some weight to the noted limitation 

on prolonged bending/stooping as the evidence demonstrating a combination of 

physical condition exacerbated by her obese body habitus warrants the above 

assessed postural and environmental limitations, specifically those on stooping, 

kneeling, crouching, crawling, and climbing. The undersigned affords some 

weight regarding the need for the claimant to take breaks every 15 minutes e [sic]. 

The undersigned [h]as determined the claimant could not engage in standing or 

walking for more than 15 minutes at a time, which is not inconsistent with the 

provided statement. Therefore, the undersigned provides Dr. Sayegh some 

weight. 

(R. at 25.) 

The undersigned concludes that the ALJ failed to provide good reasons for rejecting Dr. 

Sayegh’s opinion that Plaintiff is unable to sit for long periods of time. Indeed, the ALJ failed 

to even discuss Dr. Sayegh’s opinion that Plaintiff is unable to sit for long periods of time. 

Rather, without any discussion regarding whether Plaintiff required limitation on the total 

amount or the length of time she could sit without a break, the ALJ concluded that Plaintiff 

“could sit for six hours out of an 8-hour workday.” (R. at 16 (emphasis added).) 

The undersigned concludes that the ALJ’s violation of the good reason rule was not 

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harmless error. The Wilson Court considered three possible scenarios that could lead the Court 

to a finding of harmless error. 378 F.3d at 547. First, the Court indicated that harmless error 

might occur “if a treating source’s opinion is so patently deficient that the Commissioner could 

not possibly credit it . . . .” Id. Second, the Court noted that if the ALJ’s decision was 

“consistent with the opinion, it may be irrelevant that the ALJ did not give weight to the treating 

physician’s opinion, and the failure to give reasons for not giving such weight is correspondingly 

irrelevant.” Id. Finally, Wilson considered the possibility of a scenario “where the 

Commissioner has met the goal of § 1527(d)(2)–the provision of the procedural safeguard of 

reasons–even though she has not complied with the terms of the regulation.” Id. Since 

Wilson, the Sixth Circuit has continued to conduct a harmless error analysis in cases in which the 

claimant asserts that the ALJ failed to comply with the good-reason requirement. See, e.g., 

Nelson v. Comm’r of Soc. Sec., 195 F. A’ppx 462, 472 (6th Cir. 2006) (finding that even though 

the ALJ failed to meet the letter of the good-reason requirement the ALJ met the goal by 

indirectly attacking the consistency of the medical opinions); Bowen v. Comm’r of Soc. Sec., 478 

F.3d 742, 749 (6th Cir. 2007) (finding that the facts did not satisfy potential harmless error 

justifications). 

The Commissioner’s assertion that Dr. Sayegh’s opinion that Plaintiff required “no 

sitting, bending, stooping for long periods of time,” (R. at 552), is too vague to be 

accommodated is belied by the ALJ’s discussion and crediting of Dr. Sayegh’s opinion that 

Plaintiff could not bend or stoop for prolonged periods, which he accommodated by limiting 

Plaintiff to only occasional stooping. (R. at 16, 25.); SSR 83-14 (defining “stooping” as 

“bending the body downward and forward by bending the spine at the waist” and “occasionally” 

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as from very little up to one-third of the time”); cf. Allen v. Comm’r of Soc. Sec., No. 1:13-cv171, 2014 WL 1093139, at *6 (N.D. Ohio Mar. 17, 2014) (“[T]he fact that the ALJ at least gave 

partial weight to Dr. Svete’s findings means that the ALJ’s failure to articulate a good reason for 

the weight given cannot be excused on the grounds that Dr. Svete’s opinion was patently 

deficient.”). Without explanation, however, the ALJ did not similarly limit Plaintiff to sitting 

only occasionally, instead concluding that she could sit for six hours per day. Moreover, in 

addition to offering his opinion about Plaintiff’s limitations, Dr. Sayegh discusses Plaintiff’s 

impairments, diagnoses, symptoms, medications, and diagnostic testing, and the record contains 

Dr. Sayegh’s treatment records. Finally, the record contains evidence reflecting that Plaintiff 

had several physical severe impairments that could impact her ability to sit for prolonged 

periods, including obesity, degenerative joint disease of her right knee, degenerative disc disease 

of her lumbar spine, and protein S deficiency, as well as varying abnormalities in her lower 

extremities, including venous reflux, severe valvular incompetence (chronic venous 

insufficiency), filling defects, calcification, edema, deep vein thrombosis, pain, tibial venous 

embolism, thrombosis, claudication, superficial thrombophlebitis, and phlebitis. (R. at 280-83, 

243, 248-57, 260-61, 267, 286-88, 293-94, 301.); See Perry v. Acting Comm’r of Soc. Sec., No. 

17-cv-13386, 2019 WL 759289, *5 (E.D. Mich. Jan. 23, 2019) (treating physician’s opinion not 

patently deficient where “at least some objective medical evidence appears to support [the 

opinion]”); Miller v. Berryhill, No. 3:16-cv-00094, 2017 WL 1021313, *9 (S.D. Ohio Mar. 16, 

2017) (finding an opinion was not patently deficient where “[t]he record . . . contains evidence 

consistent with [the] opinion”); Congrove v. Comm’r of Soc. Sec., No. 2:15-cv-2630, 2016 WL 

3097153, *5 (S.D. Ohio June 3, 2016) (“If treatment notes support the physician’s findings, an 

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opinion is not patently deficient”). Indeed, another of Plaintiff’s treating physicians, Dr. Jentes, 

also concluded that Plaintiff could not tolerate prolonged sitting and that she would need to 

change positions as needed, explaining that she has “limited vascular capacity of lower leg.” 

(R. at 665.) For these reasons, the undersigned cannot conclude that Dr. Sayegh’s opinion was 

so patently deficient that the ALJ’s failure to acknowledge and weigh it constitutes harmless 

error. 

Nor can the undersigned conclude that the ALJ’s error is harmless because the RFC 

assessed is consistent with Dr. Sayegh’s opinion. As noted above, ALJ accommodated Dr. 

Sayegh’s opinion that Plaintiff required “no sitting, bending, stooping for long periods of time,” 

in part by limiting her to only occasional stooping, but failed to consistently limit her to only 

occasional sitting, instead concluding, without explanation, that Plaintiff could sit for six hours 

per day. (R. at 552.) Perhaps recognizing this inconsistency, the Commissioner attempts to 

combine Dr. Sayegh’s opinion that Plaintiff required “no sitting, bending, stooping for long 

periods of time” with another of his opinions—that Plaintiff “must take 15 min breaks every 1-2 

hrs”—to argue that construing Dr. Sayegh’s opinions broadly, ALJ’s RFC is consistent with Dr. 

Sayegh’s opinion because sedentary work contemplates 15-min breaks at 2-hour intervals. (See

Comm’r Mem. in Opp. 15-16, ECF No. 22.) The undersigned acknowledges that individuals 

typically receive breaks every two hours. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 

730 (6th Cir. 2013) (citing SSR 96–9p, 61 Fed. Reg. 34478) (recognizing that an individual 

receives a morning break, a lunch period, and an afternoon break in approximately two-hour 

intervals). But such an argument fails for two reasons. First, Dr. Sayegh’s opinion that 

Plaintiff required regular breaks from all work activity is distinct and in addition to his more 

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specific opined limitation that Plaintiff could not sustain prolonged sitting, bending, or stooping. 

Even the ALJ acknowledged that this was a distinct limitation in that he both addressed and 

accommodated it separately to conclude that Plaintiff required limits on her standing and 

walking activities. Second, it assumes that the ALJ considered the opinions together and 

construed them broadly. As discussed above, there is no indication that the ALJ considered Dr. 

Sayegh’s opinion relating to sitting, and his discussion reveals that he actually construed Dr. 

Sayegh’s opinion that Plaintiff required breaks narrowly to conclude that she requires breaks 

every 15 minutes. (See R. at 25.) 

The undersigned also cannot say that the ALJ’s error was harmless because it met the 

goal of the good-reason requirement by indirectly attacking the consistency of Dr. Sayegh’s 

opinion that Plaintiff could not sit for a prolonged period. Nowhere in his opinion does the ALJ 

explain why he concluded that Plaintiff could sit for six hours in a work day. Notably, the ALJ 

likewise failed to explain why he rejected the opinion of treating physician Dr. Jentes that 

Plaintiff could not sit for more than 30 minutes and required the ability to change positions as 

needed. The Commissioner appears to argue that any error by the ALJ was harmless because 

the ALJ indirectly attacked opinions suggesting greater restrictions by assigning weight to the 

opinion of state-agency reviewing physician Dr. Perencevich. (Comm’r Mem. in Opp. 14, ECF 

No. 22.) This argument also fails, however, because the ALJ declined to adopt Dr. 

Perencevich’s opinion, instead assigning it only “some weight” on the grounds that the record 

showed that Plaintiff was more restricted than Dr. Perencevich opined and also because the ALJ 

agreed with and accommodated several of the very same opinions of Dr. Sayegh that Dr. 

Perencevich rejected. Because the undersigned cannot otherwise trace the ALJ’s path of 

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reasoning or discern what evidence the ALJ relied upon to reject the opinions of Drs. Sayegh and 

Jentes relating to Plaintiff’s ability to sustain prolonged sitting, remand is required. See Rogers, 

486 F.3d at 243 (explaining that one of the purposes of the good reason requirement is to ensure 

meaningful appellate review of the ALJ’s application of the treating physician rule); Stacey v. 

Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th Cir. 2011) (finding that “the ALJ’s decision 

still must say enough ‘to allow the appellate court to trace the path of his reasoning.’” (quoting 

Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995)). See also Nelson v. Comm’r of Soc. Sec., 195 

F. App’x 462, 472 (6th Cir. 2006) (noting that it is “rare” for the ALJ’s analysis to meet “the 

goal of the rule even if not meeting its letter”). 

Finally, the undersigned declines the Commissioner’s invitation to weigh the evidence to 

conclude that substantial evidence does not support further limitation on Plaintiff’s ability to sit. 

As the Sixth Circuit has recognized: 

A court cannot excuse the denial of a mandatory procedural protection simply 

because, as the Commissioner urges, there is sufficient evidence in the record for 

the ALJ to discount the treating source’s opinion, thus, a different outcome on 

remand is unlikely. A procedural error is not made harmless simply because [the 

aggrieved party] appears to have had little chance of success on the merits anyway. 

To hold otherwise, and to recognize substantial evidence as a defense to noncompliance with [20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2)], would afford 

the Commissioner the ability [to] violate the regulation with impunity and render 

the protections promised therein illusory. 

Wilson 378 F.3d at 546. 

 For these reasons, it is RECOMMENDED that Plaintiff’s contention of error be 

SUSTAINED. 

V. DISPOSITION 

Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to 

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16 

the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). The 

undersigned therefore RECOMMENDS that the Court REVERSE the Commissioner of Social 

Security’s non-disability finding and REMAND this case to the Commissioner and the ALJ 

under Sentence Four of § 405(g) for further consideration consistent with this Report and 

Recommendation. 

VI. PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, 

or modify, in whole or in part, the findings or recommendations made herein, may receive 

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 

U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

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 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE 

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