UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

GENEVA RUSSELL,

Plaintiff,

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:18-cv-00264

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

Plaintiff Geneva Russell has filed a Statement of Errors in this social security case 

challenging Administrative Law Judge Deborah F. Sanders’ determination that she is not 

under a disability and, consequently, not eligible to receive Supplemental Security 

Income. (Doc. #9). The Commissioner acknowledges that ALJ Sanders’ decision 

contains reversible error, particularly as to the evaluation of two treating medical sources’ 

opinions.

The parties presently disagree—not about the need for a remand under sentence 

four of 42 U.S.C. § 405(g) but—about whether the case should be remanded for payment 

of benefits or for further administrative proceedings. Plaintiff contends that the case 

should be remanded for payment of benefits because her application for benefits has been 

pending for more than 11 years (her alleged disability onset date is May 15, 2008) and 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
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because the issues involved have been extensively briefed over the years and remanded 

multiple times for further proceedings. She further contends that the administrative 

“record is complete, so all essential factual issues have been resolved and the record 

adequately establishes [her] entitlement to benefits.” (Doc. #11, PageID #2202). In 

these circumstances, Plaintiff argues, there is no just reason to further delay this matter 

for another round of administrative proceedings.

The Commissioner argues that a remand for further proceedings is warranted 

because the record is incomplete and not all essential factual issues have been resolved. 

The remaining issues exist, according to the Commissioner, because the ALJ misapplied 

the treating physician rule when weighing the opinions provided by Plaintiff’s treating 

medical sources, Drs. Knight and Schear.

The Commissioner’s argument lacks merit because it forecloses the possibility that 

in some cases when an ALJ has misapplied the treating physician rule, a remand for 

benefits may be warranted. If, as the Commissioner’s argument implies, an ALJ’s 

misapplication of the treating physician rule always means that unresolved issues remain, 

this error would never require a remand for benefits regardless of the content and quality 

of medical evidence in the administrative record. The proper focus for determining 

whether benefits are due is on whether the administrative record contains overwhelming 

evidence of disability or whether the evidence is strong while contrary evidence is 

lacking in substance. Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th 

Cir. 1994); see Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).

This, moreover, is an unusual case considering that Plaintiff’s application for 
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benefits is more than 11 years old, and its procedural history is entangled with error and 

repetition. In 2011, an ALJ (ALJ McNichols) issued a flawed non-disability decision

after holding two hearings. (Doc. #6, PageID #s 907-53, 958-71). On appeal, this Court

found error in the ALJ’s decision and remanded for further administrative proceedings. 

(Doc. #6, PageID #s 987-1000). On remand, a second ALJ (ALJ Motta) held a third

administrative hearing and issued a second non-disability decision. Id. at 835-56, 866-

906. This led to another appeal to this Court during which the parties’ agreed to a 

remand. On remand, the Appeals Council issued detailed instructions to the ALJ 

regarding the issues to address on remand. Id. at 1755-59. A third ALJ—this time ALJ

Sanders—held another administrative hearing then issued the flawed non-disability 

decision challenged in the present case. Id. at 1705-47, 1764-75. In these 

circumstances—especially the fact that a remand for further action would result in a 

fourth round of administrative proceedings, perhaps a fifth administrative hearing, and 

perhaps a fourth ALJ’s decision—and in light of the strong evidence of record (mainly 

the treating medical sources’ opinions) while contrary evidence is lacking, there is no just 

reason to further delay this matter for even more administrative procedures. See Gentry 

v. Comm'r of Soc. Sec., 741 F.3d 708, 730 (6th Cir. 2014) (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, 
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let’s play again’ system of disability benefits adjudication.” (other 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.”).

Accordingly, a reversal of the ALJ’s decision and a judicial award of benefits are 

warranted.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s Unilateral Motion to Reverse, Enter Judgment, and 

Remand For Further Proceedings (Doc. #10) be GRANTED in part, and the 

case be remanded pursuant to sentence four of 42 U.S.C. §405(g);

2. The Commissioner’s Unilateral Motion to Reverse, Enter Judgment, and 

Remand For Further Proceedings. (Doc. #10) be DENIED in remaining 

part, and the case be remanded for payment of Supplemental Security 

Income based on Plaintiff’s disability onset date of May 15, 2008; and,

3. The case be terminated on the docket of this Court.

June 18, 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).