1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

RONALD E. PORTER, Case No. 1:18-cv-281 

Plaintiff, Barrett, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 Plaintiff Ronald E. Porter filed this Social Security appeal in order to challenge the 

Defendant’s findings that he is not disabled. See 42 U.S.C. §405(g). Proceeding through 

counsel, Plaintiff presents five claims of error, all of which the Defendant disputes. 

Plaintiff has also filed a motion for a sentence six remand which Defendant has opposed. 

For the reasons explained below, I conclude that the ALJ’s finding of non-disability should 

be REVERSED and REMANDED because it is not supported by substantial evidence in 

the administrative record. 

I. Summary of Administrative Record 

 In December 2014, Plaintiff filed for Supplemental Security Income alleging a 

disability onset date of January 27, 2012. (Tr. 55). After Plaintiff’s claims were denied 

initially and upon reconsideration, he requested a hearing de novo before an 

Administrative Law Judge (“ALJ”). On January 25, 2017, ALJ Renita Bivins held a hearing 

at which Plaintiff appeared with counsel. The ALJ heard testimony from Plaintiff and an 

impartial vocational expert. (Tr. 55). At this hearing, Plaintiff amended his alleged onset 

date to January 22, 2015, explaining that there was no medical evidence prior to the 
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application. However, Plaintiff is eligible for benefits beginning at the protective filing date. 

After discussing the proposed amendment with Plaintiff’s counsel, the ALJ considered the 

application beginning at the December 2014 protective filing date, avoiding the possibility 

of an adjudicated five-week period. (Tr. 55). In October 2017, the ALJ determined that 

Plaintiff was not under a disability as defined by the Social Security Act. (Tr. 55-67). The 

Appeals Council denied Plaintiff’s request for review. (Tr. 1-3). Plaintiff filed an appeal to 

this Court on April 24, 2018, seeking judicial review of the denial of his application for 

benefits. 

 Plaintiff was 47-years-old on the date the application was filed, and has at least a 

high school diploma. (Tr. 66). Plaintiff lives in a house with his wife and son, and receives 

visits from his family. (Tr. 58-59). Plaintiff’s relevant past work experience included work 

as a route driver helper (unskilled work ordinarily performed at medium exertion level) 

and as a day laborer (unskilled work typically performed at heavy exertional level but 

actually performed at sedentary level by Plaintiff). (Tr. 66). 

 Based upon the record and testimony presented at the hearing, the ALJ found 

that Plaintiff had the the following severe impairments: “spinal disorder, polyneuropathy, 

affective disorder, and anxiety.” (Tr. 57). Plaintiff reports no problems dressing himself or 

showering, and can prepare simple meals. However, Plaintiff does not perform other 

duties like grocery shopping since he lost his license due to a DUI conviction ten years 

prior. (Tr. 58). The ALJ concluded that none of Plaintiff’s impairments alone or in 

combination met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subp. 

P, Appendix 1. Id. The ALJ determined that Plaintiff retains the following residual 

functional capacity (“RFC”) to perform medium work with the following limitations: 
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[The claimant] is further limited to lifting and carrying up to 50 pounds 

occasionally and 25 pounds frequently; standing and/or walking for 6 hours 

per 8-hour workday; sitting for 6 hours per 8-hour workday, with normal 

breaks; frequently climbing ramps, stairs, ladders, ropes, or scaffolds; 

frequently pushing, pulling, or reaching in all directions with the left upper 

extremity; performing unskilled work with no strict time for production 

requirements and with only a few changes in routine; working in a nonpublic 

setting with only superficial, intermittent interaction with public, coworkers, 

and supervisors; and performing work that permits him to be off task 4% of 

the work period. 

(Tr. 60). Based upon the record as a whole including testimony from the vocational 

expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ 

concluded that Plaintiff is unable to perform his past relevant work. (Tr. 66). Nonetheless, 

there are jobs that exist in significant numbers in the national economy that he can 

perform, including such jobs as sweeper/cleaner, hand packager, and lab equipment 

cleaner. (Tr. 67). Accordingly, the ALJ determined that Plaintiff is not under disability, as 

defined in the Social Security Regulations, and is not entitled to DIB. Id. 

 The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s 

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff 

argues that the ALJ erred by: 1) committing material inconsistencies within the record; 2) 

incorrectly weighing the opinions of doctors and psychologists; 3) denying Plaintiff’s 

subjective complaints based on testimony outside the record; 4) abusing her discretion in 

refusing Plaintiff’s requests to update his medical records; and 5) incorrectly determining 

Plaintiff’s vocational abilities. Upon close analysis, I conclude that the ALJ erred in 

evaluating the findings of Plaintiff’s treating physician, thereby requiring remand. 
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 II. Analysis 

 A. Judicial Standard of Review 

 To be eligible for SSI or DIB a claimant must be under a “disability” within the 

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition 

of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City 

of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a 

“disability” includes only physical or mental impairments that are both “medically 

determinable” and severe enough to prevent the applicant from (1) performing his or her 

past job and (2) engaging in “substantial gainful activity” that is available in the regional 

or national economies. See Bowen, 476 U.S. at 469-70 (1986). 

 When a court is asked to review the Commissioner’s denial of benefits, the court’s 

first inquiry is to determine whether the ALJ’s non-disability finding is supported by 

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation 

omitted). In conducting this review, the court should consider the record as a whole. 

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports 

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial 

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained: 

The Secretary’s findings are not subject to reversal merely because 

substantial evidence exists in the record to support a different conclusion . 

. . . The substantial evidence standard presupposes that there is a ‘zone of 

choice’ within which the Secretary may proceed without interference from 

the courts. If the Secretary’s decision is supported by substantial evidence, 

a reviewing court must affirm. 
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Id. (citations omitted). 

 In considering an application for disability benefits, the Social Security Agency is 

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if 

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner 

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the 

Commissioner analyzes whether the claimant’s impairments, singly or in combination, 

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner 

determines whether or not the claimant can still perform his or her past relevant work; 

and finally, at Step 5, if it is established that claimant can no longer perform his or her 

past relevant work, the burden of proof shifts to the agency to determine whether a 

significant number of other jobs which the claimant can perform exist in the national 

economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 

20 C.F.R. §§404.1520, 416.920. 

 A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she 

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits 

must present sufficient evidence to show that, during the relevant time period, he or she 

suffered impairment, or combination of impairments, expected to last at least twelve 

months, that left him or her unable to perform any job in the national economy. 42 U.S.C. 

§ 423(d)(1)(A). 
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 B. The ALJ’s decision is supported by substantial evidence

 1. Evaluation of opinion evidence

 Plaintiff argues that the ALJ erred in failing to give controlling weight to the findings 

of Dr. Owens, Plaintiff’s treating physician and Dr. Baily. 

 The record contains the following opinion evidence: 

 In March 2015 and September 2015, state agency physicians Gerald Klyop, M.D., 

and Ermias Seleshi, M.D., reviewed the entire medical record and Plaintiff’s statements 

about the severity of his symptoms. (Tr. 133-36, 148-52). Dr. Klyop opined that Plaintiff 

retained the ability to lift and carry up to 50 pounds occasionally and 25 pounds frequently 

and sit and stand or walk up to 6 hours each in a normal workday. (Tr. 134). He also 

opined that Plaintiff could frequently climb ramps and stairs, stoop and crouch and 

occasionally climb ladders, ropes and scaffolds, kneel and crawl. (Tr. 134). He opined 

that Plaintiff was limited to frequent lifting overhead. (Tr. 135). Dr. Klyop’s conclusions 

were based on documented clinical examination findings that included normal range of 

motion and strength and x-rays which showed only mild degenerative changes in the 

cervical and lumbar spine. (Tr. 136). 

 Licensed Clinical Psychologist Jessica Twehues, Psy.D., examined Plaintiff at the 

request of the state agency in May 2015. (Tr. 306-12). Dr. Twehues opined that Plaintiff 

was likely to have difficulties sustaining focus for prolonged periods of time, he was likely 

to be prone to high rates of absenteeism from work due to panic disorder, and his work 

pace was expected to be mildly slowed due to his depressed mood. (Tr. 311). She also 

opined that he was likely to experience increased panic attacks in response to workplace 

pressures, especially high work demands. (Tr. 311). She opined that increased stress 
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and pressure would likely increase his symptoms and lead to more problems with 

concentration and work pace. (Tr. 311). 

 In June 2015 and October 2015, state agency psychologists, Patricia Kirwin, 

Ph.D., and William Bolz, M.D., reviewed the medical evidence, including Dr. Twehues’s 

report, and noted that although Dr. Twehues diagnosed ADHD based on his restlessness 

and reported symptoms, there was no longitudinal history of this disorder in the records. 

(Tr. 131-36, 150-52). Instead, she noted that Plaintiff’s symptoms were more consistent 

with anxiety. (Tr. 133). 

 In September 2015, Jennifer Wischer Bailey, M.D., examined Plaintiff at the 

request of the state agency. (Tr. 330-33). Dr. Bailey administered manual muscle testing, 

which showed normal strength and range of motion, with the exception of slightly 

diminished range of motion in the cervical spine. (Tr. 326-29, 331-32). Plaintiff showed 

no signs of muscle atrophy, but pinprick and light touch were diminished in his left upper 

extremity and from his mid-thighs to his toes. (Tr. 331). Function was well preserved in 

the left hand and arm. (Tr. 332). Dr. Bailey opined that Plaintiff was capable of performing 

a mild to moderate amount of sitting, ambulating, standing, bending, kneeling, pushing, 

pulling, lifting and carrying heavy objects. (Tr. 332-33). She also opined that Plaintiff had 

no difficulty reaching, grasping, and handling objects (Tr. 333). 

 In January 2017, Heather Owens, M.D., Plaintiff’s treating physician, opined that 

Plaintiff was unable to work from September 2014 through April 13, 2018. (Tr. 393). 

 In June 2017, physical therapist Karen Scholl completed a functional capacity 

evaluation for Dr. Owens. (Tr. 395-97). According to Ms. Scholl’s report, Plaintiff could 

independently prepare meals, wash dishes, do laundry, do housekeeping and use a 
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computer. (Tr. 396). She limited Plaintiff to overhead lifting up to 2 1⁄2 pounds 

occasionally, carrying up to 12 pounds rarely. She further opined that Plaintiff should 

avoid bending, kneeling, and crawling and should limit lifting 15 pounds from floor to waist 

infrequently. (Tr. 395). 

 Also, in June 2017, Dr. Owens completed a statement at the request the Social 

Security Administration and indicated that she had seen Plaintiff every 1-6 months for 

more than 2 years. (Tr. 388). She opined that Plaintiff could not walk the length of a city 

block without the need to rest due to pain, that he could not walk on uneven terrain and 

that he could not climb steps without the use of a handrail. (Tr. 389). Dr. Owens further 

opined that Plaintiff had problems with balancing, stooping, crouching, and bending and 

that he could not sit more than 4 hours total nor stand more than 3 hours total in an 8-

hour workday. (Tr. 389-90). She noted that Plaintiff did not need an assistive device to 

walk. (Tr. 390). She stated he could not lift 20 pounds and could only “rarely” lift 15 pounds 

or less. (Tr. 390). She stated he could only rarely carry 10 pounds or less. (Tr. 390). She 

also opined that Plaintiff could not push or pull arm or leg controls while sitting and could 

not climb stairs, ladders, scaffolds, ropes or ramps. (Tr. 391). Dr. Owens opined that 

Plaintiff would be off task more than 30% of the workday, and would be absent more than 

5 days per month due to his medical impairments. (Tr. 391). 

 In formulating Plaintiff’s RFC, the ALJ assigned little weight to the opinions of Dr. 

Owens. In so concluding, the ALJ found that Dr. Owens’ opinions are not supported by 

her own treatment notes and are inconsistent with overall medical evidence of record. In 

this regard, the ALJ noted that Dr. Owen’s treatment notes from June 2015 conclude that 

Plaintiff’s neuropathy was stable. (Tr. 64). The ALJ further noted that Dr. Owens’ 
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November 2015 examination found Plaintiff’s neck and straight let raising to be normal. 

The ALJ also determined that Dr. Owens’ opinion is “diminished by the fact that she based 

her opinion on a functional capacity evaluation of a one-time examination,” which is not 

support by the overall medical record and no diagnostic testing to support such extreme 

limitations. Id. Additionally, the ALJ found that Dr. Owens’ opinion is not entirely 

consistent with Plaintiff’s testimony that, since his alleged onset date, “he watches 

television programming such as action and comedy and indicated his hobby is watching 

television throughout the day, which suggest ability to sit longer than opined.” (Tr. 64). 

Plaintiff contends that ALJ’s decision is not substantially supported in this regard. The 

undersigned agrees. 

 In evaluating the opinion evidence, the ALJ must consider the factors set forth in 

20 C.F.R. § 404.1527(d)(2). These factors include: “(1) the length of the treatment 

relationship and the frequency of the examination; (2) the nature and extent of the 

treatment relationship; (3) the supportability of the opinion, with respect to relevant 

evidence such as medical signs and laboratory findings; (4) the consistency of the opinion 

with the record as a whole; (5) the specialization of the physician rendering the opinion; 

and (6) any other factor raised by the applicant.” Meece v. Barnhart, 192 Fed. Appx. 456, 

461 (6th Cir. 2006) (citing 20 C.F.R. §§ 404.1527(d)(2)-(d)(6)). 

 It is well established that the “[t]he ALJ ‘must’ give a treating source opinion 

controlling weight if the treating source opinion is ‘well-supported by medically acceptable 

clinical and laboratory diagnostic techniques’ and is ‘not inconsistent with the other 

substantial evidence in [the] case record.” Blakley v. Commissioner of Social Sec., 581 

F.3d 399, 406 (6th Cir. 2009) (quoting Wilson v. Commissioner, 378 F.3d 541, 544 (6th 
10

Cir. 2004)). A finding by the ALJ that a treating physician's opinion is not consistent with 

the other substantial evidence in the case record “means only that the opinion is not 

entitled to ‘controlling weight,’ not that the opinion should be rejected.” Soc. Sec. Rul. 96–

2p, 1996 WL 374188, at *4 (emphasis added).” “Treating source medical opinions are still 

entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. 

§ 404.1527 and 416.927.” Blakley, 581 F.3d at 408. These factors include the length, 

nature and extent of the treatment relationship and the frequency of examination. 20 

C.F.R. § 404.1527(d)(2)(i)(ii); 416.927(d)(2)(i)(ii); Wilson, 378 F.3d at 544. In addition, the 

ALJ must consider the medical specialty of the source, how well-supported by evidence 

the opinion is, how consistent the opinion is with the record as a whole, and other factors 

which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(d)(3)-(6), 

416.927(d)(3)-(6); Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004). Thus, the 

treating physician rule “requires the ALJ to generally give greater deference to the 

opinions of treating physicians than to the opinions of non-treating physicians.” See 

Blakley v. Com'f Social Security, 581 F.3d 399, 406 (6th Cir. 2009). 

 When the treating physician's opinion is not given controlling weight, the ALJ must 

provide “good reasons” for doing so. Id. Good reasons “must be supported by the 

evidence in the case record, and 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.” Blakley, 581 F.3d at 406-407; see also Soc. Sec. 

Rul. 96–2p. An ALJ's failure to provide an adequate explanation for according less than 

controlling weight to a treating source may only be excused if the error is harmless or de 

minimis, such as where “a treating source's opinion is so patently deficient that the 
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Commissioner could not possibly credit it.” Blakley, 581 F.3d at 409 (quoting Wilson, 378 

F.3d at 547). 

 Here, the ALJ’s articulated reasons for rejecting Dr. Owens’ opinions do not 

constitute “good reasons” for rejecting all of her findings. As noted above, the ALJ found 

Dr. Owens’ opinions to be inconsistent with her treatment notes and the overall record 

based, in part, on two instances in which Dr. Owens’ indicated that Plaintiff’s neuropathy 

was stable and his neck and straight leg raising was normal. In so concluding, the ALJ 

overlooked or ignored portions of the record which were consistent with the opinions of 

Dr. Owens, while selecting portions of the record supporting his non-disability decision. 

This type of selective review cannot support a conclusion that the ALJ's decision was 

supported by substantial evidence. See Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 

2004). Carlisle v. Barnhart, No. 3:05CV0238, 2008 WL 420032, at *2 (S.D.Ohio Feb.14, 

2008) (ALJ selectively considered medical evidence when evaluating treating physicians' 

opinions and substituted his own lay opinion). Notably, the record indicates diminished 

pinprick in the legs, peripheral neuropathy, degenerative disc disease and radiculopathy. 

Dr. Owens’ opinion was also consistent with the findings of Ms. Scholl and Dr. Bailey. As 

noted above, Ms. Scholl found that numbness and unsteady gait and limited Plaintiff to 

overhead lifting up to 21⁄2 pounds occasionally, carrying up to 12 pounds rarely. She 

further opined that Plaintiff should avoid bending, kneeling, and crawling and should limit 

lifting 15 pounds from floor to waist infrequently. (Tr. 395). Similarly, Dr. Bailey noted 

pinprick and touch are diminished over left upper extremity and mid thigs to toes, mild 

kyphosis of the upper back, and neck pain with left-sided radiculopathy. Dr. Bailey opined 

that Plaintiff was capable of performing a mild to moderate amount of sitting, ambulating, 
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standing, bending, kneeling, pushing, pulling, lifting and carrying heavy objects (Tr. 332-

33). 

 Plaintiff further asserts that that the ALJ erred in rejecting Dr. Owens’ opinion, 

based at least in part on Plaintiff’s ability to watch television. As detailed above, the ALJ 

found that Dr. Owens’ opinion is not entirely consistent with Plaintiff’s testimony that, since 

his alleged onset date, “he watches television programming such as action and comedy 

and indicated his hobby is watching television throughout the day, which suggest ability 

to sit longer than opined.” (Tr. 64). 

 The undersigned does not dispute that it is the ALJ's prerogative to resolve 

conflicts and weigh the evidence of record. However, it appears in making this 

determination, the ALJ, in part, impermissibly acted as her own medical expert. See 

Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir.1985); Kent v. Schweiker, 710 F.2d 110, 

115 (3d Cir.1983); Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975). While an ALJ 

is free to resolve issues of credibility as to lay testimony, or to choose between properly 

submitted medical opinions, she is not permitted to make his own evaluations of the 

medical findings. As recognized by this Court, “[t]he ALJ must not substitute his own 

judgment for a doctor's conclusion without relying on other medical evidence or authority 

in the record.” Mason v. Comm'r of Soc. Sec., No. 1:07–cv–51, 2008 WL 1733181, at *13 

(S.D.Ohio April 14, 2008) (Beckwith, J.; Hogan, M.J.) (citing Hall v. Celebrezze, 314 F.2d 

686, 690 (6th Cir.1963); Clifford v. Apfel, 22.7 F.3d 863, 870 (7th Cir.2000); Ferguson v. 

Schweiker, 765 F.2d 31, 37 (3rd Cir.1985); Sigler v. Sec'y of H.H.S., 892 F.Supp. 183, 

187–88 (E.D.Mich.1995)). See also Rosa v. Callahan, 168 F.3d 72, 78–79 (2nd Cir.1999) 

(“[T]he ALJ cannot arbitrarily substitute his own opinion for competent medical opinion.”); 
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Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996) (“ALJs must not succumb to the 

temptation to play doctor and make their own independent medical findings”). 

 It is well established that claimant’s ability to activities of daily living, including 

watching television does not translate to an ability to perform substantial gainful activity. 

Rogers v. Comm’r of Social Security, 486 F.3d 234, 248 (6th Cir. 2007); Barker-Bair v. 

Comm’r of Soc. Sec., No. 1:06-cv-00696, 2008 U.S. Dist. LEXIS 27011, at * 11 (S.D. Ohio 

Apr. 3, 2008) (citing Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004)). The 

undersigned agrees that plaintiff's ability to engage in daily activities does not establish 

ipso facto that he is able to engage in gainful activity 40 hours per week. Bramel v. Comm'r 

of Soc. Sec., No. 1:13CV281, 2014 WL 4162543, at *9 (S.D. Ohio Aug. 20, 2014). 

 Additionally, it appears that the ALJ applied a more rigorous scrutiny to Dr. Owens’ 

opinions than to those of the nonexamining opinions. The Sixth Circuit has found that this 

is precisely the inverse of the analysis that the regulation requires. Gayheart v. Comm'r 

of Soc. Sec., 710 F.3d 365, 379 (6th Cir. 2013), reh'g denied (May 2, 2013). See also 20 

C.F.R. § 404.1527(c); Soc. Sec. Rul. No. 96–6p, 1996 WL 374180, at *2 (Soc. Sec. 

Admin. July 2, 1996). As such, the ALJ's decision indicates that his assessment of the 

opinion evidence failed to abide by the Commissioner's regulations and therefore calls 

into question the ALJ's analysis. See Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) 

(“An ALJ's failure to follow agency rules and regulations denotes a lack of substantial 

evidence.” (internal quotation marks omitted)). 

 Based on the foregoing, the reasons given by the ALJ for the weight assigned to 

Dr. Owens are not supported by the record; and therefore, fail to meet the requirement 
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that the ALJ “give good reasons” for not giving weight to a treating physician. See Wilson,

378 F.3d at 545. As such, this matter should be remanded for further fact-finding. 

C. Sentence Six Remand

 Also before the Court is Plaintiff’s motion for a sentence six remand to allow the 

Commissioner to consider additional records from Bethel Family Practice for the period 

from January 2017 to September 2017. (Tr. 7- 51, 213-215). 

 Pursuant to sentence six, a court can remand for consideration of new evidence 

only if the plaintiff establishes that the evidence is both new, in that it was “not in existence 

or available to the claimant at the time of the administrative proceeding” and “material,” 

meaning there is “a reasonable probability that the Secretary would have reached a 

difference disposition.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir.2001) (citations 

omitted); see also Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 483 (6th Cir.2006). The 

plaintiff must also establish good cause for his failure to present the evidence to the ALJ. 

See Bass v. McMahon, 499 F.3d 506 (6th Cir.2007); Brainard v. Sec'y of Health & Human 

Servs., 889 F.2d 679, 681 (6th Cir.1989). “‘Good cause’ is not established solely because 

the new evidence was not generated until after the ALJ's decision. The Sixth Circuit has 

taken a ‘harder line.’” Saunders v. Comm'r of Soc. Sec., 2010 WL 1132286 at *3 

(W.D.Mich. March 3, 2010) (quoting Oliver v. Sec. of Health & Human Servs., 804 F.2d 

964, 966 (6th Cir.1986) (additional citations omitted). 

 Here, Plaintiff contends that the new evidence is both new and material and shows 

the “longitudinal” record of treatment between 2015 and October 2017 that the ALJ 

complained was missing from the record. Plaintiff further asserts the records should be 

considered because the ALJ refused to leave the record open to submit additional 
15

evidence. The Commission, however, contends that Plaintiff has not demonstrated good 

cause for failing to proffer these records to the ALJ before she issued her decision. 

Notably, at the administrative hearing, the ALJ specifically stated that she would assume 

that there was “no new material or outstanding evidence to be considered,” neither 

Plaintiff nor her counsel objected (Tr. 75). 

 In any event, the Sixth Circuit has held that when an ALJ commits an error that 

results in a sentence four remand, the ALJ can consider additional evidence, even though 

the plaintiff has not otherwise met the requirements for a sentence six remand. Faucher 

v. Sec. of Health and Human Servs., 17 F.3d 171, 175 (6th Cir.1994). Accordingly, 

because remand is warranted to cure the errors as outlined above, the ALJ should also 

be instructed to consider the additional evidence on remand. 

 III. Conclusion and Recommendation 

 This matter should be remanded pursuant to Sentence Four of § 405(g) for further 

proceedings consistent with this Report and Recommendation. A sentence four remand 

under 42 U.S.C. § 405(g) provides the required relief in cases where there is insufficient 

evidence in the record to support the Commissioner's conclusions and further fact-finding 

is necessary. See Faucher v. Secretary of Health and Human Servs., 17 F.3d 171, 174 

(6th Cir.1994) (citations omitted). In a sentence four remand, the Court makes a final 

judgment on the Commissioner's decision and “may order the Secretary to consider 

additional evidence on remand to remedy a defect in the original proceedings, a defect 

which caused the Secretary's misapplication of the regulations in the first place.” Faucher, 

17 F.3d at 175. All essential factual issues have not been resolved in this matter, nor does 
16

the current record adequately establish Plaintiff's entitlement to benefits as of her alleged 

onset date. Faucher, 17 F.3d at 176. 

 For the reasons explained herein, IT IS RECOMMENDED THAT: the decision of 

the Commissioner to deny Plaintiff DIB benefits be REVERSED and this matter be 

REMANDED under sentence four of 42 U.S.C. § 405(g) consistent with this Report and 

Recommendation. IT IS FURTHER RECOMMENDED THAT Plaintiff’s motion for a 

sentence six remand (Doc. 8) be DENIED as MOOT consistent with the above remand 

recommendation. As no further matters remain pending for the Court's review, this case 

be CLOSED. 

 

 

 s/Stephanie K. Bowman 

Stephanie K. Bowman 

 United States Magistrate Judge 

 
17

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

RONALD E. PORTER, Case No. 1:18-cv-281 

Plaintiff, Barrett, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

NOTICE 

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

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. 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 (6th Cir. 1981).