UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

AARON M. STONEROCK,

Plaintiff, 

vs.

COMMSSIONER OF SOCIAL 

SECURTY ADMINISTRATION,

Defendant.

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Case No. 3:18-cv-00296

District Judge Thomas M. Rose

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

The Social Security Administration provides Disability Insurance Benefits to 

individuals who are under a disability, among other eligibility requirements. A disability in 

this context refers to “any medically determinable physical or mental impairment” that 

precludes an applicant from engaging in “substantial gainful activity.” 42 U.S.C. § 

423(d)(1)(A); see Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).

Plaintiff Aaron M. Stonerock, applied for Disability Insurance Benefits in November

2014, asserting that as of July 29, 2014, he could no longer work due to prolonged posttraumatic stress disorder (PTSD) and depression. Plaintiff’s application and evidence 

reached Administrative Law Judge (ALJ) Gregory G. Kenyon who conducted a hearing 

during which Plaintiff testified. Shortly thereafter, ALJ Kenyon concluded that Plaintiff 

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

was not eligible for benefits because he was not under a “disability” as defined in the Social

Security Act.

Plaintiff brings this case challenging ALJ Kenyon’s decision. He seeks a remand to 

the Social Security Administration for payment of disability insurance benefits or, 

alternatively, for further proceedings. The Commissioner seeks an Order affirming ALJ 

Kenyon’s non-disability decision.

II. Background

A. Plaintiff

Plaintiff was a “younger” person (thirty-seven years old) on his asserted disability 

onset date. 20 C.F.R. §404.1563(c). Before he applied for benefits, he worked as a 

hardware salesperson and a shipping clerk.

During his administrative hearing, Plaintiff testified that he completed the eleventh 

grade in high school. (Doc. #5, PageID #128). He did not graduate from high school due to 

anxiety and agoraphobia. He stated, “I was afraid of being around people, essentially.” Id.

Plaintiff testified that, his health problems included panic attacks three to five times 

per week involving shortness of breath, rapid heartbeats, crying fits, and flashbacks to 

traumatic events. Id. at 130. He described his panic attacks as “a fight or flight situation

and I shut down or remove myself from whatever activity I was trying to do.” Id. His panic 

attacks can be brought on by flashbacks to traumatic events he endured between ages ten 

and twelve. Many years later (in 2012), his wife was diagnosed with cancer and this “kind 
3

of sent [him] spiraling back through that...,” meaning his childhood trauma. Id. at 130-31.

He explained:

When I was younger I suffered a lot of abuse from a stepfather, and it gave 

me a fear, mostly, of males. My father left when I was two years old and I 

was raised by my grandmother and my sister while my mother worked most 

of the time. So, I had a stepfather that would tell me that I was raised by 

women and that I wasn’t a man and that would beat me and try to force me 

to do things, hunting and things like that, that I was unfamiliar with. And 

when I would disappoint him, it was very much a torture situation.

Id. at 141. Being around adult men is especially difficult. He said, “it still feels like I’m the 

12-year-old kid that I was so the people that are my friends feel so much older than me, it’s 

intimidating.” Id. at 132-33. 

Plaintiff also has a history of depression. His symptoms include has crying spells 

several times a week, usually at night, and he sometimes wakes up crying. Id. at 133. He 

sleeps only four hours at a time during the night. Id. at 144. He has difficulty 

concentrating. For example, after he watches a television program for thirty minutes, he

needs to restart the program in order to absorb the information because he “will kind of 

wander off.” Id. at 133.

Plaintiff told the ALJ that when he is home alone, he sometimes experiences 

paranoia. If a condominium maintenance person knocks on his door, he will sometimes 

lock himself in his room because he gets scared that he will have to let them in. Id. at 145. 

He has constant fear and nightmares about people trying to break into his home. This 

causes him to wake up “virtually paralyzed” and he tries to scream to himself to move until 

he is able to get out of bed. He noted, “I’m conscious but I’m stuck in bed, unable to 
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move.” Id. at 145.

Plaintiff testified that he had problems with concentration at his past job. During the 

last year of his employment, he would forget to do things and was written up for it. Id. at 

133-34. 

He also has suicidal thoughts almost every night before going to sleep and upon 

waking up in the morning. He revealed, “I have a wife and family that are very loving, and 

it prevents me from acting out on any of them [his suicidal thoughts].” Id. at 134. 

Depression saps his energy level. He illustrated this, saying, “My energy level is extremely 

low, I’ve disengaged with ... my friends, even simple things that I used to do like online 

video gaming, we would use like chat servers where you could talk to each other while you 

were playing the game and I no longer play those games with them anymore because I 

cannot interact with people that used to be my friends.” Id. Social anxiety also prevents 

him from reported gathering with his friends or do things with his wife, like taking her out 

to dinner or concerts. Id. at 131. He very rarely leaves home. He goes to doctor 

appointments once per month. Id. Plaintiff testified that he has a lot of anxiety when he is

in unfamiliar places. He has trouble focusing and cannot pay attention to conversations. Id.

at 132.

B. Adelia Barone, M.S., M.A., LPCC

Plaintiff first saw Ms. Barone for counseling in late July 2014. (Doc. #5, PageID #s 

449-50). Ms. Barone described his presenting problem: “Client is at breaking point 
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emotionally. Cannot work. He sits and stares for hours, does not want to engage.” Id. at 

450. Plaintiff reported distress, anxious mood, tension, low energy, fatigue, poor 

concentration, short term memory problems, withdrawal, panic attacks, phobias, tearfulness, 

guilt/remorse, loss of interest, hopelessness, and anger/irritability. On mental status 

examination, Plaintiff exhibited a sad and depressed mood, slowed speech, restricted affect, 

and he was anxious. Id. Ms. Barone diagnosed PTSD and dysthymic disorder. Id. 

Ms. Barone documented Plaintiff’s reports and her clinical observations as distress, 

sadness/depression, anxiety/tension, guilt/remorse, fatigue/low energy, memory problems, 

poor concentration, negative self-beliefs, and loss of interest. Id. at 457. Over time, Ms. 

Barone documented either reports or observations to include many of the above as well as 

withdrawal, panic attacks, fidgety, phobias, tearfulness, a restricted affect, a labile affect, a 

flat affect, guilt/remorse, loss of interest, negative self-beliefs, hopelessness, 

anger/irritability, and indecisiveness. Id. at 457-517, 578-722, 726-28.

In October 2014, Ms. Barone wrote a letter explaining that Plaintiff had been in 

individual therapy with her since July 31, 2014 for diagnoses of PTSD and dysthymic 

disorder. She noted that since his treatment began, he had developed agoraphobic behaviors 

and his anxiety continued and was getting worse. He tried a volunteer job but could not do 

it because of “panic attacks and physical health issues.” Id. at 658. Plaintiff’s mother stays 

with him during the day so his wife can work without worrying about whether he will hurt 

himself. He repeatedly told Ms. Barone that he would never kill himself. He continued to 

have bad dreams and flashbacks, and recently saw a psychiatrist to try medication changes. 
6

Ms. Barone opined, “Mr. Stonerock currently is unable to work and needs extended time 

and assistance to regain some type of normality in his life.” Id.

On May 28, 2015, Plaintiff presented with a flat affect, neutral motor calm; he 

exhibited distress, anxiety, guilt, and social withdraw. Ms. Barone described Plaintiff as 

“very emotional. Wants to be successful. Cannot function with stress of the work.” Id. at 

498.

On June 11, 2015, Plaintiff’s affect was labile; mood was sad and depressed; he was 

tense; and speech was slow. He exhibited sadness, anxiety, anger, and guilt. He reported 

crying, appetite up and down, sleep problems, social withdrawal, fatigue, low energy, 

indecisiveness, hopelessness, and “very stressed. Looking to try to do some new job.” Id.

at 500. By June 18, 2015, he continued to have a labile affect and sad mood, he was still 

withdrawal socially and “cannot try even a volunteer job” and “feels much guilt about being 

sick when his wife went through cancer.” Id. at 501.

On August 27, 2015, Plaintiff was very distracted over recent paperwork from the 

insurance company, feels hopeless, panic, crying, and sleep problems. Id. at 509. 

On September 3, 2015, Ms. Barone noted Plaintiff’s affect was flat and his mood was 

neutral. Plaintiff was anxious, had guilt, remorse, interested about money, more

depressed, felt he was going to lose everything, reported nightmares, not sleeping well, 

afraid to say how bad he feels, and feels anxious over appointments. Id. at 511. When seen 

on September 10, 2015, Ms. Barone reported Plaintiff’s affect was flat, mood was sad and 
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depressed, motor was lethargic. He reported he was distressed, sad, anxious, angry, 

suffering from panic attacks, having sleep problems, crying, and fatigue. Ms. Barone 

observed that Plaintiff was irritable and unable to sit down and focus due to stress. He has

feeling no motivation to go outside. Id. at 513. On September 17, 2015, Plaintiff’s mental 

status remained the same, he reported it was a stressful week and he “experienced 

depersonalization.” Id. at 515. 

On October 6, 2015, Ms. Barone prepared a narrative to Social Security in which she 

reported treating Plaintiff in individual therapy since July 31, 2014, with the diagnoses of 

PTSD and dysthymic depression. During his initial intake, he has experienced many 

frustrations and setbacks. He has developed agoraphobic behavior and continues to have 

anxiety. He has tried to take a job but cannot meet the requirements due to his panic attacks, 

anxiety, and physical health issues. Prior to this letter, Plaintiff reported to Ms. Barone that 

his mother comes during the day to stay with him, so his wife can work without worrying. 

He says on numerous sessions, he will never kill himself due to the pain it would cause to 

his wife and mother. His anxiety is getting worse. He continues to have bad dreams and 

flashbacks. He had recently gone to a psychiatrist for counseling and is working on 

medication. According to Ms. Barone, Plaintiff is currently unable to work and needs 

extended time and assistance to regain some type of normalcy in his life. Id. at 448. 

In December 2016, Ms. Barone completed a Mental Impairment Questionnaire in 

which she indicated that Plaintiff had been treated with cognitive behavioral therapy and 

pharmacological treatment “with little progress.” Id. at 724. He “presents as being unable 
8

to overcome trauma and depression to be able to function in a normal job environment. He 

demonstrates anxiety, depression, loss of focus, sleep issues, low energy, crying, social 

withdrawal indecisiveness and stomach issues.” Id. Ms. Barone opined that Plaintiff was 

markedly restricted in work-related mental functions that would cause him to be absent from 

work two or more times per month. Id. at 725.

C. Richard Sexton, Ph.D.

Dr. Sexton evaluated Plaintiff in June 2015 for the Ohio Division of Disability 

Determinations. Id. at 409-16. Plaintiff reported feeling depressed and admitted past 

suicidal thoughts and attempts. He also reported frequent feelings of guilt, hopelessness, 

helplessness, and worthlessness. During the end of his last job, Plaintiff had received some 

poor performance reviews but that no employer had ever recommended mental health care, 

counseling, or fitness-for-duty evaluations. Id. at 411.

Dr. Sexton observed that Plaintiff’s “prevailing mood was depressed and anxious and 

his affect was flat.” Id. at 412. Dr. Sexton assessed Plaintiff with a depressive disorder not 

otherwise specified and anxiety disorder not otherwise specified. Id. at 414. Dr. Sexton 

expected Plaintiff to have difficulty responding appropriately to workplace pressures. 

Plaintiff demonstrated slight difficulty maintaining concentration, attention and focus in 

performing simple and multi-step tasks during the evaluation. According to Dr. Sexton, 

although Plaintiff may experience a subjective sense of reduced effectiveness in attention 

and concentration when his “depressive and anxious symptoms increase, objective changes 
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in a level prompting [work] performance concerns by others are not to be expected.” Id. at 

416. 

D. Psychologists Joseph Edwards, Ph.D. and Irma Johnston, Ph.D.

Dr. Edwards reviewed the administrative record in July 2015 and described 

Plaintiff’s impairments as anxiety disorder and affective disorder. Id. at 161. He opined 

that Plaintiff has moderate restrictions of activities of daily living; moderate difficulties in 

maintaining social functioning; and moderate difficulties in maintaining concentration, 

persistence or pace. Id. He further opined that because of depression and anxiety, Plaintiff

would have difficulty in maintaining attention and concentration needed to perform detailed, 

complex instructions. He could carry out one-to-three step tasks in settings without 

prolonged periods of uninterrupted concentration. Id. at 166. Dr. Edwards recognized that 

Plaintiff tends to be withdrawn and would likely have moderate difficulties interacting with 

others. He would do best, Dr. Edwards believed, in an environment requiring only 

superficial, infrequent contact with others. Id.

Dr. Johnston reviewed the administrative record in October 2015, and reached the 

same conclusions as Dr. Edwards. Id.at 179-85.

E. Steven Dyckman, M.D.

Dr. Dyckman reviewed Plaintiff’s medical records for an insurance company in

December 2015. Id. at 888-90. Dr. Dyckman described Plaintiff’s August 2015 through 

October 2015 records as indicating, “[d]epression, severe social anxiety, anger, fatigue, and

road range. Mood is depressed, affect is flat on mental status..., poor decision making, poor 
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problem solving..., poor insight, depressive, suicidal, and anxiety. Memory is intact. Poor 

concentration.... The claimant is unable to return to work full-time. The claimant is smart 

but due to depression and anxiety has problems functioning well.” Id. at 888.

Dr. Dyckman concluded that Plaintiff “is mentally, cognitively, and behaviorally 

impaired. [Plaintiff] has severe PTSD and dysthymic depression. He is unable to work at 

this time in any capacity, therefore, no work activity restrictions are required at this time 

because the claimant is unable to work in any capacity at this time....” Id. at 890.

III. Standard of Review and ALJ Kenyon’s Decision

Review of ALJ Kenyon’s 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.).

 ALJ Kenyon reviewed the evidence and evaluated Plaintiff’s disability status under 

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

§ 404.1520. His more pertinent findings began at steps two and three where he found that 

Plaintiff had severe impairments—fibromyalgia, temporomandibular joint (TMJ) 
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dysfunction, an anxiety disorder, PTSD, and depression—and that his impairments did not 

automatically qualify him for benefits. (Doc. #5, PageID #s 57-60).

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

functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002)), 

consists of medium work with many limitations. The ALJ found:

The claimant ... is limited to no work around hazards such as 

unprotected heights or dangerous machinery. The claimant is limited to 

performing unskilled, simple, repetitive tasks with no fast-paced 

production work or jobs that involve strict production quotas. The 

claimant is further limited to occasional contact with coworkers and 

supervisors, no public contact, no teamwork or tandem tasks, and jobs 

that involve very little, if any, change in the job duties or the work 

routine from one day to the next.

Id. at 60.

The ALJ concluded at step five that there were many full-time jobs Plaintiff could 

perform. These main findings led the ALJ to ultimately conclude that Plaintiff was not 

under a disability and not eligible to receive Disability Insurance Benefits.

IV. Discussion

Plaintiff focuses on the ALJ’s assessment of his mental-work limitations. He 

contends that the ALJ erred in weighing the opinions of his treating counselor, Ms. Barone;

the peer-review opinion from Dr. Dyckman; and the assessments from the non-examining 

state agency psychologists, Drs. Edwards and Johnston.

A. Medical Source Opinions

Social Security Regulations require ALJs to adhere to certain standards when
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weighing medical opinions. “Key among these is that greater deference is generally

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

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

omitted). The rule is straightforward:

Treating-source opinions must be given “controlling weight”

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

by medically acceptable clinical and laboratory diagnostic

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

other substantial evidence in [the] case record.”

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

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

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

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

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

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

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

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

treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory “good reasons” 

requirement is satisfied when the ALJ provides “specific reasons for the weight placed on a 

treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p, 1996 WL 374188, at 

*5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to any subsequent reviewer 

the weight given and the reasons for that weight. Id.
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B. Ms. Barone and Dr. Dyckman

ALJ Kenyon reviewed Ms. Barone’s opinions and assigned them little weight. He 

reasoned, in part, that Ms. Barone is not a psychologist or psychiatrist but, instead, has an 

MA and MS. (Doc. #5, PageID #66). The ALJ, however, overlooked that Ms. Barone is 

also a Licensed Professional Clinical Counselor (LPCC). Although this does not mean that 

she is a licensed psychologist or psychiatrist, it does mean that the ALJ overlooked or did 

not realize that Ms. Barone possessed another meaningful qualification—endorsed by the 

State of Ohio—for mental-health counseling and diagnosis. See 

https://cswmft.ohio.gov/Counselors/LPCC. It was error for the ALJ discount Ms. Barone’s 

opinions by overlooking or not understanding the significance of her status as a Licensed 

Professional Clinical Counselor in Ohio. 

The ALJ provided three more reasons for discounting Ms. Barone’s opinions: (1) 

they “seem based entirely on the claimant’s subjective complaints”; (2) “The level of mental 

health treatment the claimant has received has been conservative and does not support the 

level of limitations alleged by Ms. Barone”; and (3) “Ms. Barone’s opinion that the claimant 

is unable to work due to stress is an issue reserved for the Commissioner.” (Doc. #5, 

PageID #66). None of these reasons supports the ALJ’s rejection of Ms. Barone’s opinions. 

First, Ms. Barone’s treatment notes reveal that she based her opinions on the many 

clinical signs she observed and on the results of her objective mental-status exams. See 

supra, §II(A); see also PageID #s 447-518, 578-723, 726-728, 805-822, 1156-1209. 

Psychiatrist Dr. Dyckman confirmed this view of Ms. Barone’s observations and findings. 
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He wrote:

Yes, the medical evidence submitted is adequate, and there were full formal 

mental status exams performed as part of the claimant’s workup in each of the 

progress note[s]. Result of the exam[s] showed the claimant would have a flat 

or constricted affect and depressed mood with observed anxiety and tension, 

also would have crying and feelings of hopelessness. Thought process, had 

poor decision making, poor problem solving, occasionally will have suicidal 

thoughts.

(Doc. #5, PageID #889). And, “when mental illness is the basis of a disability claim, 

clinical and laboratory data may consist of the diagnosis and observations of professionals 

trained in the field of psychopathology.” Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th 

Cir. 1989) (citation omitted); see Warford v. Astrue, No. CIV.A 09-52-GWU, 2010 WL 

3190756, at *6 (E.D. Ky. Aug.11, 2010) (“interviews are clearly an acceptable diagnostic 

technique in the area of mental impairments and [an examining psychologist] could rely 

upon the subjective complaints elicited during the interview in formulating his functional 

restrictions”). Substantial evidence therefore fails to support the ALJ’s finding that Ms. 

Barone rested her opinions “entirely on” Plaintiff’s subjective complaints.

Second, the ALJ’s rejection of Ms. Barone’s opinions based on Plaintiff’s 

“conservative” care is flawed. It is unclear what mental-health-care treatment the ALJ 

thought Plaintiff did not receive. As Dr. Johnston noted, the record shows that Plaintiff saw 

Ms. Barone for counseling on a weekly basis. Id. at 180. During the ALJ’s August 2017 

hearing, Plaintiff testified that he was then seeing her monthly because his insurance 

company dropped him from their plan, and he was unable to afford weekly treatment despite 
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his desire for more frequent treatment. Id. at 142-43. Ms. Barone indicated in December 

2016 that Plaintiff had been treated with cognitive behavioral therapy and pharmacological 

treatment. Id. at 725. It is unclear what additional treatment the ALJ thinks Plaintiff should 

have received. The same goes for the ALJ’s rejection of Dr. Dyckman’s opinions as on the 

supposed conservative care Plaintiff was provided. As a result, the ALJ’s rejection of Ms. 

Barone’s and Dr. Dyckman’s opinions because Plaintiff allegedly received only limited or 

conservative care is unsupported by substantial evidence. 

In addition, the medical evidence contradicts the ALJ’s finding that the treatment 

record fails to support Plaintiff’s level of limitations as found by Ms. Barone. In fact, Ms. 

Barone’s opinions are entirely consistent not only with her own extensive and substantial 

treatment notes, but also with the opinions of psychiatrist Dr. Dyckman and arguably Dr. 

Sexton, who opined that Plaintiff’s was expected to have difficulty responding appropriately 

to workplace pressures. Ms. Barone’s treatment notes dating back to the alleged disability 

onset date repeatedly and consistently document a myriad of clinical signs, symptoms, and 

objective observations on mental-status exams, including (but not limited to): distress, 

anxious mood, sad mood, depressed mood, tension, slowed speech, low energy, fatigue, 

lethargic, poor concentration, memory problems, withdrawal, panic attacks, fidgety, 

phobias, tearfulness, a restricted affect, a labile affect, a flat affect, guilt/remorse, loss of 

interest, negative self-beliefs, hopelessness, anger/irritability, and indecisiveness. Id. at 447-

518, 578-723, 726-28, 805-22, 1156-1209. Dr. Dyckman confirmed that Ms. Barone’s 

treatment notes establish that Plaintiff was mentally, cognitively, and behaviorally impaired 
16

by severe PTSD and dysthymic depression and was unable to work in any capacity. Id. at 

890. 

Third, recall that Ms. Barone thought stress prevented Plaintiff from holding a job. 

The ALJ rejected this by finding it an “issue reserved for the Commissioner.” Id. at 66. 

The ALJ also gave little weight to Dr. Dyckman’s opinion that Plaintiff could not cope with 

a minimal level of work because this is an issue reserved to the Commissioner. Id. at 65. 

This is not a valid reason, although it is one ALJs frequently use (i.e., misuse).

The pertinent regulation says that “a statement by a medical source that you 

are ‘disabled’ or ‘unable to work’ does not mean that we will determine that 

you are disabled.” 20 C.F.R. § 404.1527(e)(1). That’s not the same thing as 

saying that such a statement is improper and therefore to be ignored, as is 

further made clear when the regulation goes on to state that “the final

responsibility for deciding” residual functional capacity (ability to work—and 

so whether the applicant is disabled) “is reserved to the Commissioner.” § 

404.1527(e)(2) (emphasis added). And “we will not give any special

significance to the source of an opinion on issues reserved to the 

Commissioner.” § 404.1527(e)(3) (emphasis added).

Bjornson v. Astrue, 671 F.3d 640, 647-48 (7th Cir. 2012).

Furthermore, Ms. Barone did not merely opine that Plaintiff was unable to work due 

to stress, she also opined that Plaintiff would be unable to perform specific work-related 

functions, including performing repetitive work, dealing with people, working alone or in 

isolation, performing under stress, and following specific instructions. See, e.g., PageID #s 

582, 590, 594, 672. In another assessment, Ms. Barone opined that Plaintiff was markedly 

restricted in work-related mental functions that would cause him to be absent from work two 

or more times per month. Id. at 725. The vocational expert testified at the hearing that an 
17

individual with these limitations would be unable to sustain competitive employment at any 

exertional level. Id. at 149-51.

For these reasons, Plaintiff’s challenges to the ALJ’s review of Ms. Barone’s and Dr. 

Dyckman’s opinions are well taken.

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, 741 F.3d at 725-26; or failed to provide specific reasons supported by substantial 

evidence for finding the plaintiff lacks credibility, see Rogers, 486 F.3d at 249.

Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm, modify, 

or reverse the Commissioner’s decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under 

sentence 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 
18

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 remand for an award of benefits is unwarranted in the present case because the 

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

strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is 

entitled to an Order remanding this matter to the Social Security Administration pursuant to 

sentence four of § 405(g) due to problems set forth above. On remand the ALJ should be 

directed to review Plaintiff’s disability claim to determine anew whether he was under a 

benefits-qualifying disability, including, at a minimum, a reassessment of his residual 

functional capacity and a re-consideration of the evidence at steps three, four, and five of the 

sequential evaluation.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability decision on February 26, 2018 be vacated;

2. This matter be remanded to the Social Security Administration under sentence 

four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report 

and Recommendations and any Order adopting this Report and 

Recommendations; and

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

September 10, 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. Pursuant to Fed. R. Civ. P. 6(d), this 

period is extended to SEVENTEEN days because this Report is being served by one of the 

methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). 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).