Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
VERNE S.,1
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Case No. 3:24-cv-00280
District Judge Michael J. Newman
Magistrate Judge Caroline H. Gentry
REPORT AND RECOMMENDATION2
Plaintiff filed an application for Disability Insurance Benefits in January 2022 and
for Supplemental Security Income in February 2022. Plaintiff’s claims were denied
initially and upon reconsideration. After a hearing at Plaintiff’s request, the
Administrative Law Judge (ALJ) concluded that Plaintiff was not under a “disability” as
defined in the Social Security Act prior to November 21, 2022, but also concluded that he
became disabled beginning on that date. The Appeals Council denied Plaintiff’s request
for review. Plaintiff subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
1 See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
2 See 28 U.S.C. § 636(b)(1). The notice at the end of this opinion informs the parties of their ability to file
objections to this Report and Recommendation within the specified time period.
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Court to affirm the partially-favorable decision. For the reasons set forth below, it is
recommended that the Court REVERSE the Commissioner’s partially-favorable decision
and REMAND for further proceedings.
I. 	BACKGROUND
Plaintiff asserts that he has been under a disability since December 9, 2020.3 At
that time, he was fifty-three years old. Accordingly, Plaintiff was considered a “person
closely approaching advanced age” under the Social Security regulations. See 20 C.F.R.
§§ 404.1563(d), 416.963(d).4 Plaintiff changed age categories and was a “person of
advanced age” on the established disability onset date. 20 C.F.R. § 404.1563(e). Plaintiff
has a “high school education and above.” See 20 C.F.R. § 404.1564(b)(4).
The evidence in the Administrative Record (“AR,” Doc. No. 7) is summarized in
the ALJ’s decision (“Decision,” Doc. No. 7-2 at PageID 43-66), Plaintiff’s Statement of
Errors (“SE,” Doc. No. 8), the Commissioner’s Memorandum in Opposition (“Mem. In
Opp.,” Doc. No. 10), and Plaintiff’s Reply Memorandum (“Reply,” Doc. No. 11). Rather
than repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
3 Plaintiff initially alleged that his disability began on October 1, 2021. (AR, Doc. No. 7-5 at PageID 274,
283.) He amended his alleged disability onset date to December 9, 2020 during the August 2023 hearing.
(AR, Doc. No. 7-2 at PageID 76.)
4 The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as
they are similar in all relevant respects to the corresponding Supplemental Security Income Regulations.
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II. 	STANDARD OF REVIEW
The Social Security Administration provides Disability Insurance Benefits and
Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means “the inability to do any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 404.1505(a).
This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
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evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted). This standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the
ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
III. 	FACTS
A. 	The ALJ’s Factual Findings
The ALJ was tasked with evaluating the evidence related to Plaintiff’s applications
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
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the Social Security regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1: 	Plaintiff has not engaged in substantial gainful activity since
December 9, 2020, the amended alleged onset date.
Step 2: 	He has the severe impairments of degenerative disc disease, diabetes
with retinopathy and macular edema, cataracts, and obesity.
Step 3: 	He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: 	His residual functional capacity (RFC), or the most he can do despite
his impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002), consists of light work as defined in 20 C.F.R.
§ 404.1567(b), subject to the following limitations: No more than
frequent kneeling, crouching, crawling, near or far visual acuity, or
balancing, as defined in the Selected Characteristics of Occupations,
as published by the U.S. Department of Labor (S.C.O.). No more
than occasional stooping or climbing of ramps and stairs. No
climbing of ladders, ropes, or scaffolds. The claimant should avoid
all exposure to unprotected heights, heavy machinery, commercial
driving, and bright lights, such as direct sunlight. The claimant may
be exposed to lighting found in a typical office.
He is unable to perform any of his past relevant work.
Step 5: 	Prior to November 21, 2022, considering Plaintiff’s age, education,
work experience, and RFC, there were jobs that existed in significant
numbers in the national economy that he could perform.
Since November 21, 2022, considering his age, education, work
experience, and RFC, there have been no jobs in significant numbers
in the national economy that Plaintiff can perform.
(Decision, Doc. No. 7-2 at PageID 49-58.) These findings led the ALJ to conclude that
Plaintiff was not disabled prior to November 21, 2022 but has been disabled since that
time. (Id. at PageID 58.)
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B. 	State Agency Medical Consultants
State agency medical consultant W. Scott Bolz, M.D. completed a Disability
Determination Explanation form in July 2022. (AR, Doc. No. 7-3 at PageID 105-08.)
After summarizing the evidence reviewed (id. at PageID 105-06), Dr. Bolz concluded
that Plaintiff’s spine disorder, diabetes mellitus, cataracts, and hypertension were severe.
(Id. at PageID 106.) In the Symptoms Evaluation section of the form, Dr. Bolz stated that
Plaintiff’s alleged symptoms were “[p]artially consistent” with the “total medical and
non-medical evidence” of record. (Id. at PageID 106-07.) He explained: “[Plaintiff]
endorses ambulation is limited to standing for 10 minutes or less. While [Plaintiff] has
positive findings on imaging, [Plaintiff] does retain full muscle strength making
statements partially consistent.” (Id. at PageID 107.)
Dr. Bolz also addressed the medical opinion of consultative physician Amita Oza,
M.D. and concluded that the opinion was not “more restrictive than the findings.” (AR,
Doc. No. 7-3 at PageID 107.) According to Dr. Bolz: “In the absence of any treating
source opinions, and because this opinion is consistent with and supported by other
reports and evidence, the consultant’s conclusions are found to be persuasive. The exam
is detailed and proposes specific limitations. No contradictory findings are found.” (Id.)
In the physical RFC section of the form, Dr. Bolz opined that Plaintiff could lift
and/or carry up to twenty pounds occasionally and ten pounds frequently, stand and/or
walk for a total of approximately six hours in an eight-hour workday, and sit for
approximately six hours in an eight-hour workday. (AR, Doc. No. 7-3 at PageID 107.)
Dr. Bolz opined that Plaintiff could frequently balance, kneel, crouch, and crawl, and
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only occasionally stoop and climb ramps or stairs. (Id. at PageID 108.) Dr. Bolz also
opined that Plaintiff could never climb ladders, ropes, or scaffolds and needed to avoid all
exposure to hazards, including heaving machinery, commercial driving, and unprotected
heights. (Id.) When asked to explain the exertional limitations that he assessed, Dr. Bolz
wrote: “antalgic gait, [positive straight leg raising], [and] spondylotic changes through
[the] mid[-] lumbar spine.” (Id. at PageID 107.)
Bradley Lewis, M.D. reviewed the updated record and completed a Disability
Determination Explanation form at the reconsideration level in November 2022. (AR,
Doc. No. 7-3 at PageID 121-25.) After summarizing the evidence (id. at PageID 121-22),
Dr. Lewis concurred with Dr. Bolz’s conclusions about Plaintiff’s severe impairments
and that Plaintiff’s reported symptoms appeared partially consistent with the medical
evidence. (Id. at PageID 122-23.) Dr. Lewis also concurred with and adopted the
exertional and non-exertional limitations identified by Dr. Bolz. (Id. at PageID 123-24.)
In support of his conclusions, Dr. Lewis cited Dr. Bolz’s explanation, as well as the May
2022 consultative examination findings, a lumbar spine x-ray report, and findings that
were documented in Plaintiff’s June 2022 office visits for treatment of diabetic
retinopathy. (Id. at PageID 124-25.) Dr. Lewis further explained: “While evidence at
reconsideration reflects ongoing [outpatient] treatment for retinopathy, [Plaintiff] retains
sufficient functional capacity for work as outlined in the initial RFC.” (Id. at PageID
125.)
The ALJ concluded that he was “substantially persuaded” by the consultants’
findings. (Decision, Doc. No. 7-2 at PageID 54.) The ALJ explained: “The undersigned
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finds these recommended limitations supported by citations to the record and explanation,
as well as consistent with the medical record. As such, the undersigned has adopted them
as the bulk of the claimant’s residual functional capacity.” (Id. at PageID 55.) The ALJ
further explained, however, that “[o]ut of an abundance of caution . . . and in deference to
the claimant’s visual difficulties,” he further limited Plaintiff to the light exposure and
visual acuity limitations in the RFC, “neither of which appear to have been considered by
the reviewing physicians.” (Id.)
C. 	Consultative Physician Amita Oza, M.D.
Amita Oza, M.D. performed a consultative physical examination in May 2022.
(AR, Doc. No. 7-7 at PageID 523-29.) Dr. Oza documented the following neurological
and musculoskeletal findings in her report:
Shows him to be right-handed. Grip strength is strong, bilaterally
symmetrical. Range of motion at joints in upper extremities is full except at
shoulders where there is restriction as he complains of pain in his back.
There is tenderness on palpation of dorsolumbar spine and right
paravertebral muscles. On straight leg raising test at [thirty] degrees, it was
positive on the right side. Range of motion at right hip and right knee is
also slightly restricted because of his back pain. Range of motion is full at
other joints. Reflexes are 2+. I could not feel obvious significant weakness
of right great toe extensor, as he is very strong on left side, but he walks
without ambulatory aids favoring his right lower extremity. Range of
motion at [the lumbar spine] is restricted, as described.
(Id. at PageID 524.) Dr. Oza concluded that Plaintiff had glaucoma, poor near vision,
“hypertension which is slightly elevated,” diabetes without end-organ damage, a history
of a back injury, and “right-sided lumbar radiculopathy and pain, as described.” (Id.) She
opined that, due to Plaintiff’s back pain, “work-related activities appear to be affected till
[sic] he gets his surgery done.” (Id.)
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The ALJ concluded that Dr. Oza’s opinion was “no more than minimally
persuasive.” (Decision, Doc. No. 7-2 at PageID 55.) The ALJ acknowledged that Dr. Oza
“personally examined [Plaintiff] and conducted musculoskeletal testing,” and that she
provided a “brief listing of [Plaintiff’s] complained-of conditions.” (Id.) However the
ALJ stated that “in terms of a function-by-function analysis, [Dr. Oza’s report] offers
only the statement that “work-related activities appear to be affected till [sic] he gets his
surgery done.” (Id.) According to the ALJ, such a statement is “persuasive in regards to
its conclusion that the claimant necessitates work limitations, which is supported by Dr.
Oza’s own examination findings, consistent with the overall record, and addressed by the
limitations set forth herein.” (Id.) On the other hand, the ALJ discounted Dr. Oza’s
opinion because it “fails to provide a function-by-function analysis of the claimant’s
capabilities, reducing the overall persuasiveness of the assertion.” (Id.)
IV. 	LAW AND ANALYSIS
Plaintiff asserts that the ALJ “reversibly erred by failing to build an accurate and
logical bridge between the evidence and his conclusion that Smith can sustain light
exertion work prior to November 21, 2022.” (SE, Doc. No. 8 at PageID 752.) For the
reasons discussed below, Plaintiff’s assertion is well-taken and the ALJ’s decision should
be reversed.
A. 	Applicable Law
It is well-established that determination of the RFC is a task reserved for the ALJ.
20 C.F.R. § 404.1546(c); see also Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th
Cir. 2004) (“[T]he ALJ is charged with the responsibility of evaluating the medical
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evidence and the claimant’s testimony to form an ‘assessment of his [RFC]’”). A
claimant’s RFC describes the most he can do in a work setting despite his physical and
mental limitations. 20 C.F.R. § 404.1545(a)(1). When formulating the RFC, the ALJ
must consider the claimant’s “ability to meet the physical, mental, sensory, and other
requirements of work.” 20 C.F.R. § 404.1545(a)(4). The ALJ must base the RFC on all
relevant evidence in the record, including the claimant’s descriptions of his limitations
and symptoms, objective medical evidence, medical opinions, other medical evidence,
evidence from non-medical sources, and prior administrative medical findings. See 20
C.F.R. § 404.1545(a)(1)-(5).
The ALJ is required to consider evidence from the entire relevant time period
when formulating the RFC. E.g., White v. Comm’r of Soc. Sec., No. 3:21-cv-762, 2022
U.S. Dist. LEXIS 140674, *47 (N.D. Ohio June 1, 2022) (Knapp, M.J.), aff’d 2022 U.S.
Dist. LEXIS 139178 (N.D. Ohio Aug. 4, 2022) (Knepp, D.J.). As Magistrate Judge
Knapp explained, “[w]hile the substantial evidence standard is deferential, the Sixth
Circuit has emphasized that the chief limitation to that deference ‘is the requirement that
all determinations be made based upon the record in its entirety.’” 2022 U.S. Dist. LEXIS
140674, *47 (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th Cir. 2007)).
Thus, an ALJ should not “unduly concentrate on one single aspect of the claimant’s
history.” Rogers, 486 F.3d at 249.
Notably, “[t]he responsibility for determining a claimant’s [RFC] rests with the
ALJ, not a physician.” Poe v. Comm'r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1546(c)). An ALJ is required to consider medical opinion
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evidence when determining the RFC, but is not required to adopt them or adopt any such
findings verbatim. Poe, 342 F. App’x at 156-57 (6th Cir. 2009). In addition, “[t]he
determination of a plaintiff’s RFC is entirely within the purview of the ALJ, and this
Court will defer to that finding even if there is substantial evidence in the record that
would have supported an opposite conclusion.” Rieder v. Comm’r of Soc. Sec., No. 2:20-
CV-05858, 2021 WL 5881784, at *5 (S.D. Ohio Dec. 13, 2021) (internal quotations and
citation omitted) (Preston Deavers, M.J.).
Nevertheless, an ALJ is required “to show his or her work.” Scott K. v. Comm’r of
the SSA, No. 3:21-CV-00129, 2022 U.S. Dist. LEXIS 175673, at *11 (S.D. Ohio Sept.
27, 2022) (Silvain, M.J.) (internal citation omitted). Thus, “[t]his Court cannot uphold an
ALJ’s decision, even if there if there is enough evidence in the record to support the
decision, where the reasons given by the trier of fact do not build an accurate and logical
bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875,
877 (N.D. Ohio 2011) (cleaned up) (internal quotations and citation omitted). See also
Danyel P. v. Comm’r of Soc. Sec., No. 2:21-CV-02405, 2022 WL 1514170, at *6 (S.D.
Ohio May 13, 2022) (Preston Deavers, M.J.) (ALJ’s “inexplicable and illogical
consistency” warranted remand); Kimberly S. v. Comm’r of Soc. Sec., No. 3:21-CV-
00310, 2022 WL 17820565, at *3 (S.D. Ohio Dec. 20, 2022) (Silvain, M.J.) (ALJs must
“provide a coherent explanation of [their] reasoning . . . in order to provide sufficient
rationale for a reviewing adjudicator or court”); Hardiman v. Comm’r of Soc. Sec., No.
2:12-CV-00508, 2013 WL 3762266, at *5 (S.D. Ohio July 16, 2013) (Preston Deavers,
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M.J.) (remanding case on the ground that “the ALJ’s decision is internally inconsistent
and incomplete”).
B. 	The ALJ’s RFC Is Not Supported By Substantial Evidence.
Plaintiff asserts that the ALJ erred by adopting the assessments of the state agency
medical consultants, who “did not even review substantial critical objective evidence.”
(SE, Doc. No. 8 at PageID 758.) For the reasons discussed below, the Court concludes
that the ALJ’s RFC is not supported by substantial evidence because the ALJ did not
build a logical bridge between his decision to adopt the state agency medical consultants’
assessment and the later-submitted evidence related to Plaintiff’s spine condition. The
ALJ’s decision should therefore be reversed and remanded.
As an initial matter, Defendant asserts that Plaintiff “has not pointed to any
evidence that the state agency doctors did not have access to that would have altered their
opinions and that of the ALJ.” (Mem. In Opp., Doc. No. 10 at PageID 775.) As Plaintiff
points out, this contention is incorrect. Plaintiff did cite to several records that were not
reviewed by the state agency medical consultants: physical therapy notes dated between
June and August of 2020, an August 2020 lumbar spine MRI report; and orthopedic
treatment notes dated in August and September of 2020 June and July. (SE, Doc. No. 8 at
PageID 758-60 (citing AR, Doc. No. 7-9 at PageID 711-12, 724, 733, 744-45, 747, 751).)
Although these records pre-dated the state agency medical consultants’ July and
November 2022 assessment reports, they were not added to the record until after the
consultants reviewed the record and provided their opinions. (Compare AR, Doc. No. 7-3
at PageID 108, 132, with AR, Doc. No. 7-9 at PageID 698.) Therefore, the consultants
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did not review or consider these records when they evaluated Plaintiff’s physical
condition and opined that he could perform light-exertion work with additional postural
and environmental limitations.
Significantly, these records showed more significant pathology and examination
abnormalities than the records reviewed by the consultants. The physical therapy notes
from June and July 2020 documented Plaintiff’s complaints of pain in the low back and
down the right thigh, as well as sharp, stabbing pain with some motions and transfers.
(AR, Doc. No. 7-9 at PageID 724.) Examinations showed limited range of motion at the
hip and trunk, decreased right leg strength, decreased strength with lumbar extension,
increased radicular symptoms with some stretching and movements, and an inability to
perform quick movements without increased pain. (AR, Doc. No. 7-9 at PageID 711-12,
724, 733.) When Plaintiff began seeing an orthopedist in August 2020, he complained of
low back pain that radiated down his right leg, and said that twelve recent physical
therapy sessions did not alleviate his symptoms. (AR, Doc. No. 7-9 at PageID 744, 747.)
Further, the August 2020 lumbar spine MRI report showed:
1. 	Severe canal stenosis at L4-L5, in part due to a large central and
right paracentral disc protrusion.
2. 	Left subarticular zone disc protrusion at L3-L4 with associated
moderate canal stenosis and advanced left lateral recess stenosis.
3. 	Mild to moderate canal stenosis at L1-L2, and mild canal stenosis at
L2-L3.
4. 	Congenital canal narrowing in the lumbar spine contributes to the
above canal stenosis.
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5. 	Multilevel mild and moderate foraminal stenosis, detailed level by
level above.
(AR, Doc. No. 7-9 at PageID 751.) Orthopedist Domingo Molina, M.D. recommended a
two-level decompression surgery based on “[Plaintiff’s] severe stenosis secondary to disc
herniation.” (AR, Doc. No. 7-9 at PageID 745.) In September 2020, Dr. Molina again
recommended surgery due to “intractable pain and weakness.” (AR, Doc. No. 7-9 at
PageID 747).) Therefore, contrary to Defendant’s assertion, Plaintiff did cite to “evidence
that the state agency doctors did not have access to that would have altered their opinions
and that of the ALJ.” (See Mem. In Opp., Doc. No. 10 at PageID 775.)
Defendant relies on two Sixth Circuit cases to argue that “[t]hough the state
agency doctors did not include the evidence at the time of their opinions, the ALJ took
this into account and considered the earlier evidence based on Plaintiff’s amended alleged
onset date.” (Mem. In Opp., Doc. No. 10 at PageID 775 (citing McGrew v. Comm’r of
Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 2009); Kelly v. Comm’r of Soc. Sec., 314 F.
App’x 827, 831 (6th Cir. 2009)).) These cases do stand for the proposition that an ALJ is
entitled to rely on the opinions of state agency medical and psychological consultants,
even if the record contains later-submitted evidence, as long as the ALJ considers the
later records and accounts for any relevant differences in them. McGrew, 343 F. App’x at
32; Kelly, 314 F. App’x at 830. But the record in this case does not show that the ALJ
considered the later-submitted evidence and accounted for relevant changes when he
adopted the assessments of the state agency medical consultants and formulated the RFC.
Therefore, the cited cases are inapposite.
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Instead, the ALJ adopted verbatim the exertional, postural, and environmental
limitations suggested by the consultants without accounting for later evidence about
Plaintiff’s spinal condition, including the moderate to severe pathology documented in
the July 2020 MRI report. The ALJ stated: “The undersigned finds these recommended
limitations supported by citations to the record and explanation, as well as consistent with
the medical record. As such, the undersigned has adopted them as the bulk of [Plaintiff’s]
residual functional capacity.” (Decision, Doc. No. 7-2 at PageID 55.) But the ALJ did not
expressly find that the consultants’ suggested limitations accounted for the later evidence
that they did not review. By contrast, the ALJ explained that he added vision-related
limitations to the RFC to account for records that the consultants did not consider: “Out
of an abundance of caution … and in deference to the claimant’s visual difficulties, the
undersigned finds it appropriate to further impose the light exposure and visual acuity
limitations noted above, neither of which appear to have been considered by the
reviewing physicians.” (Id.)
Nor did the ALJ appropriately account for the later-submitted evidence about
Plaintiff’s spinal condition elsewhere in the decision. It is true that the ALJ summarized
the medical evidence related to Plaintiff’s back condition in the RFC analysis. (Decision,
Doc. No. 7-2 at PageID 52-53.) But the ALJ noted that an April 2020 lumbar spine x-ray
showed only “mild multilevel degenerative lumbar changes.” (Id. at PageID 52 (emphasis
added).) Then, with regard to the later-submitted July 2020 lumbar spine MRI results, the
ALJ stated only that the radiologist “noted an impression of multilevel lumbar canal and
foraminal stenosis with disc protrusions (Exhibit 12F at 8),” and failed to acknowledge
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that this imaging showed moderate to severe pathology at several levels. (Compare
Decision, Doc. No. 7-2 at PageID 52, with AR, Doc. No. 7-9 at PageID 751.) Perhaps
unsurprisingly, given this omission, the ALJ’s conclusory statement that the exertional
limitations in the RFC “are based on [Plaintiff’s] spinal condition” does not explain why
the RFC limitations for light exertion account for the moderate to severe pathology
documented in the July 2020 MRI report. (See Decision, Doc. No. 7-2 at PageID 52.)
The ALJ also erred by relying on later-submitted physical therapy records to
discount Plaintiff’s testimony about his difficulty with sitting, standing, and walking:
Contrary to his testimony of only being able to sit for 15 minutes at one
time, stand 15 minutes at one time and walk 10 minutes at one time,
physical therapy notes show [Plaintiff] was capable of sitting without
problems and standing and walking for 25 minutes at one time, progressing
towards an hour in June 2020 (Exhibit 11F at 9, 20).
(Decision, Doc. No. 7-2 at PageID 52 (citing AR, Doc. No. 7-9 at PageID 706, 717).) The
cited records do not show that Plaintiff could sit “without problems.” Instead, Plaintiff’s
physical therapist noted that as of June 30, 2020, Plaintiff met a long-term goal of sitting
for one hour with minimal pain. (AR, Doc. No. 7-9 at PageID 706, 716.) And although
Plaintiff’s physical therapist stated that he was “progressing” toward a long-term goal of
standing and walking for one hour with minimal pain (id. at PageID 706, 716), Plaintiff
reported in June 2020 that he could only stand and/or walk for approximately twenty-five
minutes before needing to rest. (Id. at PageID 717.) Plaintiff stated that “things [were]
roughly the same” at the next visit in July 2020. (Id. at PageID 707.) Even putting aside
these errors, the ALJ failed to explain how the RFC limitations for light exertion activity
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(which require Plaintiff to sit for approximately two hours and stand and/or walk for
approximately six hours in an eight-hour workday) account for the evidence in those
records that documented Plaintiff’s difficulties with sitting, standing, and walking.
The ALJ further discounted Plaintiff’s testimony about the severity of his back
condition by citing Plaintiff’s treatment history and examination findings from records
dated since June 2021. (Decision, Doc. No. 7-2 at PageID 52-53.) However, the ALJ
failed to acknowledge that the examinations documented in the later-submitted records
showed limited range of motion at the hip and trunk, decreased right leg strength,
decreased strength with lumbar extension, decreased sensation in the right leg, increased
radicular symptoms with some stretching and movements, and an inability to perform
quick movements without increased pain. (See, e.g., AR, Doc. No. 7-7 at PageID 456-57;
AR, Doc. No. 7-9 at PageID 711-12, 724, 733, 744, 746.) Again, the ALJ failed to
consider and account for new evidence that the state agency medical consultants did not
have the opportunity to review.
For all these reasons, the undersigned finds that the ALJ did not comply with the
requirement to consider and account for later-submitted evidence when he relied on the
consultants’ assessments to formulate the RFC. McGrew, 343 F. App’x at 32; Kelly, 314
F. App’x at 831. The ALJ therefore did not build a logical bridge between the cited
evidence and his conclusions, and the RFC is not supported by substantial evidence.
Accordingly, the undersigned recommends that the ALJ’s decision be reversed and
remanded.
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V. 	REMAND
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 Four may result in the need for further proceedings or an immediate
award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041
(6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming
or where the evidence of disability is strong while contrary evidence is lacking. Faucher
v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is neither overwhelming nor strong while contrary evidence is
lacking. Faucher, 17 F.3d at 176. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to Sentence Four of Section
405(g) for the reasons stated above. On remand, the ALJ should further develop the
record as necessary, particularly as to the opinion evidence and the medical evidence
related to Plaintiff’s back condition, and evaluate the evidence of record under the
applicable legal criteria mandated by the Commissioner’s regulations and rulings and
governing case law. The ALJ should evaluate Plaintiff’s disability claim under the
required five-step sequential analysis to determine anew whether Plaintiff was under a
disability and whether his applications for Disability Insurance Benefits and
Supplemental Security Income should be granted.
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IT IS THEREFORE RECOMMENDED THAT:
1. 	Plaintiff’s Statement of Errors (Doc. No. 8) be GRANTED;
2. 	The Court REVERSE the Commissioner’s non-disability determination;
3. 	No finding be made as to whether Plaintiff was under a “disability” within
the meaning of the Social Security Act;
4. 	This matter be REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Order; and
5. 	This case be terminated on the Court’s docket.
s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
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 if this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), 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
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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).
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