United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris U.S. Magistrate Judge
ORDER ADOPTING REPORT & RECOMMENDATION ;
OVERRULING DEFENDANT'S OBJECTION ;
GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT ; DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT ; AND REMANDING CASE TO
J. Tarnow Senior United States District Judge
Howard Balakovich seeks judicial review of the decision of an
Administrative Law Judge (“ALJ”) denying his
application for Disability Insurance Benefits
(“DIB”) and Supplemental Income Security Benefits
(“SSI”). Plaintiff, through counsel, filed a
Motion for Summary Judgment  on July 10, 2018. Defendant
filed a Motion for Summary Judgment  on September 6,
2018. Plaintiff filed a Reply  on September 10, 2018.
12, 2019, the Magistrate Judge issued a Report and
Recommendation  (“R&R”) recommending that
the Court grant Plaintiff's Motion, deny Defendant's
Motion, and remand the case to the Commissioner under
sentence four of 42 U.S.C. § 405(g). Defendant filed an
Objection  to the R&R on June 26, 2019. Plaintiff
filed a Response  on July 1, 2019.
Court reviews objections to a Magistrate Judge's R&R
on a dispositive motion de novo. 28 U.S.C. §
objects to the R&R's recommendation to remand on the
grounds that the ALJ erred in giving great weight to the
non-examining consultative opinion of Dr. George Starrett.
The Magistrate Judge explained:
As to psychological issues, the ALJ considered the
non-examining consultative opinion of Dr. George Starrett
dated May 20, 2015, and accorded his opinion “great
weight.” The ALJ also considered the opinions of
Plaintiff's treating psychologist, Dr. Fachting, rendered
on May 7 and June 15, 2015, and February 10 and 21, 2017, and
gave Dr. Fachting's opinions less weight than Dr.
Starrett's. Dr. Fachting's opinions were based on his
treatment of Plaintiff and the attendant extensive records
comprising multiple exhibits in the record. The Commissioner
argues that the ALJ did not err in giving great weight to the
nonexamining consultative opinion because his treatment
comported with the Sixth Circuit standards stated in
Kepke v. Comm'r of Soc. Sec., 636 Fed.Appx. 625,
632 (6th Cir. 2016). The Court in Kepke held that
Blakely v. Comm'r of Soc. Sec., 581 F.3d 399,
409 (6th Cir. 2009), did not set forth a bright-line rule
requiring the ALJ to discount a non-examining source's
opinion that was made without benefit of all the record
medical evidence. Instead, Kepke explained that
“before an ALJ accords significant weight to the
opinion of a nonexamining source who has not reviewed the
entire record, the ALJ must give ‘some indication'
that he ‘at least considered' that the source did
not review the entire record.” Kepke, 636
Fed.Appx. at 632 (quoting Blakely, 581 F.3d at 409).
The Commissioner then states that the “ALJ explicitly
discussed the subsequent records in his decision” and
determined the evidence was not material and wouldn't
alter the RFC findings.
Although the ALJ found the evidence was not material and did
not change his RFC findings, the ALJ did not appear to
consider the fact that the non-examining source, Dr.
Starrett, lacked the benefit of the two years of medical
evidence from 2015 to 2017 when formulating his opinion. In
other words, the medical evidence postdating Dr.
Starrett's opinion was not viewed under the proper
standard as to whether the nearly two years of medical
evidence missing from Dr. Starrett's review should affect
the weight given his opinion by the ALJ. It is hard to
conceive of how nearly two years of medical evidence could be
less than material. I therefore suggest that Plaintiff has
identified an issue requiring resubmission to the
Commissioner to consider the effect the medical evidence
post-dating Dr. Starrett's opinion would have on his
opinion or, better yet, for the Commissioner to procure
updated medical opinions based on more current medical
R&R at 19-20 (internal citations omitted).
parties agree that the Court must use the standard set forth
in Kepke to determine whether the ALJ's decision
to give great weight to Dr. Starrett's opinion is
supported by substantial evidence. “[B]efore an ALJ
accords significant weight to the opinion of a non-examining
source who has not reviewed the entire record, the ALJ must
give ‘some indication' that he ‘at least
considered' that the source did not review the entire
record.” Kepke, 636 Fed.Appx. at 632; see
also Hammett v. Comm'r of Soc. Sec., No.
2:16-CV-12304, 2017 WL 4985642, at *9 (E.D. Mich. Aug. 15,
2017), report and recommendation adopted, No.
16-12304, 2017 WL 4003438 (E.D. Mich. Sept. 12, 2017)
(“[W]hat the Sixth Circuit requires is that the ALJ
acknowledge his awareness that the state agency record
reviewer did not review the entire record, not
merely that the ALJ himself did conduct a full
Objection #1, Defendant argues that the ALJ considered the
fact that Dr. Starrett, who issued his opinion in May 2015,
had not reviewed nearly two years of medical evidence (June
2015 through February 2017) when formulating his opinion.
Defendant maintains that the ALJ's consideration of Dr.
Starrett's limited scope of review is evidenced by its
explanation for affording Dr. Starrett's opinion great
weight: “I accord the above opinion great weight
because the evidence received into the record, after the
initial determination, did not provide any new or material
information that would alter any findings about the
claimant's residual functional capacity.” Tr. 22.
Objection #2, Defendant argues that the ALJ reasonably gave
great weight to Dr. Starrett's opinion notwithstanding
Starrett's review of an incomplete record. According to
Defendant, the ALJ's discussion of the medical evidence,
coupled with its finding that such evidence did not support
the medical opinion of Plaintiff's treating psychologist,
Dr. Fachting, shows that the ALJ had good reasons for
affording more weight to Dr. Starrett's opinion which was
more consistent with the record than the opinion of Dr.
Court finds Defendant's objections unpersuasive.
Kepke instructs this Court to review the record for
“some indication that the ALJ subjected [the
non-examining] opinion to scrutiny.” Kepke,
636 Fed.Appx. at 632. Here, the ALJ's brief explanation
as to why it accorded Dr. Starrett's opinion great
weight-that the evidence received between June 2015 and
February 2017 did not include material information that would
change its RFC finding-does not establish that the ALJ
subjected Dr. Starrett's opinion to scrutiny. To the
contrary, the explanation merely shows that the ALJ assessed
the materiality of the medical evidence excluded from Dr.
Starrett's review and speculated as to the effect it may
have had on Dr. Starrett's opinion. Implicit in the
ALJ's conclusion that the medical evidence did not
provide any material information that would alter its RFC
finding is the improper assumption that the evidence would
have had no impact on Dr. Starrett's opinion had Starrett
reviewed such evidence.
Court agrees with the Magistrate Judge that it is hard to
conceive of how nearly two years of medical evidence could
have affected neither Dr. Starrett's opinion nor the
weight accorded to that opinion. The Court further agrees
with the Magistrate Judge that the prudent course of action
is to remand to the Commissioner so ...