United States District Court, E.D. Michigan, Southern Division
& ORDER (1) OVERRULING COMMISSIONER’S OBJECTIONS
(DKT. 13), (2) ACCEPTING THE RECOMMENDATION
OF THE MAGISTRATE JUDGE (DKT. 12), (3) DENYING
COMMISSIONER’S MOTION FOR SUMMARY JUDGMENT
(DKT. 11), (4) GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT (DKT. 8), AND REMANDING THIS
MATTER FOR FURTHER PROCEEDINGS UNDER SENTENCE FOUR OF 42
U.S.C. § 205(G)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
Donald Paul Powell appeals from the final determination of
the Commissioner of Social Security that he is not entitled
to Disability Insurance Benefits under Title II of the Social
Security Act. The matter was referred to Magistrate Judge R.
Steven Whalen for a Report and Recommendation
(“R&R”). The parties filed cross-motions for
summary judgment (Dkts. 8, 11), and Magistrate Judge Whalen
issued an R&R recommending that the Court grant
Powell’s motion for summary judgment and deny
Defendant’s motion for summary judgment (Dkt. 12).
Defendant filed objections to the R&R (Dkt. 13), Powell
filed a response (Dkt. 14), and Defendant filed a reply brief
reasons that follow, the Court overrules Defendant’s
objections and accepts the recommendation contained in the
magistrate judge’s R&R. Powell’s motion is
granted, and Defendant’s motion is denied. This matter
is remanded to the administrative law judge for further
Court reviews de novo those portions of the R&R to which
a specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Under 42 U.S.C. §
405(g), this Court’s “review is limited to
determining whether the Commissioner’s decision
‘is supported by substantial evidence and was made
pursuant to proper legal standards.’” Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir.
2010) (quoting Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007)). “Substantial
evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.’” Lindsley v. Comm’r of
Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
determining whether substantial evidence exists, the Court
may “look to any evidence in the record, regardless of
whether it has been cited by the [Administrative Law Judge
(“ALJ”)].” Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).
“[T]he claimant bears the burden of producing
sufficient evidence to show the existence of a
disability.” Watters v. Comm’r of Soc. Sec.
Admin., 530 F. App’x 419, 425 (6th Cir. 2013).
makes three objections to the R&R. First, he argues that
the magistrate judge erred by finding substantial evidence
did not support the ALJ’s opinion that Powell’s
treating-physician’s opinion was entitled to only
partial weight. Second, he argues that the magistrate judge
erred by considering the possible effect of the ALJ’s
RFC finding on a future application for benefits. And,
finally, he argues that the magistrate judge erred by finding
Powell’s subjective complaints were not inconsistent
with the record. The Court will address each argument in
argues that the magistrate judge erred by finding substantial
evidence did not support the ALJ’s opinion that
Powell’s treating-physician’s opinion was
entitled to only partial weight. Obj. at 2. Powell argues
that the magistrate found correctly that the ALJ failed to
give good reasons for assigning only partial weight to Dr.
Michael Martone’s opinion. Resp. at 1. Powell has the
better part of the argument.
treating-physician rule provides for the amount of deference
a decision-maker must give to the opinions of a
claimant’s treating physician. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009). The regulations define medical opinions as,
“statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite [the]
impairment(s), and [the claimant’s] physical or mental
restrictions.” 20 C.F.R. §
404.1527(a)(2). The treating source’s opinion must
be given “controlling weight” if the 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.”
Id. § 404.1527(c)(2).
ALJ does not give the treating physician’s opinion
controlling weight, the ALJ must (i) determine how much
weight to assign to the opinion, and (ii) support its
determination of how much weight to give with “good
reasons.” See Friend v. Comm’r of Soc.
Sec., 375 F. App’x 543, 550 (6th Cir. 2010);
Smith v. Comm’r of Soc. Sec., 482 F.3d 873,
875 (6th Cir. 2007). In declining to give less than
controlling weight to a treating physician’s opinion,
the ALJ must consider (1) “the length of the treatment
relationship” (2) “the frequency of examination,
” (3) “the nature and extent of the treatment,
” (4) the “supportability of the opinion, ”
(5) the “consistency . . . with the record as a whole,
” and, (6) “the specialization of the treating
source.” Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004); see also 20
C.F.R. § 404.1527(c)(2) (outlining factors to be applied
in the event a treating physician’s opinion is not
given controlling weight). The ALJ’s reasons 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.’” Rogers, 486 F.3d at 242
(quoting SSR 96-2p, 1996 WL 374188, at *5). A failure to
sufficiently identify those reasons or how those reasons
affected the ALJ’s consideration of the treating-source
opinion “denotes a lack of substantial evidence, even
where the conclusion of the ALJ may be justified based upon
the record.” Id. at 243.
Dr. Martone filled out a physical medical source statement
describing Powell’s limitations. AR 440. He found that
in a competitive work environment, Powell was limited to
sitting or standing for only ten minutes at a time for a
maximum of two hours in an eight-hour workday. AR 441. He
also found that Powell would need to walk at least ten
minutes every hour and would need unscheduled breaks three to
four times a day for up to twenty minutes (due to his muscle
weakness and pain). Id. He noted that Powell could
only use his dominant hand and arm for approximately forty
percent of the workday. AR 442. When asked how much Powell
would likely be “off task” at work, Dr. Martone
indicated more than twenty-five percent of the time and that
he would miss four days of work a month. AR 443. The ALJ gave
Dr. Martone’s opinion only partial weight. AR 15.
discounted Dr. Martone’s opinion based on a note at the
top of the statement. In the ...