Dotson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOHNNY LEE DOTSON, Case No. 1:20-cv-405

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Johnny Lee Dotson brings this action pursuant to 42 U.S.C. § 405(g) for judicial

review of the final decision of the Commissioner of Social Security (“Commissioner”) denying

his application for disability insurance benefits (“DIB”). This matter is before the Court for

disposition based upon the parties’ full consent (Doc. 6, 7) and on plaintiff’s Statement of Errors

(Doc. 16), the Commissioner’s response in opposition (Doc. 19), and plaintiff’s reply (Doc. 22).

I. Procedural Background

Plaintiff protectively filed his application for DIB in January 2017, alleging disability

since October 2, 2016, due to right shoulder pain; hip pain, possible hip replacement required;

and chronic obstructive pulmonary disease (“COPD”). The application was denied initially and

upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing

before administrative law judge (“ALJ”) William Diggs, on February 11, 2019. Plaintiff and a

vocational expert (“VE”) appeared and testified at the ALJ hearing. On March 7, 2019, the ALJ

issued a decision denying plaintiff’s DIB application. This decision became the final decision of

the Commissioner when the Appeals Council denied review on April 9, 2020.

II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).

The impairment must render the claimant unable to engage in the work previously performed or

in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §

423(d)(2).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation

process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or

mental impairment – i.e., an impairment that significantly limits his or her

physical or mental ability to do basic work activities – the claimant is not

disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the

listings in Appendix 1 to Subpart P of the regulations and meets the duration

requirement, the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her

past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not

disabled. If the claimant cannot make an adjustment to other work, the claimant

is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four

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steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548

(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to

perform the relevant previous employment, the burden shifts to the Commissioner to show that

the claimant can perform other substantial gainful employment and that such employment exists

in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999).

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. The [plaintiff] meets the insured status requirements of the Social Security Act

through December 31, 2019.

2. The [plaintiff] has not engaged in substantial gainful activity since October 2,

2016, the alleged onset date (20 CFR 404.1571 et seq.).

3. The [plaintiff] has the following severe impairments: osteoarthrosis and

chronic obstructive pulmonary disease (20 CFR 404.1520(c)).

4. The [plaintiff] does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments in 20

CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,

404.1526).

5. After careful consideration of the entire record, [the ALJ] finds that the

[plaintiff] has the residual functional capacity to perform sedentary work as

defined in 20 CFR 404.1567(a) except that he is further limited to occasionally

stooping, crouching, and climbing ramps and stairs; frequently balancing and

kneeling; never crawling or climbing ladders, ropes, or scaffolds; avoiding more

than frequent exposure to fumes, odors, dusts, gases, and poor ventilation; and

avoiding all exposure to workplace hazards such as dangerous machinery and

unprotected heights.

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6. The [plaintiff] is unable to perform any past relevant work (20 CFR

404.1565).1

7. The [plaintiff] was born [in] . . . 1970 and was 45 years old, which is defined

as a younger individual age 45-49, on the alleged disability onset date (20 CFR

404.1563).

8. The [plaintiff] has a limited education and is able to communicate in English

(20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable

job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the [plaintiff]’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the [plaintiff] can perform (20 CFR 404.1569 and 404.1569(a)).2

11. The [plaintiff] has not been under a disability, as defined in the Social

Security Act, from October 2, 2016, through the date of this decision (20 CFR

404.1520(g)).

(Tr. 30-35).

C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §

405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

1Plaintiff’s past relevant work was as an auto body repairer and an auto body painter, both of

which are medium, skilled positions. (Tr. 34, 65).

2 The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the

requirements of representative sedentary, unskilled occupations such as a charge accounts clerk (60,000

jobs in the national economy); an order clerk (70,000 jobs in the national economy); and an inspector

(70,000 jobs in the national economy). (Tr. 35, 67-68).

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Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229

(1938)). 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). In

deciding whether the Commissioner’s findings are supported by substantial evidence, the Court

considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the

disability determination. Even if substantial evidence supports the ALJ’s conclusion that the

plaintiff is not disabled, “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.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was

otherwise supported by substantial evidence where ALJ failed to give good reasons for not

giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. The medical evidence

Plaintiff was treated by Dr. Brian Crellin, D.O., beginning in June 2015 for right shoulder

pain. (Tr. 278-83). Plaintiff reported radiating pain that he rated as 6/10 on the analog pain

scale. (Tr. 279). Plaintiff informed Dr. Crellin that he painted cars for a living and was having

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difficulty holding his arm up due to pain. (Id.). Prior treatments for the pain included a home

exercise program (HEP), Tylenol, rest, pain patches, and topical ointment. (Id.). X-rays showed

degenerative joint disease of the “a.c. (acromioclavicular) joint” and a superior humeral head

avascular necrosis (AVN)3 “encompassing approximately 5-10%.” (Tr. 282). The impression

was primary localized osteoarthrosis of the shoulder region and AVN of the humeral head. (Id.).

A joint injection was administered at that visit, and Dr. Crellin recommended that plaintiff be

followed to determine whether the injection helped, with follow-up to include an MRI to

determine the extent of the AVN if an injection did not help.

At plaintiff’s next visit in July 2015, plaintiff reported that his symptoms were “50%

better” after the injection. (Tr. 275). He rated as pain level as 5/10. (Id.). Dr. Crellin diagnosed

right shoulder a.c. joint degenerative disc disease; right shoulder impingement syndrome, rule

out rotator cuff tear; and right humeral head AVN. (Id.). Dr. Crellin recommended that an MRI

be performed, noting that plaintiff had “gone through extensive nonoperative treatment with ice,

home therapy program, steroid injection, modified activities [and] NSAIDs.” (Tr. 277). In

August 2015, plaintiff rated his pain as 7/10. (Tr. 272). MRI results showed “severe

glenohumeral degenerative changes with AVN superior humeral head and degenerative laberal

tearing with extensive subchondral cysts.” (Tr. 273). The plan was to administer an intra-

articular steroid injection, try a prescription level “MOBIC” (a NSAID), and continue the use of

heat and ice. (Tr. 274). In November of 2015, plaintiff was “doing worse” and continued to

struggle with pain and dysfunction. (Tr. 270). Dr. Crellin noted he had “severe” arthritis and

3 “Avascular necrosis is the death of bone tissue due to a lack of blood supply.” See

https://www.mayoclinic.org/diseases-conditions/avascular-necrosis/symptoms-causes/syc-20369859 (last

visited July 15, 2021).

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stable AVN. (Tr. 270). He also noted that plaintiff had tried “extensive” nonoperative

treatment, including anti-inflammatories and steroid injections, and Dr. Crellin did not think

plaintiff would obtain significant relief from therapy. (Id.). Dr. Crellin referred plaintiff to his

shoulder specialist partner, Dr. Andrew Shafik Islam, M.D., to see if Dr. Crellin had missed

anything and to learn if other therapies could be offered to plaintiff. (Tr. 271).

Plaintiff consulted with Dr. Islam, an orthopedic surgeon, in November 2015. (Tr. 428-

32). Plaintiff reported a multiyear history of achy right shoulder pain that was worse with

activity, including overhead activities, and that also occurred at night. (Tr. 428). Dr. Islam

interpreted MRI results as showing evidence of AVN within the humeral head as evidenced by

“numerous cuts consistent with a large lesion” and “degenerative changes within the glenoid.”

(Tr. 431). The assessment was AVN of the right shoulder (new). (Id.). Dr. Islam agreed with

Dr. Crellin’s recommendation that plaintiff receive a steroid injection. (Tr. 431).

On follow-up with Dr. Crellin for his shoulder pain in December 2016, plaintiff reported

his pain level was 8/10. (Tr. 263). Plaintiff was interested in pain management and right

shoulder replacement surgery, which plaintiff had to postpone “due to some current lifestyle

changes.” (Id.). Dr. Crellin noted prior treatment had included steroid injections, anti-

inflammatories, ice/heat, and modified activity. (Id.). X-rays showed the AVN remained stable

with moderate to severe cystic changes to the glenoid. (Id.). Dr. Crellin assessed right shoulder

pain of unspecified chronicity, AVN of the right humeral head, and right glenohumeral arthritis.

(Tr. 265). A steroid injection was administered in plaintiff’s right shoulder, medications were

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prescribed, and Dr. Crellin referred plaintiff to pain management “until he is ready to get his

shoulder replaced.” (Id.).

Plaintiff was also treated for bilateral hip pain during this same time period. Dr. Crellin

noted in his December 2016 report that plaintiff had recently been diagnosed with AVN of the

bilateral hips by his primary care physician, Dr. Paula Ackerman, D.O. (Tr. 265). In August

2016, plaintiff complained to Dr. Ackerman of low back pain that had begun approximately two

months earlier. (Tr. 532). Plaintiff reported the pain level was 9/10. (Tr. 533). Dr. Ackerman

assessed sacroiliac pain and bilateral low back pain without sciatica; she prescribed oral steroids

and a muscle relaxant; and she recommended a home exercise program trial. (Tr. 532-37). An

MRI of plaintiff’s pelvis performed in September 2016 showed chronic appearing extensive

AVN of the hips, left greater than the right; minimal narrow edema in each femoral neck; and

small left hip joint effusions. (Tr. 368). After plaintiff did not show for an appointment on

September 8, 2016, Dr. Ackerman called plaintiff due to a concern of AVN as shown on the

imaging results and the need for further follow-up. (Tr. 553-54).

Plaintiff saw orthopedist Dr. Marc Wahlquist, M.D., in October 2016 on referral by Dr.

Ackerman for left hip pain and back pain of five months’ duration. (Tr. 590-97). Plaintiff rated

the pain as 6/10, he complained that the pain was worse on the left, and he reported it “[h]urts all

the time but [is] worse with walking.” (Tr. 590-91). Imaging results showed bilateral hip AVN

with fragmentation of the articular surface. (Tr. 594). Dr. Wahlquist diagnosed plaintiff with

bilateral hip pain and AVN of both hips. (Id.). Treatment options discussed were “cane, time,

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nsaids, injections and THA (total hip arthroplasty).” (Tr. 595). Plaintiff did not want to pursue

any treatment options at that time, but Dr. Wahlquist recommended “at least a cane in the

opposite hand of whatever hip is hurting that day,” and he recommended that plaintiff see

another physician when he was “ready to proceed with THA for [a] possible bilateral procedure.”

(Id.).

In January 2017, plaintiff consulted with pain management specialist Dr. Gururau

Sudarshan, M.D., on referral from Dr. Crellin with complaints of constant and throbbing pain in

his right shoulder and secondary complaints of pain in both hips. (Tr. 223-29). Plaintiff had

been administered numerous steroid injections in his right shoulder and had been prescribed

Tramadol, which he reported was “not really helpful at all.” (Tr. 223). Plaintiff reported his

pain was relieved by narcotic medications and heat, and he rated it as 6/10. (Id.). Plaintiff

reported his pain was aggravated by lifting, bending, twisting, pushing, and pulling. (Id.). He

reported that his shoulder pain moderately limited his activities. (Id.). It was exacerbated by

exertion, lifting, pulling, changing positions, extension, forward elevation, abduction/external

rotation, and internal rotation. (Id.). His condition, which had been treated to date with “high

dose opioids,” showed no long-term improvement as to either pain or function. (Tr. 228). He

was assessed as a “complex patient to handle” from a pain management perspective because he

had developed a tolerance to opioids and suffered from the original pain condition and

“significant side effects,” including opioid induced constipation and opioid hyperalgesia. (Id.).

The plan was to try to decrease plaintiff’s opioid dependency, try non-opioid medications even

9

though their efficacy had been hampered by the use of high dose opioids, and try local topical

treatments. (Id.). There is also a notation to “[c]onsider [the] left hip.” (Id.).

When seen two weeks later, plaintiff reported right shoulder and bilateral hip pain. (Tr.

230). He rated his right shoulder pain as 7/10. (Id.). Physical examination findings were

essentially normal except for tenderness at the lumbar spine and facet joint and a positive straight

leg raise on the right. (Tr. 231-33). Dr. Sudarshan assessed plaintiff with a moderate to severe

chronic pain condition that was controlled with “stable doses of opioids,” and he opined that

plaintiff had “shown [a] response to opioids with a decrease in the pain level.” (Tr. 236). He

reported that plaintiff “has had an extensive trial with non-opioid medications, conservative and

interventional treatment options and continues to complain of moderate to severe pain.” (Id.).

He reported that plaintiff’s opioid dose had not been increased for several months and no clinical

side effects were noted based on the examination. (Id.). He added a pain cream and a TENs unit

to plaintiff’s treatment plan. (Id.). In February 2017, plaintiff complained of right shoulder and

right hip pain. (Tr. 238). He reported his pain was 9/10 and noted his Tramadol was “not very

helpful at all.” (Id.). A left hip injection was scheduled. (Tr. 244).

When seen at Cincinnati Pain Physicians in March 2017, plaintiff reported a recent right

hip injection and his last few right shoulder injections, which had been helpful in the past,

provided no relief. (Tr. 339). He complained that standing and walking caused pain in the groin,

he could not sleep due to the pain, and he could not have surgery because he was going through a

divorce and had no one to care for him after the surgery. (Tr. 339). On examination, he

exhibited decreased range of motion of both hips. (Tr. 338). Plaintiff opted to hold off on

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surgery and continue pain management, his opioid prescription was changed, and voltaren gel

was added to his medications. (Tr. 337, 340).

In April 2017, plaintiff reported to Dr. Wahlquist that his right hip pain had increased

since he had received a cortisone injection at Cincinnati Pain Management. (Tr. 605-10). He

complained of increased difficulty with prolonged walking/standing and using stairs and

difficulty sleeping due to pain. (Tr. 605). Plaintiff had obtained some relief from injections for

AVN in his shoulders, which Dr. Crellin continued to treat. (Id.). Plaintiff rated his current pain

level as 6/10. His gait was antalgic with tenderness of the hips and reduced range of motion with

pain. (Tr. 609). Dr. Wahlquist referred plaintiff to Dr. Sorger for a surgical THA evaluation and

opined that plaintiff “may be a good candidate for the arthrosurface joint replacement system”

for the shoulder. (Tr. 610).

Orthopedic surgeon Dr. Joel Sorger, M.D., evaluated plaintiff on May 9, 2017. (Tr. 390-

93). Plaintiff reported moderate to severe bilateral hip pain that was worse with activity and

mildly better with rest and pain in the right shoulder joint. (Tr. 390). On examination, plaintiff

had reduced strength and range of motion of the hips, pain in the groin with motion, and an

antalgic gait. (Tr. 392). Dr. Sorger diagnosed plaintiff with bilateral hip pain and AVN of the

left hip. (Tr. 393). Plaintiff consented to undergo a total hip arthroplasty. (Id.).

Dr. Sorger performed a total left hip arthroplasty on June 19, 2017. (Tr. 485-86). Dr.

Sorger saw plaintiff for follow-up on September 14, 2017. (Tr. 395-96). Plaintiff reported

intermittent pain over the lateral aspect of the left hip. (Tr. 395). He had returned to work but

had “weakness within his left leg.” (Id.). Plaintiff had completed one month of physical therapy.

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(Id.). On physical examination, the incision was well-healed with no signs of erythema or

infection, the hip was stable, and sensation was intact. (Tr. 396). Plaintiff had mild pain to

palpation laterally over the hip and reduced strength on flexion. (Id.). Imaging results showed

the implant was “in good position” and “well aligned with no evidence of loosening.” (Tr. 402).

Treatment options were discussed regarding plaintiff’s “ongoing pain,” including “getting him

back into physical therapy to help work on his strength.” (Id.). Plaintiff indicated he “would like

to give it some time to see if it gets better on its own.” (Id.). The plan was to “discuss possible

hip replacement on the right side [during] his next visit in 3 months with a new x-ray.” (Id.).

Plaintiff consulted with Dr. Wahlquist by telephone in August 2018 and saw Dr.

Wahlquist in September 2018 for bilateral hip follow-up. (Tr. 622-27, 615-20). Plaintiff

reported he was still having pain and discomfort since his surgery and his pain “has never

improved since his surgery.” (Tr. 615, 622). Plaintiff reported pain that radiated down the side

of his left hip to the inside of his left thigh; his pain was worse in the morning and was

aggravated when he tried to get out of bed; he had numbness and tingling radiating down to his

thigh; and he walked and performed stretching exercises and but did not perform a recommended

home exercise program. (Id.). He rated his current pain level as 7/10. (Id.). X-rays showed a

“[w]ell positioned implant in left hip without si[]gns of loosening and sclerosis of right femoral

head consistent with abduction.” (Tr. 619, 626). When seen in September 2018, plaintiff

ambulated with a limp but did not use a cane. (Tr. 626). The left hip was well-healed but

examination showed diffuse tenderness over the groin, decreased sensation at the lateral thigh,

and “good” hip range of motion but “weak” hip flexion, abduction, and adduction. (Id.). The

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right hip showed good range of motion but weak hip flexion, abduction, and adduction. (Id.).

Dr. Walhquist opined:

Given his poor outcome with his left THA I am reluctant to recommend right

THA. I think some of his symptoms are related more to hip weakness at this time.

I am recommending PT for him. He isn’t using a cane today and I advised him to

get one to unload his hip a little bit.

(Tr. 627).

Plaintiff also consulted with Dr. Islam in August 2018 for evaluation of bilateral shoulder

pain, greater on the right than the left, on referral from Dr. Crellin for possible shoulder

replacement surgery. (Tr. 411-15). Dr. Islam noted plaintiff had been treated with anti-

inflammatories, physical therapy, and injections. (Tr. 411). However, plaintiff had not obtained

any significant relief of his symptoms and his pain had been “progressively worsening” and “had

become quite severe.” (Id.). X-rays of both shoulders showed evidence of some degenerative

changes consistent with AVN of both shoulders. (Tr. 414). Dr. Islam diagnosed plaintiff with a

tear of the right rotator cuff. (Id.). He discussed treatment options with plaintiff, including

shoulder surgery after imaging results were obtained, and referral to pain management. (Id.).

Plaintiff wanted to wait on surgery and Dr. Islam deferred to pain management for possible nerve

ablation before considering surgery. (Tr. 417-18).

A CT scan of the right shoulder performed in September 2018 disclosed AVN of the

humeral head, moderate osteoarthritis of the glenohumeral joint4, severe osteoarthritis of the

acromioclavicular joint, and a small SLAP (superior labrum, anterior-posterior5) tear. (Tr. 633-

4 Next to this impression is a handwritten notation that reads, “looks severe on my review.”

5 See https://medical-dictionary.thefreedictionary.com/SLAP+tear.

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34). Dr. Islam reviewed the CT scan in September 2018 and reported that it showed an intact

rotator cuff, severe arthritis in the AC joint, and severe osteoarthritis of the glenohumeral joint.

(Tr. 417-18). Dr. Islam diagnosed AVN of the right humeral head; right glenohumeral arthritis;

superior glenoid labrum lesion of right shoulder, initial encounter; and arthrosis of the right

acromioclavicular joint. (Tr. 417). Dr. Islam recommended a potential total shoulder

replacement with distal clavicle resection; however, he deferred to the recommendation of

plaintiff’s pain management physician that a nerve ablation first be performed and surgical

intervention be considered only if that procedure was unsuccessful. (Tr. 418).

Plaintiff attended physical therapy between September 17, 2018 and October 4, 2018 at

Summit Physical Therapy. (Tr. 298-310). At his initial evaluation, plaintiff reported that he had

four to five weeks of home care after his surgery in June of 2017 but did not have any further

physical therapy on an outpatient basis because he did not see significant improvement in his

symptoms since his surgery. (Tr. 309). Plaintiff complained of significant pain which he rated

as 10/10 at its worst with “very short periods in which he does not have significant pain.” (Id.).

He complained of hip pain “particularly with movement and activity” and his score on the

“Lower Extremity Functional Scale” was low. (Id.). Plaintiff reported that he had been told the

source of his continued symptoms was unclear because x-rays “show proper healing and

alignment.” (Id.). The evaluation noted that plaintiff “has right AVN and it has been

recommended that he undergo total hip replacement for this side as well but he is reluctant due to

lack of improvement with the left hip.” (Id.). Plaintiff had a “moderate antalgic gait” and

bilateral hip range of motion was restricted with pain. (Id.). Bilateral strength was reduced to

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4/5 on flexion and 3/5 on abduction. (Id.). Plaintiff was assessed as “[s]tatus post left total hip

replacement with continued complaints of pain and functional limitations” and as showing

“significant weakness that may benefit from a formal physical therapy program to improve

strength, gait and function.” (Id.). The short terms goals established were to initiate a home

exercise program; improve his sit-to-stand ability; show improvement in plaintiff’s ability to

sleep; and show ability in plaintiff’s ability to put his shoes and socks on. (Tr. 310). The long

term plan was to show improvement in the ability to go up and down steps; show significant

improvement in tolerance to standing and walking; gain the ability to single-leg balance for 15

seconds; and have no restrictions in getting in and out of a car and up/down from lower surfaces.

(Id.). The recommendation was that plaintiff be seen approximately twice a week for

approximately 8 to 10 weeks to improve range of motion, flexibility, and strength. (Id.).

On September 20 and 27, 2018, plaintiff reported his overall condition was unchanged.

(Tr. 304, 306). He reported difficulty in prolonged standing and walking. (Id.). He had no new

complaints since his initial evaluation but reported he had been “sore lately,” which he attributed

to performing the exercises. (Id.). On October 1, 2018, plaintiff reported increased hip pain

after mowing his lawn. (Tr. 302). Plaintiff reported continued difficulty with prolonged walking

and standing and difficulty with “daily activities/yard work.” (Id.). On October 4, plaintiff

reported that he had “been more active lately and this may have caused some increase in left

anterior thigh symptoms,” and he was “very sore the day following therapy but feels that he may

be some improved overall.” (Tr. 300). Plaintiff reported difficulty with standing, walking, and

dressing/personal care. (Id.). Plaintiff was discharged from physical therapy on November 6,

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2018, when he “no-showed” his next two scheduled appointments and did not call to reschedule.

(Tr. 299). Plaintiff had met his short-term goal of initiating a home exercise program, but the

physical therapist was unable to reassess whether plaintiff had met his goals in any other areas.

(Id.). The physical therapist assessed his rehabilitation potential and prognosis as “good.” (Id.).

Plaintiff began treating with pain management specialist Dr. Vishal Patel, M.D., at

Premier Pain Treatment Institute beginning in September 2018. (Tr. 311-12). Plaintiff

complained of shoulder pain and of bilateral hip pain that he rated as 5/10. (Tr. 311). Plaintiff

reported that he obtained moderate relief with his current pain regimen and that “higher norco

dosing has been helping him significantly.” (Tr. 312). Plaintiff had not attended physical

therapy recently but he continued to do home exercises. (Tr. 313). The plan was to treat

plaintiff’s right hip with medication and consider a nerve block in the future if plaintiff was open

to that. (Tr. 315). Dr Patel noted: “Patient is surgical candidate but wants to hold off after

continued pain with left hip replacement” (Id.). In October 2018, plaintiff reported that pain

medications were helping but there were “patches where he doesn’t get relief.” (Tr. 317). He

rated his pain as 7/10. (Id.). The functional assessment noted mild joint swelling, it was “[v]ery

painful” to go up or down stairs,” and plaintiff could “[m]ostly walk without support or

assistance.” (Id.).

In November 2018, Dr. Patel noted that plaintiff’s “orthopedic surgeons states (sic) that

he could have right shoulder and right hip replacement but do not recommend it because of

continued pain after left hip replacement.” (Tr. 313). Plaintiff rated his pain as 5/10 at that visit.

(Tr. 312). Plaintiff was functionally assessed with mild joint stiffness and swelling; going up or

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down stairs was moderately painful; walking on flat surfaces was mildly painful; and putting on

or taking off socks was slightly difficult. (Id.). Dr. Patel noted that plaintiff “is [a] surgical

candidate but wants to hold off after continued pain with left hip replacement.” (Tr. 315). Dr.

Patel continued to prescribe medications and suggested that a nerve block be considered in the

future. (Id.).

E. Specific errors

On appeal, plaintiff alleges two assignments of error: (1) the ALJ erred by failing to

properly evaluate plaintiff’s subjective complaints and, in turn, plaintiff’s functional limitations;

and (2) the ALJ and the Appeals Council erred by failing to give proper weight to the opinion of

plaintiff’s treating orthopedist, Dr. Andrew Shafik Islam, M.D. (Docs. 16, 22).

1. Consideration of Dr. Islam’s RFC assessment (Second assignment of error)

Plaintiff alleges that the ALJ and Appeals Council erred by failing to consider and give

appropriate weight to the physical RFC assessment completed by Dr. Islam almost four weeks

after the ALJ hearing. (Doc. 16 at PAGEID 710; see Tr. 11-18). The ALJ originally granted

plaintiff an extension of time until February 25, 2019 to submit Dr. Islam’s assessment (Tr. 54),

which the ALJ later extended to March 13, 2019 (Tr. 40). The ALJ asked counsel that if plaintiff

decided not to submit any additional evidence, “please advise this office immediately to avoid

further delay in deciding your case.” (Tr. 40). Plaintiff subsequently advised the ALJ’s office

by telephone that Dr. Islam would not be completing an assessment. (Tr. 10). However, Dr.

Islam did complete an assessment dated March 7, 2019. (Tr. 11-18). Plaintiff submitted the

assessment to the ALJ with a letter that was also dated March 7, 2019. (Id.). The ALJ issued his

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written decision that same date. (Id.). Plaintiff acknowledges that the ALJ issued his decision

before the revised deadline for submitting new evidence expired based upon plaintiff’s

“counsel’s communication to the ALJ that Dr. Islam would not be executing the form.” (Doc. 16

at PAGEID 710) (emphasis added). Plaintiff nonetheless suggests that the ALJ erred by failing

to consider the assessment because plaintiff submitted the assessment before the extended

deadline for submitting additional evidence expired; a treating physician’s statement “would be

important for any decision-maker”; and the Appeals Council erred by finding the completed

form would not change the outcome of the ALJ’s decision “when the limitations stated in the

form are clearly disabling.” (Id.; Doc. 22 at PAGEID 770-71).

Defendant argues that Dr. Islam’s assessment cannot be considered in determining

whether a remand is appropriate under sentence four of 42 U.S.C. § 405(g) because the opinion

was not before the ALJ when he issued his decision. (Doc. 19 at PAGEID 757). Defendant

contends that the Appeals Council’s decision is not reviewable. (Id. at PAGEID 758).

Defendant argues that evidence submitted for the first time to the Appeals Council can be

considered only to determine whether remand is appropriate under sentence six of § 405(g), and

plaintiff has waived this argument by failing to raise it in his statement of errors. (Id.).

Defendant argues that even if plaintiff did not waive a sentence six argument, the argument

would be futile because the standard for consideration of new evidence under sentence six is not

met here. (Id.).

Plaintiff has not shown that the ALJ erred by failing to consider Dr. Islam’s assessment.

The ALJ granted plaintiff an extension of time until March 13, 2019 to submit additional

18

evidence. (Tr. 40). The ALJ directed counsel to advise his office immediately if plaintiff

decided not to submit any additional evidence. (Id.). Plaintiff’s counsel admittedly informed the

ALJ on March 7, 2019 that Dr. Islam would not be submitting an assessment (Tr. 10), and the

ALJ issued his decision on that same date based on counsel’s communication (Doc. 16 at

PAGEID 710). Plaintiff has not cited any authority to show the ALJ erred by relying on

counsel’s representation that an assessment would not be forthcoming to issue a decision prior to

expiration of the revised deadline based on that representation.

Further, plaintiff cannot challenge the Appeals Council’s decision in connection with his

request for reversal and remand of the ALJ’s decision under sentence four. When the Appeals

Council declines review, as it did in this case, it is the decision of the ALJ that is subject to

appellate review. Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993). The Court may not

consider evidence presented for the first time to the Appeals Council in deciding whether to

uphold, modify, or reverse the ALJ’s decision. Id. at 696. See also Cline v. Commissioner of

Social Security, 96 F.3d 146, 148 (6th Cir. 1996). Accordingly, the Court may not consider Dr.

Islam’s assessment in deciding whether to uphold, modify, or reverse the ALJ’s decision under

sentence four.

Further, although the court may remand a case for further administrative proceedings

under sentence six of § 405(g) “if a claimant shows that the evidence is new and material, and

that there was good cause for not presenting it in the prior proceeding,” plaintiff has waived a

sentence six argument in this case.6 Cline, 96 F.3d at 148. Plaintiff cannot pursue a remand

6 Sentence six provides that the district court “may at any time order additional evidence to be taken before

the Commissioner . . . , but only upon a showing that there is new evidence which is material and that there is good

cause for the failure to incorporate such evidence into the record in a prior proceeding. . . .” 42 U.S.C. § 405(g).

19

under sentence six because he failed to raise this argument in his statement of errors. The Sixth

Circuit “has consistently held that arguments not raised in a party’s opening brief, as well as

arguments adverted to in only a perfunctory manner, are waived.” Kuhn v. Washtenaw County,

709 F.3d 612, 624 (6th Cir. 2013) (citing Caudill v. Hollan, 431 F.3d 900, 915 n. 13 (6th Cir.

2005)). See also Rice v. Comm’r of Soc. Sec., 169 F. App’x 452, 454 (6th Cir. 2006) (a

plaintiff’s failure to develop an argument challenging an ALJ’s non-disability determination

amounts to a waiver of that argument). Plaintiff did not raise an argument that Dr. Islam’s

assessment is “new” and “material” evidence that warrants remand under sentence six. Plaintiff

has therefore waived this argument.

Plaintiff’s second assignment of error is overruled.

2. The ALJ’s evaluation of plaintiff’s subjective statements (First assignment of

error)

Title 20 C.F.R. § 404.1529 and Social Security Ruling 16-3p, 2016 WL 1119029, *3

(March 16, 2016) describe a two-part process for evaluating an individual’s subjective statements

about symptoms, including pain.7 First, the ALJ must determine whether a claimant has a

medically determinable physical or mental impairment that can reasonably be expected to

produce the symptoms alleged; second, the ALJ must evaluate the intensity, persistence, and

functional limitations of those symptoms by considering objective medical evidence and other

See also Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (to obtain a remand, the claimant must

show that the evidence is “new” and “material” and that there was good cause for failure to present the evidence at

the hearing).

7 SSR 16-3p, 2016 WL 1119029, which “provides guidance about how [the SSA] evaluate[s] statements

regarding the intensity, persistence, and limiting effects of symptoms,” superseded SSR 96-7p and became

applicable to decisions issued on or after March 28, 2016. See SSR 16-3p, 2017 WL 5180304 (October 25, 2017)

( clarifying applicable date of SSR 16-3p).

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evidence, including: (1) daily activities; (2) the location, duration, frequency, and intensity of

pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,

effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5)

treatment, other than medication, received for relief of pain or other symptoms; (6) any measures

used to relieve pain or other symptoms; and (7) other factors concerning functional limitations

and restrictions due to pain or other symptoms. See also 20 C.F.R. § 404.1529(c)(3). The ALJ’s

assessment of a claimant’s subjective complaints and limitations must be supported by

substantial evidence and be based on a consideration of the entire record. Rogers, 486 F.3d at

247 (internal quotation omitted). The ALJ’s explanation of his decision “must be sufficiently

specific to make clear to the individual and to any subsequent reviewers the weight the

adjudicator gave to the individual’s statements and the reasons for that weight.” Id. at 248.

The ALJ found that plaintiff’s medically determinable impairments could reasonably be

expected to cause his alleged symptoms, but plaintiff’s statements concerning the intensity,

persistence, and limiting effects of his symptoms were not entirely consistent with the medical

and other evidence in the record. (Tr. 32). The ALJ cited three primary reasons for finding that

though there was objective imaging evidence “supporting significant bilateral [] shoulder and

right hip conditions,” the extent of plaintiff’s alleged limitations was not supported by the

remaining evidence. (Tr. 33). First, the ALJ found that “replacement was no longer

recommended for the right shoulder and hip due to ongoing complaints of left hip pain despite

what was an apparently successful left hip replacement.” (Id.). Second, the ALJ found that

plaintiff was “non-compliant with physical therapy and home therapy, instead, preferring to

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pursue helpful opioid therapy,” which suggested his symptoms were not as severe as alleged.

(Id.). Third, the ALJ found that “while the September and October 2018 therapy notes show

increased pain with activity, these records also show that [plaintiff] was able to mow his yard on

a riding mower.” (Id.). The ALJ concluded based on these findings that “the evidence suggests

an ongoing ability to perform sedentary exertional activity.” (Id.). In addition, the ALJ found

that “despite diagnoses of COPD, [plaintiff] continued to smoke, and there are no

hospitalizations or suggestions of exacerbation despite only conservative inhaler therapy.” (Id.).

Plaintiff alleges that the ALJ erred by finding that the intensity, persistence, and

functional limitations of his symptoms was not entirely consistent with the medical and other

evidence of record. (Id. at PAGEID 707-08). Plaintiff contends that the ALJ’s conclusion is not

supported by the record because either (1) the alleged inconsistencies the ALJ cited do not exist;

or (2) the ALJ did not consider the alleged inconsistencies in the context of evidence showing

plaintiff received extensive treatment over a period of years for a progressive disease that

resulted in pain, functional limitations, and surgery to replace his left hip. (Id. at PAGEID 708).

Plaintiff identifies several flaws in the ALJ’s reasoning.

First, plaintiff alleges that the ALJ erroneously discounted his complaints by finding that

“replacement was no longer recommended for the right shoulder and hip due to ongoing

complaints of left hip pain despite what was apparently a successful left hip replacement.” (Doc.

16 at PAGEID 708, citing Tr. 33). Plaintiff contends that the ALJ’s statement apparently refers

to Dr. Patel’s treatment note dated November 20, 2018, which states: “His orthopedic surgeons

states [sic] that he could have right shoulder and right hip replacement but do not recommend it

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because of continued pain after left hip replacement.” (See Tr. 313). Plaintiff alleges that this

treatment note is not inconsistent with his reports of pain and functional limitations but instead

supports his subjective complaints. (Doc. 16 at PAGEID 708).

The ALJ did not reasonably rely on the treating providers’ recommendations against

further surgery to find that plaintiff’s subjective statements were inconsistent with the evidence

of record. According to their treatment notes, plaintiff’s treating physicians recommended that

he not undergo additional surgery for more than one year following his total left hip replacement

surgery in June 2017 because although the left his implant appeared to be stable and well-

positioned, plaintiff continued to complain of ongoing bilateral hip pain and other symptoms

following the surgery. Surgical follow-up notes from Dr. Sorger’s office dated September 2017

note that x-rays showed the left hip implant was “in good position” and was “well aligned with

no evidence of loosening”; however, plaintiff continued to suffer from ongoing pain and

weakness. (Tr. 402). Various treatment options were discussed to address plaintiff’s ongoing

pain, including physical therapy for strengthening. (Id.). Plaintiff opted to “give it some time”

to see if the left hip pain improved “on its own.” (Id.). The plan was to discuss a possible right

hip replacement in three months after a new x-ray was obtained. (Id.). Dr. Sorger did not

characterize plaintiff’s left hip replacement as “successful,” and he did not recommend against

additional surgery in the future based on plaintiff’s current complaints of pain following his left

hip surgery.

Similarly, contrary to the ALJ’s finding, Dr. Wahlquist did not recommend against

further hip surgery based on plaintiff’s continued complaints of pain following a “successful”

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left hip surgery. To the contrary, Dr. Walhquist was “reluctant to recommend” right hip

replacement in September of 2018 due to what he characterized as a “poor outcome” with

plaintiff’s left hip replacement. (Tr. 627) (emphasis added). The left hip was well-healed but

examination showed diffuse tenderness over the groin, decreased sensation in the lateral thigh,

and “good” bilateral hip range of motion but “weak” hip flexion, abduction, and adduction. (Tr.

626). Plaintiff ambulated with a limp but did not use a cane. (Id.). Dr. Wahlquist recommended

physical therapy to increase plaintiff’s hip strength due to weakness, which he thought was the

cause of some of plaintiff’s symptoms, and he advised plaintiff to get a cane. (Tr. 627).

Further, there is no indication that any of plaintiff’s treating providers recommended

against shoulder surgery based on plaintiff’s continued complaints of pain despite “successful”

left hip surgery. To the contrary, shoulder surgery was recommended for plaintiff and the

decision to not proceed with surgery was made only after exploring alternative treatments.

When plaintiff was seen by Dr. Islam on referral from Dr. Crellin in August 2018 for evaluation

of bilateral shoulder pain, Dr. Islam opined that plaintiff was a candidate for right shoulder

replacement surgery. (Tr. 411-18). Dr. Islam reported that plaintiff complained of

“progressively worsening” pain that had become “quite severe.” (Tr. 411). The following

month, Dr. Islam reported that plaintiff had failed treatment with anti-inflammatories, physical

therapy, and injections. (Tr. 416). After reviewing the CT results, Dr. Islam recommended

“total shoulder replacement along with distal clavicle resection at the same time.” (Tr. 418).

However, Dr. Islam concurred with the recommendation of plaintiff’s pain management

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physician and with plaintiff’s decision to “try[] nerve ablation before proceeding with any

surgery,” which Dr. Islam thought was a reasonable plan. (Id.).

No other treating physician recommended against additional surgery because plaintiff

continued to complain of pain following a “successful” left hip replacement. Dr. Patel,

plaintiff’s pain management physician, noted in November of 2018 that plaintiff was a “surgical

candidate but wants to hold off after continued pain with left hip replacement.” (Tr. 315). Dr.

Patel also noted that plaintiff’s orthopedic surgeons recommended against right shoulder and

right hip replacement because plaintiff suffered from “continued pain after left hip replacement.”

(Tr. 313). Dr. Patel suggested instead that a nerve block be considered in the future, and the plan

was to wean plaintiff off opioids as tolerated. (Tr. 315). Dr. Patel, who was not an orthopedist

or a surgeon, did not render an opinion as to whether plaintiff’s left hip surgery was successful

and whether plaintiff should undergo additional surgery.

Thus, the ALJ appears to have misconstrued the record insofar as he found that further

surgery was not recommended for plaintiff due to his continued complaints of pain following a

“successful” left hip replacement. (Tr. 33). No treating physician characterized plaintiff’s left

hip surgery as “successful” or questioned whether further surgery should be considered to

address plaintiff’s continued complaints of pain and other symptoms. To the contrary, Dr.

Wahlquist was “reluctant” to recommend additional surgery because the outcome of the left hip

surgery was “poor.” (Tr. 620). In addition, though he ultimately concurred with a

recommendation by plaintiff’s pain management physician that a nerve ablation be attempted

first, Dr. Islam recommended that plaintiff undergo a total shoulder replacement. (Tr. 418).

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There is no indication that Dr. Islam factored the success of plaintiff’s left hip surgery into his

decision or that he believed surgery was not warranted because plaintiff had continued

complaints of pain and other symptoms. Pain management physician Dr. Patel reported the

recommendations of plaintiff’s treating orthopedists, but he did not make his own

recommendation as to whether additional surgery was warranted. Evidence showing that

plaintiff continued to suffer from bilateral hip and shoulder pain and symptoms following his left

hip surgery, and that surgery to treat his symptoms was an option his treating physicians

continued to explore, does not support the ALJ’s decision to discount plaintiff’s subjective

statements.

Plaintiff alleges that the ALJ also improperly found that his symptoms were not as severe

as alleged because plaintiff was “non-compliant with physical therapy and home therapy,

instead, preferring to pursue helpful opioid therapy.” (Doc. 16 at PAGEID 709, citing Tr. 33).

Plaintiff alleges that in making this finding, the ALJ failed to consider plaintiff’s full treatment

history and the reasons for his treatment choices.

In evaluating whether an individual’s symptoms affect his ability to perform work-related

activities, the ALJ may “consider an individual’s attempts to seek medical treatment for

symptoms and to follow treatment once it is prescribed. . . .” SSR 16-3p, 2016 WL 1119029, at

*8. “Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing

medications, trying a variety of treatments, referrals to specialists, or changing treatment sources

may be an indication that an individual’s symptoms are a source of distress and may show that

they are intense and persistent.” Id. However, “if the frequency or extent of the treatment

26

sought by an individual is not comparable with the degree of the individual’s subjective

complaints, or if the individual fails to follow prescribed treatment that might improve

symptoms, [the ALJ] may find the alleged intensity and persistence of an individual’s symptoms

are inconsistent with the overall evidence of record.” Id. Before finding a claimant’s symptoms

are inconsistent with the evidence based on failure to seek treatment or failure to follow

prescribed treatment, the ALJ must first consider the “possible reasons [the claimant] may not

comply with treatment or seek treatment consistent with the degree of his . . . complaints.” Id.

See also Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 506-07 (6th Cir. 2013) (analyzing

former SSR 96-7p) (an ALJ can discount allegations of debilitating pain based on a conservative

course of treatment, unless the claimant has a good reason for failing to seek more aggressive

treatment).

The Sixth Circuit in Johnson expressed concern over the ALJ’s failure to explore the

reasons the plaintiff had not proceeded with surgery and had participated in physical therapy for

only a limited time period. Id. at 507. The Court explained:

In general, it is appropriate for the ALJ to consider a claimant’s treatment (other

than medication) in evaluating his or her symptoms and pain, see 20 C.F.R. §

404.1529(c)(3)(v), and a claimant must follow prescribed treatment in order to

obtain benefits absent good reason. See 20 C.F.R. § 404.1530. The record,

however, indicates that these were only recommended treatment options. [The]

[n]eurosurgeon . . . opined that Johnson’s surgical outcome “would be

suboptimal” and that surgical intervention might not be the best choice.

Moreover, Social Security Ruling 96-7p strongly suggests that a claimant should

be allowed to explain his or her reasons for not pursuing certain treatment options.

. . .

Id. at 507 (citation omitted). The Court concluded that although the ALJ’s error was harmless,

the “better course” would have been to allow the claimant “the opportunity to explain his

27

choices.” Id.

Here, the ALJ stated that he would expect plaintiff to “follow through with treatment

directives” if his conditions were as severe as plaintiff alleged. (Tr. 33). The ALJ found that

plaintiff “was non-compliant with physical therapy and home therapy” according to treatment

notes. (Tr. 33). However, the evidence does not show that plaintiff failed to comply with

prescribed treatment or treatment directives. The record indicates that physical therapy and

home exercise were two of several treatment options that plaintiff’s treating providers discussed

with him and that plaintiff pursued at various times. For instance, Dr. Sorger discussed

“treatment options regarding his ongoing pain” with plaintiff in September 2017, including

“getting him back into physical therapy to help work on his strength,” but Dr. Sorger also agreed

with plaintiff’s plan to “give it some time to see if it gets better on its own” before obtaining a

new x-ray and discussing possible right hip replacement. (Tr. 402). In addition, Dr. Wahlquist

“advise[d]” plaintiff to proceed with physical therapy in September 2018 (Tr. 620) and noted in

August 2018 that plaintiff did not perform “recommended HEP” (Tr. 615), which indicates these

were only recommended treatment options.

Moreover, the record shows that the ALJ did not consider whether plaintiff had valid

reasons for choosing not to follow these recommendations and to pursue other treatment options.

Plaintiff apparently stopped participating in physical therapy post-surgery due to pain (Tr. 32,

citing Tr. 402); plaintiff did not have additional physical therapy after the initial sessions because

he “failed to see significant improvement in his symptoms” following surgery (Tr. 309); and

plaintiff attended some physical therapy sessions in October-November 2018 but stopped going

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for unexplained reasons. Further, although plaintiff did not participate in physical therapy and

perform recommended home exercises, he walked and performed stretching exercises (Tr. 615);

he continued to pursue numerous other types of treatment for continued bilateral hip and

shoulder pain and symptoms; and he was referred to specialists and to pain management

physicians for consideration of surgical and other treatment options. It was improper for the

ALJ to discount plaintiff’s subjective allegations based on his alleged noncompliance with

physical therapy and home exercise program recommendations without considering plaintiff’s

continued pursuit of treatment for his bilateral hip and shoulder symptoms and the reasons

plaintiff opted to forego certain treatment recommendations in favor of others.

Third, plaintiff alleges that the ALJ erred by finding that his ability to cut grass with a

riding mower suggested that he had “an ongoing ability to perform sedentary exertional activity.”

(Doc. 16 at PAGEID 710). Plaintiff contends that he admittedly is able to sit for limited periods

of time, which is not inconsistent with an ability to “mow grass with a riding lawnmower.” (Id.,

citing Tr. 302, 52-53).

“Although the ability to do household chores is not direct evidence of an ability to do

gainful work” under 20 C.F.R. § 404.1572, “[a]n ALJ may . . . consider household and social

activities engaged in by the claimant in evaluating a claimant’s assertions of pain or ailments.”

Keeton v. Commr. of Soc. Sec., 583 F. App’x 515, 532 (6th Cir. 2014) (quoting Walters v.

Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997)). Here, the ALJ found that although

September and October 2018 therapy notes “show increased pain with activity,” the same

records showed that plaintiff “was able to mow his yard on a riding mower” and thus suggested

29

an “ongoing ability to perform sedentary exertional activity.” (Tr. 33). However, the records do

not include any details about this activity, such as how long it took plaintiff to cut the grass or the

size of the area he mowed, that would shed any light on plaintiff’s ability to perform sustained,

gainful sedentary work activity. See SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)

(“Ordinarily, [RFC] is an assessment of an individual’s ability to do sustained work-related

physical and mental activities in a work setting on a regular and continuing basis.”). Further,

plaintiff reported that his mowing activity “increased his hip pain.” (Tr. 302). Thus, it is not

clear from the record how plaintiff’s ability to cut the grass with a riding mower is consistent

with the ability to perform sustained sedentary work activity. Absent any additional details,

plaintiff’s ability to cut the grass using a riding mower does not support the ALJ’s finding that

plaintiff’s subjective allegations were not fully consistent with an inability to perform sedentary

work activity.

The ALJ did not properly evaluate plaintiff’s subjective complaints in accordance with 20

C.F.R. § 405.1529(c) and SSR 16-3p. Plaintiff’s first assignment of error is sustained.

III. This matter is reversed and remanded for further proceedings

If the ALJ failed to apply the correct legal standards or her factual conclusions are not

supported by substantial evidence, the Court must decide whether to remand the case for

rehearing or to reverse and order an award of benefits. 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).

Remand is appropriate if the Commissioner applied an erroneous principle of law, failed to

30

consider certain evidence, failed to consider the combined effect of impairments, or failed to

make a credibility finding. Faucher v. Secretary of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994).

Remand for payment of benefits is warranted only “where proof of the disability is

overwhelming or where the proof of disability is strong and evidence to the contrary is lacking.”

Id.

This matter will be reversed and remanded pursuant to sentence four of § 405(g) for

further proceedings consistent with this Order. All essential factual issues have not been

resolved in this matter, nor does the current record adequately establish plaintiff's entitlement to

benefits. See Faucher, 17 F.3d at 176. This matter will be remanded for reevaluation of

plaintiff's subjective statements and consideration of additional medical and vocational evidence

as warranted.

IT IS THEREFORE ORDERED THAT:

The decision of the Commissioner is REVERSED and REMANDED for further

proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

Date: 7/16/2021 Horn K Rethowd_

Karen L. Litkovitz

United States Magistrate Judge

31