REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD (DE 21) and REMAND THIS MATTER TO THE COMMISSIONER

ANTHONY P. PATTI, Magistrate Judge.

I. RECOMMENDATION

For the reasons that follow, it is RECOMMENDED that the Court GRANT Plaintiff's motion for judgment on the administrative record (DE 21) and REMAND this matter to the Commissioner of Social Security for re-evaluation of the opinion evidence and the RFC, consistent with this report and recommendation.

II. REPORT

Plaintiff, Jemila Hadi, brings this action under 42 U.S.C. §§ 405(g) and 1383(c) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance (DI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for judgment on the administrative record (DE 21), the Commissioner's response (DE 22), Plaintiff's reply (DE 29), and the administrative record (DE 11).1

A. Background and Administrative History

Plaintiff alleges her disability began on April 4, 2008, at the age of 46. (R. at 158-159.) She lists several physical conditions (knees, neck, shoulder, ear and back problems, as well as diabetes) that limit her ability to work. (R. at 170.) Her application for DI was denied in June 2013. (R. at 70-81, 105-108.) Her request for reconsideration was denied in March 2014. (R. at 82-104, 111-115.)

Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). ALJ Elizabeth P. Neuhoff held a hearing, and, on September 1, 2015, determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 7-69, 289-326.) On October 6, 2016, the Appeals Council denied Plaintiff's request for review. (R. at 1-6.) Thus, ALJ Neuhoff's decision became the Commissioner's final decision.

Plaintiff timely commenced the instant action on November 21, 2016.

B. Plaintiff's Medical History

The administrative record contains approximately 1,544 pages of medical records, of which Exhibits 1F through 44F were available to the ALJ at the time of the September 1, 2015 decision. (R. at 24, 327-1870.) These records will be discussed in detail, as necessary, below.

C. Hearing Testimony

Plaintiff testified at the July 16, 2015 hearing, when she was 54 years old. (R. at 39-59, 158.) As Plaintiff is expressly challenging the ALJ's credibility assessment in the instant appeal, the Court will refer to Plaintiff's testimony as necessary below. Vocational expert (VE) Rebecca Williams testified at the hearing, providing answers to several hypotheticals. (R. at 59-68, 241-246.)

D. The Administrative Decision

On September 1, 2015, ALJ Neuhoff issued a decision. (R. at 7-24.) At Step 1 of the sequential evaluation process,2 the ALJ found that Plaintiff did not engage in substantial gainful activity during the period from her alleged amended onset date of August 1, 2011 through her date last insured (DLI) of December 31, 2013. (R. at 12.) At Step 2, the ALJ found that, through the DLI, Plaintiff had the following severe impairments: thyroid disorder status post total thyroidectomy in 2014, back disorder, and bilateral knee degenerative joint disease status post right arthropathy in 2007. (R. at 12-14.) She also noted the Plaintiff's claims of diabetes mellitus, goiter, hearing loss, obesity and migraines, and did not find these to be severe. (R. at 14.) At Step 3, the ALJ found that, through the DLI, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (R. at 14-15.) Between Steps 3 and 4 of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC")3 and determined that, through the DLI, Plaintiff had the RFC:

(R. at 15-18.) At Step 4, the ALJ determined that, through the DLI, Plaintiff was capable of performing past relevant work (PRW) as an appliance assembler and production assembler, as this work did not require the performance of work-related activities precluded by her RFC. (R. at 18.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, at any time from April 4, 2008, the alleged onset date, through December 31, 2013, the DLI. (Id.)4

E. Standard of Review

The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it `is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "substantial evidence is defined as `more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). "Substantial evidence supports a decision if `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' backs it up." Biestek v. Comm'r of Soc. Sec., 880 F.3d 778, 783 (6th Cir. 2017) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In deciding whether substantial evidence supports the ALJ's decision, the court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant."); Richardson, 402 U.S. at 399 ("We therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict."). Furthermore, the claimant "has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability." Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

Although the substantial evidence standard is deferential, it is not trivial. The Court must "`take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding `even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); see also 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 . . . ."); see also Biestek, 880 F.3d at 783 ("[A] decision supported by substantial evidence must stand, even if we might decide the question differently based on the same evidence.") (citing Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 395 (6th Cir. 2010)). Finally, even if the ALJ's decision meets the substantial evidence standard, "`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 v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

F. Analysis

1. Issues presented

Plaintiff's brief contains a lengthy statement of the facts, within which she asserts that, per the VE's testimony, "the limitations set forth in the RFC assessments of either NP Bolton / Dr. Attoussi or Dr. Surber would preclude performance of Ms. Hadi's PRW." (DE 21-1 at 1-31.) Thereafter, she makes the following, express arguments:

(DE 21-1 at 31-40.)5 The Commissioner argues that substantial evidence supports the ALJ's finding that Plaintiff could perform "a Range of Medium Work[.]" (DE 22 at 5-15.)

2. Opinion evidence

The Social Security Administration (SSA) will evaluate every medical opinion it receives. 20 C.F.R. § 404.1527(c) ("How we weigh medical opinions."). "Unless we give a treating source's medical opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion[:]" (1) examining relationship; (2) treatment relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors. Id. See also SSR 96-2p, 1996 WL 374188 (S.S.A. July 2, 1996), Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). However, while an ALJ must "always give good reasons in [the ALJ's] notice of determination or decision for the weight [the ALJ] give[s] your treating source's opinion," 20 C.F.R. § 416.927(c)(2), and "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," Friend v. Comm'r of Soc. Sec., No. 09-3889, 375 F. App'x 543, 550 (6th Cir. 2010) (per curiam) (internal quotation omitted), there is no per se rule that requires a written articulation of each of the six regulatory or "Wilson factors" listed in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Tilley v. Comm'r of Soc. Sec., 394 F. App'x 216, 222 (6th Cir. 2010). In other words, the regulations do not require "an exhaustive factor-by-factor analysis." Francis v. Comm'r of Soc. Sec., 414 F. App'x 802, 804-05 (6th Cir. 2011) (citing § 404.1527(d)(2)).

Moreover, the failure to discuss the requisite factors may constitute harmless error: (1) if "a treating source's opinion is so patently deficient that the Commissioner could not possibly credit it;" (2) "if the Commissioner adopts the opinion of the treating source or makes findings consistent with the opinion;" or (3) "where the Commissioner has met the goal of [§ 1527(c) ]-the provision of the procedural safeguard of reasons-even though she has not complied with the terms of the regulation." Nelson v. Comm'r of Soc. Sec., 195 F. App'x 462, 470 (6th Cir. 2006) (quoting Wilson, 378 F.3d at 547). See also, Betty v. Comm'r of Soc. Sec., No. 15-CV-10734, 2016 WL 1105008, at *4 (E.D. Mich. Feb. 17, 2016), report and recommendation adopted, No. 15-CV-10734-DT, 2016 WL 1090554 (E.D. Mich. Mar. 21, 2016).

3. Jerry Lee Surber, M.D. (consultative examiner)

Jerry L. Surber, M.D., specializes in emergency medicine. (R. at 264-269.) Dr. Surber performed a consultative examination (CE) on March 7, 2013, which resulted in several clinical impressions: (1) possible left-sided hearing loss; (2) hypothyroidism; (3) obesity; (4) adult-onset diabetes mellitus for which the patient also takes prescribed medications; (5) pain worse in cold or rainy weather accompanied by stiffness and fatigue; and (6) treatment with prescribed muscle relaxants. (R. at 571-572.) Dr. Surber's "assessment and plan" was as follows:

(R. at 572.)

Each time the ALJ mentioned this report, she acknowledged it was a consultative examination. (R. at 14, 17.) Thus, the ALJ considered the examining relationship (simultaneously recognizing the lack of a treatment relationship). 20 C.F.R. § 404.1527(c)(1),(2). The ALJ expressly cited Dr. Surber's report at Step 2, noting, inter alia, that Plaintiff "exhibited full range of motion . . . ." (R. at 14 (emphasis added).) Then, within the RFC determination, the ALJ assigned "little weight" to this opinion and explained:

(R. at 17-18 (emphases added).)

Plaintiff generally argues that the ALJ did not give a "single good reason" for the "little weight" assigned to Dr. Surber's opinion. (DE 21-1 at 36-37.) However, under the applicable regulation, the ALJ did not need to, as "the SSA requires ALJs to give reasons for only treating sources." Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (emphasis in original). As to Plaintiff's more specific arguments, I agree with her that Dr. Surber "is the medical expert," not the ALJ. (DE 21-1 at 37.) Nonetheless, use of the phrase "at the hearing" seems to be mistaken, as the hearing transcript index makes clear that Dr. Surber did not testify (R. at 27), and the reference to "his observations" does not likely point to the ALJ herself. Instead, this strange and otherwise unexplainable reference hopefully indicates that the ALJ was comparing Dr. Surber's own "neurological" and "musculoskeletal / extremities findings," (R. at 571), with his "assessment and plan," (R. at 572).6 If it has any other meaning — for example, that the ALJ was mistakenly considering testimony given by Dr. Surber at a hearing in another case — it is quite troubling, because on the face of her opinion, the ALJ is discounting Dr. Surber on the basis of a perceived inconsistency between his testimony (which is nonexistent here) and his written record. This latter scenario being so illogical, the former "mistake" scenario is more likely.

Still, even more disconcerting here is the discounting of Dr. Surber's CE report for its apparent internal inconsistency, which is less susceptible to being explained away. 20 C.F.R. §§ 404.1527(c)(4). At Step 2, the ALJ interpreted Dr. Surber's report as exhibiting "full range of motion . . . ." (R. at 14.) Yet, Plaintiff seems to be correct that she "had limited cervical spine, lumbar spine[,] [and] shoulder range of motion in nearly all spheres[,]" at the time of the CE examination. (DE 21-1 at 37; R. at 570-571.) The administrative record contains a State of Tennessee DDS "range of motion" chart, which lists normal ranges of motion for the cervical spine, dorsolumbar spine, shoulder, elbow, hip, knee, ankle and wrist. (R. at 287-288.) When these percentages are compared with Dr. Surber's neck and musculoskeletal / extremities examinations (R. at 570-571), it is clear that Plaintiff had reduced range of motion in all measured areas of the cervical spine, in some measured areas of the dorsolumbar spine, in all measured areas of the right shoulder, and in the external rotation of the left shoulder. (See also DE 21-8, DE 29-3 at 7-8.) In addition, the October 29, 2013 physical therapy notes seem to indicate that she was being evaluated for, inter alia, "Range of Motion: Spine: Pre-Treatment: Active Lumbosacral." (R. at 21-1 at 10, R. at 1114.) Admittedly, this was not the only problem under evaluation; nevertheless, Plaintiff "was instructed in the independent performance of a home exercise program . . .[,]" and the "Therapeutic Contents" section of the "Plan" includes "Active Assistive Range of Motion Activities," "Active Range of Motion Activities[,]" and "Manual Range of Motion Activities," among others. (R. at 1115.)

True, within the RFC determination, the ALJ accurately acknowledged the CE report's representation that Plaintiff had "decreased range of motion of her right shoulder," as well as full range of motion in her elbows, hips, knees, wrists, hands, and fingers. (R. at 17-18, 571.) Accordingly, the RFC provides restrictions on the right upper extremity.7 Thus, even though Plaintiff contends that the ALJ "did not attribute any functional significance to [the right shoulder] finding[,]" (DE 29 at 4), the ALJ "cured" his earlier misstatement about shoulder range of motion; however, the ALJ did not do the same for the misstatement about the cervical and dorsolumbar spine ROM. This mistake undermines the ALJ's statement that Dr. Surber's "objective findings did not substantiate the limitations he gave." (R. at 18.)

In sum, the Court should find that: (a) Dr. Surber assessed reduced range of motion in the cervical spine, dorsolumbar spine and shoulder (R. at 287-288, 570-571); (b) the ALJ mistakenly interpreted "full range of motion" at Step 2 (R. at 14); (c) the ALJ at least somewhat cured this error as to the right shoulder within the RFC discussion and by instituting restrictions with regard to the right upper extremity (R. at 15, 17-18); but, (d) it is not clear whether the RFC accommodates the reduced spinal range of motion. In a sense, as Plaintiff states, the ALJ's findings "regarding Ms. Hadi's ranges of motion are inexplicable." (DE 29 at 4). (See also DE 29 at 9.) The Court acknowledges that the state agency medical consultants found that Dr. Surber's report was "not supported by the objective medical data in the file or by an exam with normal strength[,]" (R. at 77-79, 100-101), and further acknowledges that Defendant points to several places in the overall treatment record (purportedly including the treatment notes of Bolton and Dr. Attoussi) where "full ranges of motion" and other normal findings are indicated. (See DE 22 at 9, 10, 13); however, these do not necessarily cure or make harmless the ALJ's errant evaluation of Dr. Surber's consistency and its potential or consequential effect on the weight given to Dr. Surber's opinion. It is the Undersigned's finding and recommendation that this needs to be corrected on remand.

G. Conclusion

In light of the foregoing conclusion that this matter should be remanded for the ALJ's treatment of Dr. Surber's opinion, the Court need not address the other issues presented in Plaintiff's appeal, such as the challenges to the ALJ's treatment of other opinion evidence, the ALJ's credibility assessment, or the ALJ's obesity evaluation. In sum, for the reasons stated above, it is RECOMMENDED that the Court GRANT Plaintiff's motion for judgment on the administrative record (DE 21) and REMAND this matter to the Commissioner of Social Security for re-evaluation of the opinion evidence and the RFC, consistent with this Report and Recommendation. On remand, in addition to this more general directive, the ALJ should specifically: (1) correct the above described error with respect to Dr. Surber's findings on range of motion; (2) correct, delete or clarify the reference to Dr. Surber's inconsistent testimony; (3) re-evaluate the weight given to Dr. Surber's opinion; and, (4) reformulate the RFC, as necessary.

III. PROCEDURE ON OBJECTIONS

The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.