United States District Court, N.D. Ohio, Western Division
JAMMIE S. SIEMER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
JEFFREY J. HELMICK, JUDGE
REPORT & RECOMMENDATION RESOLVING DEFENDANT'S
MOTION TO REMAND
M. PARKER, UNITED STATES MAGISTRATE JUDGE
the Commissioner of Social Security, moves the court to
remand this case for further proceedings and a new decision.
Plaintiff, Jammie S. Siemer, opposes a remand for
re-evaluation and argues that the case should be remanded for
an award of benefits. This matter is before me pursuant to 42
U.S.C. § 405(g), 42 U.S.C. § 1383(c)(3) and Local
Rule 72.2(b). Because all the essential factual issues have
not been resolved and the record does not adequately
establish Siemer's entitlement to benefits, I recommend
that the court VACATE the decision of the Commissioner and
REMAND this matter for further administrative proceedings and
a new decision.
Law & Analysis
Commissioner moves the court for a remand pursuant to
sentence four of 42 U.S.C. § 405(g), which provides, in
The court may, on motion of the Commissioner of Social
Security made for good cause shown before the Commissioner
files the Commissioner's answer, remand the case to the
Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order
additional evidence to be taken before the Commissioner of
Social Security, 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
the parties agree that the appeal should be remanded.
However, Siemer contends that the court should remand her
appeal and require the award of benefits. ECF Doc. 15. The
Commissioner argues that the appeal must be remanded for
further proceedings. ECF Docs 14 & 16.
sentence four remand, the court may reverse the decision and
immediately award benefits if all essential factual issues
have been resolved and the record adequately establishes
plaintiff's entitlement to benefits. Faucher v.
Sec'y of Health & Human Servs., 17 F.3d 171, 176
(6th Cir. 1994); see also Abbott v. Sullivan, 905
F.2d 918, 927 (6th Cir. 1990); Varley v. Secretary of
Health and Human Servs., 820 F.2d 777, 782 (6th Cir.
1987); Mowery v. Heckler, 771 F.2d 966, 973 (6th
Cir. 1985). Siemer contends that, because the ALJ assigned
controlling weight to the opinions of one of her treating
physicians, it follows that she is entitled to benefits. ECF
Doc. 15. The ALJ assigned controlling weight to the September
2016 medical source statement of Peter White, M.D. One of the
opinions expressed by Dr. White was that Siemer would miss
about two days of work per month. The ALJ expressly listed
Dr. White's opinion in his decision and purportedly
assigned controlling weight to it. (Tr. 220).
the ALJ's assignment of controlling weight to the
September 2016 opinion of Dr. White directly contradicts the
ALJ's Step Five finding that there were jobs existing in
significant numbers in the national economy that Siemer could
perform. The ALJ relied on the VE's testimony in making
this finding. (Tr. 222). However, the VE testified that most
employers do not tolerate an employee missing more than one
day per month. (Tr. 299). Thus, it was inconsistent to assign
controlling weight to Dr. White's opinion and to also
find that there were a significant number of jobs that Siemer
could perform in reliance on the VE's testimony.
argues that the ALJ's assignment of controlling weight to
Dr. White's September 2016 opinion should end the matter
and justify an award of benefits. But, there is an obvious
ambiguity in the ALJ's decision. On the one hand, if the
ALJ intended to actually assign controlling weight to Dr.
White's opinion that Siemer, among other things, would
miss two or more days of work per month, then he could not
also rely on the VE's testimony to find that there were a
significant number of jobs that Siemer could perform. On the
other hand, if the ALJ concluded that the VE's opinion
testimony was valid and consistent with the Dictionary of
Occupational Titles and supported a conclusion that
Siemer “is capable of making a successful adjustment to
other work that exists in significant numbers in the national
economy” (Tr. 223), then he could not have properly
assigned controlling weight to Dr. White's opinions.
Notably absent from the ALJ's decision is any discussion
of whether Siemer would actually be required to miss work two
days per month. Instead, the ALJ appears to have recounted in
some detail the host of medical visits and treatments Siemer
had received. After doing so, the ALJ concluded that
Siemer's “statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record.” The ALJ failed to specify in
what way(s) Siemer's complaints were inconsistent with
the medical record or other evidence.
with the Commissioner that the record does not adequately
establish plaintiff's entitlement to benefits. There is
an ambiguity and inconsistency in the ALJ's decision that
must be explained in further proceedings. This case should be
Commissioner moves the Court to remand this matter for
further proceedings. By issuing a legally flawed, ambiguous
and inconsistent decision, the ALJ failed to build a logical
bridge between the evidence and the record. Because the court
is unable to determine whether the ALJ intended to assign
controlling weight to the entirety of Dr. White's
opinion, I recommend that the court VACATE the
Commissioner's finding that Siemer is not disabled and
REMAND the case. The remand order should direct the Appeals
Council to instruct the ALJ to reevaluate the opinion of Dr.
White, to ...