United States District Court, S.D. Ohio, Western Division
MAGISTRATE JUDGE MICHAEL J. NEWMAN
AND ENTRY ADOPTING IN THEIR ENTIRETY REPORT AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #14),
AND OVERRULING OBJECTIONS OF DEFENDANT NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
(DOC. #15) TO SAID JUDICIAL FILING; JUDGMENT TO BE ENTERED IN
FAVOR OF PLAINTIFF AND AGAINST THE DEFENDANT COMMISSIONER
REVERSING THE DEFENDANT COMMISSIONER'S DECISION THAT
PLAINTIFF WAS NOT DISABLED AND, THEREFORE, NOT ENTITLED TO
BENEFITS UNDER THE SOCIAL SECURITY ACT, AND REMANDING
CAPTIONED CAUSE TO THE COMMISSIONER FOR FURTHER PROCEEDINGS;
H. RICE, UNITED STATES DISTRICT JUDGE
David Dunham ("Plaintiff') has brought this action
pursuant to 42 U.S.C. § 405(g) to review a decision of
the Defendant Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration ("Commissioner"),
denying Plaintiff's application for Social Security
disability benefits. On October 20, 2017, Magistrate Judge
Michael J. Newman filed a Report and Recommendations, Doc.
#14, recommending that the Commissioner's decision that
Plaintiff was not disabled and, therefore, not entitled to
benefits under the Social Security Act ("Act"), 42
U.S.C. § 301 et seq., be reversed, and that the
captioned cause be remanded for further administrative
proceedings. Based upon reasoning and citations of authority
set forth below, as well as upon a thorough de novo
review of this Court's file, including the Administrative
Transcript, Doc. #6; and a thorough review of the applicable
law, this Court ADOPTS the Report and Recommendations, Doc.
#14, and OVERRULES the Commissioner's Objections, Doc.
#15, to said judicial filing. The Court, in so doing, orders
the entry of judgment in favor of Plaintiff and against the
Commissioner, reversing the decision of the Commissioner that
Plaintiff was not disabled and, therefore, not entitled to
benefits under the Act, as unsupported by substantial
evidence, and remanding the captioned cause to the
Commissioner for further proceedings.
reviewing the Commissioner's decision, the Magistrate
Judge's task is to determine if that decision is
supported by "substantial evidence." 42 U.S.C.
§ 405(g). Under 28 U.S.C. § 636(b)(1)(C), this
Court, upon objections being made to the Magistrate
Judge's Report and Recommendations, is required to make a
de novo review of those recommendations of the
report to which objection is made. This de novo
review, in turn, requires this Court to re-examine all the
relevant evidence, previously reviewed by the Magistrate
Judge, to determine whether the findings "are supported
by substantial evidence." Valley v. Comm'r of
Soc. Sec, 427 F.3d 388, 390 (6th Cir. 2005). This
Court's sole function is to determine whether the record
as a whole contains substantial evidence to support the
Commissioner's decision. The Commissioner's findings
must be affirmed 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)
(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S.
197, 229, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938)).
"Substantial evidence means more than a mere scintilla,
but only so much as would be required to prevent a [Judgment
as a Matter of Law]." Foster v. Bowen, 853 F.2d
483, 486 (6th Cir. 1988). To be substantial, the evidence
"must do more than create a suspicion of the existence
of the fact to be established[l]t must be enough to justify,
if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one of fact
for the jury." LeMaster v. Sec'y of Health &
Human Servs., 802 F.2d 839, 840 (6th Cir. 1986) (quoting
N.LR.B. v. Columbian Enameling and Stamping Co., 306
U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)).
determining "whether there is substantial evidence in
the record ... we review the evidence in the record taken as
a whole." Wilcox v. Sullivan, 917 F.2d 272,
276-77 (6th Cir. 1980) (citing Allen, v. Califano,
613 F.2d 139, 145 (6th Cir. 1980)). However, the Court
"may not try the case de novo [;] nor resolve
conflicts in evidence[;] nor decide questions of
credibility." Jordan v. Comm'r of Soc. Sec,
548 F.3d 417, 422 (6th Cir. 2008) (quoting Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984)). "The
findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial
evidence to support a different conclusion." Buxton
v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Rather, if
the Commissioner's decision "is supported by
substantial evidence, then we must affirm the
[Commissioner's] decision[, ] even though as triers of
fact we might have arrived at a different result."
Elkins v. Sec'y of Health and Human Servs., 658
F.2d 437, 439 (6th Cir. 1981) (citing Moore v.
Califano, 633 F.3d 727, 729 (6th Cir. 1980)).
addition to the foregoing, in ruling as aforesaid, this Court
makes the following, non-exclusive, observations:
2015, Raymond Luna, M.D., Plaintiff's treating physician
since 2013, completed a Medical Impairment Questionnaire
provided to him by Plaintiff's counsel. Doc. #6-8, PAGEID
#707-08. In the questionnaire, Dr. Luna opined that Plaintiff
"could stand and sit for 30 minutes each at one time,
but. . . could not work at all during an eight-hour
workday." Doc. #6-2, PAGEID #52 (citing Doc. #6-8,
PAGEID #707-08). Administrative Law Judge Eric Anschuetz
assigned little weight to Dr. Luna's opinion, concluding
that the opined limitations "appear to be simply a
restatement of the claimant's subjective
allegations." Id. Also, the ALJ concluded that
Dr. Luna's limitations were inconsistent with his
activities of daily living and other medical evidence of
record. Id., PAGEID #52-53. Yet, as the Magistrate
Judge correctly concluded, the ALJ's discussion of Dr.
Luna's opinion was inadequate, as he "fail[ed] to
mention or specifically analyze whether Dr. Luna's
opinion is entitled to controlling weight[.]" Doc. #14,
PAGEID #762. The two-step analysis detailed in the treating
physician rule in effect at the time of Plaintiff's
application, 20 C.F.R. § 404.1527(c)(2), requires the
ALJ first to determine whether a treating source opinion is
entitled to controlling weight. Only after the ALJ determines
that a treating source opinion is not entitled to such
weight-and properly explains why he has arrived at that
conclusion-can he decide to assign little or no weight to
that opinion. Id. "[L]ack of explanation
regarding 'the controlling weight [analysis] hinders a
meaningful review of whether the ALJ properly applied the
treating-physician rule that is at the heart of this
regulation.'" Doc. #14, PAGEID #762 (quoting
Gayheart v. Comm'rof Soc. Sec, 710 F.3d 365, 377
(6th Cir. 2013)).
Objections, the Commissioner notes that, while
Plaintiff's date last insured was December 31, 2012, Dr.
Luna did not begin treating Plaintiff until July 2013, and
did not issue his opinion until June 2015. Doc. #15, PAGEID
#767 (citing Doc. #6-8, PAGEID #707-08); see also
Doc. #6-2, PAGEID #47 (Plaintiff "last met the insured
status requirements of the Social Security Act on December
31, 2012."). The Commissioner argues that, because Dr.
Luna's opinion is only relevant "to the extent it
illuminates a claimant's health before the
expiration of his insured status[J" Doc. #15, PAGEID
#767 (emphasis in original) (quoting Nagle v. Comm'r
of Soc. Sec, No. 98-3984, 191 F.3d 452 (TABLE), 1999 WL
777355, at *1 (6th Cir. Sept. 21, 1999), and Dr. Luna's
opinion was not consistent with relevant, objective evidence
of record prior to the expiration of that status, the ALJ was
correct in discounting Dr. Luna's opinion. Yet, the ALJ
did not articulate the above as a reason for assigning little
weight to that testimony, and the Commissioner may not fill
in the gaps of the ALJ's opinion. See Bray v.
Comm'r of Soc Sec, Admin., 554 F.3d 1219, 1225
("Long-standing principles of administrative law require
us to review the ALJ's decision based on the reasoning
and factual findings offered by the ALJ-not post hoc
rationalizations that attempt to intuit what the adjudicator
may have been thinking."). As the ALJ's discussion
of Dr. Luna's opinion did not "otherwise me[e]t the
regulations goal[, ]" Gayheart, 710 F.3d at
380, his failure to follow the two-step treating physician
rule constitutes grounds for remand.
her Objections, the Commissioner further notes that the ALJ
did cite the facts that: (a) Dr. Luna's June 2015 opinion
was only a check-off form provided by Plaintiff's
counsel; and (b) the opinion was inconsistent with his own
treatment notes as reasons for discounting it. Doc. #15,
PAGEID #767-68 (citing Doc. #6-2, PAGEID #52-53; Doc. #6-7,
PAGEID #394, 411-12; 20 C.F.R. § 404.1527(c)(3-4);
Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.
1993); Hernandez v. Comm'r of Soc. Sec, No.
15-1875, 644 Fed.Appx. 468, 474-75 (6th Cir. 2016)). As lack
of explanation and inconsistency with evidence of record are
proper reasons for discounting an opinion, the Commissioner
argues that the ALJ has provided the requisite good reasons
for assigning little weight to Dr. Luna's opinion,
rendering harmless any error he may have committed in failing
to go through the two-step process. Id., PAGEID #767
(citing Wilson v. Comm'r of Soc. Sec, 378 F.3d
541, 547 (6th Cir. 2004); Martin v. Comm'r of Soc
Sec, No. 16-5013, 658 Fed.Appx. 255, 258 (6th Cir.
2016)). Yet, supportability, consistency, specialization and
other factors are only to be considered at step two in the
analysis, i.e., only after articulating why the
treating physician's opinion is not entitled to
controlling weight. 20 C.F.R. § 404.1527(c)(2-6). Again,
the Commissioner may not present post hoc
rationalizations that cannot be reasonably inferred from the
Commissioner argues that the ALJ's evaluation of Dr.
Luna's opinion was not, as the Magistrate Judge
suggested, limited to one paragraph; rather, the evaluation
was made in conjunction with his analysis of all the medical
evidence of record. Doc. #15, PAGEID #769-70 (citing Doc.
#6-2, PAGEID #50-52; Doc. #6-7, PAGEID #287, 308, 320,
338-39, 349, 355, 365, 386, 390, 393, 476-77, 555; Doc. #6-8,
PAGEID #654-55; Doc. #14, PAGEID #763). Yet, as Plaintiff
points out, portions of the ALJ's discussion of other
medical evidence of record supported at least some of Dr.
Luna's findings. Doc. #17, PAGEID #777-78 (citing Doc.
#6-2, PAGEID #50-52). This is problematic in this matter,
because the ALJ gave great weight to the opinions of the
Commissioner's record reviewing physicians, who reviewed
that same evidence, and whose opinions were to be subject to
much more rigorous review than that of a treating physician.
Doc. #6-2, PAGEID #50-52; Soc. Sec. R. 96-6p, 1996 WL 374180,
at *2 (Jul. 2, 1996). The ALJ's failure to build a
logical bridge connecting: (a) the evidence of record; (b)
his decisions on the weight to assign to certain medical
opinions; (c) and the residual functional capacity he
assigned to Plaintiff, is grounds for remand. See Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (citations
omitted) ("The ALJ is not required to discuss every
piece of evidence, but must build a logical bridge from
evidence to conclusion.").
Magistrate Judge concluded that "evidence of disability
is not overwhelming. Therefore, a remand for further
proceedings is proper." Doc. #14, PAGEID #764 (citing
Faucher v. Sec'y of Health & Human Servs.,
17 F.3d 171, 176 (6th Cir. 1994)). Plaintiff does not argue
in his response memorandum that evidence of disability is
overwhelming, or that evidence of disability is strong and
evidence of non-disability is lacking, such that remand for
an award of benefits would be proper. Faucher, 17
F.3d at 176. Nor, from this Court's review of the record,
could Plaintiff have reasonably so argued. Thus, remand for
further proceedings is appropriate.
based upon the aforesaid, this Court adopts in their entirety
the Report and Recommendations of the United States
Magistrate Judge, Doc. #14, and overrules the
Commissioner's Objections to said judicial filing. Doc.
#15. Judgment shall enter in favor of Plaintiff and against
the Defendant Commissioner, reversing the decision of the
Defendant Commissioner that Plaintiff was not disabled and,
therefore, not entitled to benefits under the Act as
unsupported by substantial evidence, and remanding the
captioned cause to the Defendant Commissioner for further
captioned cause is hereby ordered terminated upon the docket
records of the United States District Court for the Southern