United States District Court, S.D. Ohio, Western Division
ALLEN D. BOYD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MICHAEL J. NEWMAN MAGISTRATE JUDGE
DECISION AND ENTRY ADOPTING REPORT AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #20);
OBJECTIONS OF DEFENDANT NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, TO SAID
JUDICIAL FILING (DOC. #21) ARE OVERRULED; JUDGMENT TO BE
ENTERED IN FAVOR OF PLAINTIFF ALLEN D. BOYD AND AGAINST
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 THE CAPTIONED CAUSE TO THE DEFENDANT COMMISSIONER,
PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g), FOR
FURTHER PROCEEDINGS; TERMINATION ENTRY
H. RICE, JUDGE
Allen D. Boyd ("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 January 5, 2018, Magistrate Judge
Michael J. Newman filed a Report and Recommendations, Doc.
#20, 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 etseq., be reversed, and that the
matter be remanded to the Commissioner for further
proceedings, pursuant to Sentence Four of 42 U.S.C. §
405(g). Based upon reasoning and citations of authority set
forth in the Magistrate Judge's Report and
Recommendations, Doc. #20, as well as upon a thorough de
novo review of this Court's file, including the
Administrative Transcript, Doc. #15, and a thorough review of
the applicable law, this Court ADOPTS the Report and
Recommendations and OVERRULES the Commissioner's
Objections, Doc. #21, 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, and remanding the
matter, pursuant to Sentence Four of 42 U.S.C. § 405(g),
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'rof
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 directed
verdict."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.. . . [I]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.
addition to the foregoing, in ruling as aforesaid, this Court
makes the following, non-exclusive, observations:
the Report and Recommendations, the Magistrate Judge noted
that Elizabeth A. Motta, the Commissioner's
Administrative Law Judge ("ALJ"), assigned
"great weight" to the opinion of James Cacchillo,
D.O., the Commissioner's record-reviewing physician,
concluding that "it was 'consistent with the limited
objective evidence and diagnostic imaging.'" Doc.
#20, PAGEID #1716 (quoting Doc. #15-2, PAGEID #263). ALJ
Motta provided no further analysis or explanation as to the
weight assigned. In contrast, she assigned "significant
but not great weight to the opinions of this consultative
examiner[, ]" Damian M. Danopulos, M.D., as Dr.
Danopulos "appears to have offered an opinion on the
least the claimant could do[, whereas t]he residual
functional capacity is required to establish the most an
individual can do." Id.ALJ Motta's analysis was
flawed in two respects. First, she inverted the
Commissioner's own requirement that more rigorous
scrutiny be given to the opinion of a non-examining source
than that of an examining source, as the former has not had
the opportunity to observe Plaintiff first-hand. Doc. #20,
PAGEID #1715 (citing Soc. Sec. R. 96-6p, 1996 WL 374180, at
*2 (Jul. 2, 1996)). Second, ALJ Motta's
restatement of Dr. Cacchillo's opinion, and conclusory
acceptance of same, "fails short of the meaningful
explanation required by the regulations and, accordingly,
results in a finding of error." Hollon v.
Comm'rof Soc. Sec, 142 F.Supp.3d 577, 584 (S.D. Ohio
2015) (Newman, Mag. J.).
her Objections, the Commissioner argues that ALJ Motta's
decision must be read as a whole, and that even though
"the ALJ did not reiterate all of those medical findings
in the section of her decision where she assigned weight to
Dr. Cacchillo's opinion, the ALJ expressly found that Dr.
Cacchillo's opinion limiting Plaintiff to a range of
light work was consistent with the objective evidence and
diagnostic imaging." Doc. #21, PAGEID #1722 (citing Doc.
#15-2, PAGEID #263). Yet, the ALJ's failure to cite any
medical evidence of record with which Dr. Cacchillo's
opinion was supposedly consistent means that this Court is
unable to determine whether the ALJ's weighing of Dr.
Cacchillo's opinion-which, in turn, formed the basis of
Plaintiff's residual functional capacity-was proper and
supported by substantial evidence. Thus, this Court may not
affirm the Commissioner's finding of non-disability.
3. If a
District Court finds that a Commissioner's decision that
a claimant is not disabled was not supported by substantial
evidence, then the Court must remand the case to the
Commissioner for further proceedings. Remand for an immediate
award of benefits, rather than for further proceedings, is
appropriate "only where the proof of disability is
overwhelming or where the proof of disability is strong and
evidence to the contrary is lacking." Faucher v.
Sec'y of Health & Human Servs., 17 F.3d 171, 176
(6th Cir. 1994). Plaintiff does not claim that either
standard set forth in Faucher is satisfied.
from this Court's de novo review of the evidence
of record, could he reasonably so argue. Accordingly, remand
for further proceedings is required.
based upon the aforesaid, this Court ADOPTS the Report and
Recommendations of the Magistrate Judge, Doc. #20. The
Commissioner's Objections to said judicial filing, Doc.
#21, are OVERRULED. Judgment shall enter in favor of
Plaintiff and against the Commissioner, reversing the
Commissioner's decision that Plaintiff was not disabled
and, therefore, not entitled to benefits under the Act, and
remanding the case to the Commissioner, pursuant to Sentence
Four of 42 U.S.C. § 405(g), for further proceedings
consistent with this opinion.
captioned cause is hereby ordered terminated upon the docket
records of the United States District Court for the Southern
District of Ohio, Western Division, at Dayton.