United States District Court, S.D. Ohio, Western Division
L. OVINGTON MAGISTRATE JUDGE
AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE (DOC. #10); OBJECTIONS OF DEFENDANT
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION, TO SAID JUDICIAL FILING (DOC #11)
ARE OVERRULED; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFF
LAURI BURNETT 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
H. RICE, JUDGE
Lauri Burnett ("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 2, 2018, Magistrate Judge
Sharon L. Ovington filed a Report and Recommendations, Doc.
#10, 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 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. #10,
as well as upon a thorough de novo review of this Court's
file, including the Administrative Transcript, Doc. #5, and a
thorough review of the applicable law, this Court ADOPTS the
Report and Recommendations and OVERRULES the
Commissioner's Objections, Doc. #11, 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
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 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.L.R.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'rof 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:
the Report and Recommendations, the Magistrate Judge noted
that the Commissioner's Administrative Law Judge
("ALJ") did not provide sufficient explanation for
declining to assign controlling weight to the opinion of
Philip A. White, M.D., Plaintiff's treating neurologist,
prior to assigning little weight to the opinion. The
Magistrate Judge noted that the failure to follow the
two-step process in evaluating treating medical source
opinions constituted error, and given Dr. White's
specialization in neurology and lengthy, intensive treatment
history with Plaintiff, such error mandated reversal. Doc.
#10, PAGEID #652-54 (quoting Gayheart v. Comm'r of
Soc. Sec, 710 F.3d 365, 377 (6th Cir. 2013); citing Doc.
#5, PAGEID #67, 556; 20 C.F.R. § 404.1527(c)(2)(i),
(c)(5); Wilson v. Comm'r of Soc. Sec., 378 F.3d
541, 544 (6th Cir. 2004)). The Commissioner argues that the
ALJ provided ample explanation of why Dr. White's opinion
was both internally inconsistent and not supported by
substantial medical evidence of record. Doc. #11, PAGEID
#665-66 (citing Doc. #5, PAGEID #66-67, 511-13, 546-48, 556).
As internal inconsistency and lack of external validity are
valid reasons to discount the weight of a treating or a
non-treating source opinion, any failure by the ALJ to go
through the formal two-step process for evaluating Dr.
White's opinion is not grounds for remand. Id.,
PAGEID #664-65 (citing 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3); Allen v. Comm'r of Soc. Sec, 561
F.3d 646, 651 (6th Cir. 2009); Combs v. Comm'r of
Soc. Sec, 459 F.3d 640, 652 (6th Cir. 2006) (en banc);
Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir.
1993); Francis v. Comm'r of Soc. Sec, No.
09-6263, 414 Fed.Appx. 802, 804 (6th Cir. 2011); Price v.
Comm'r of Soc. Sec, No. 08-4210, 342 Fed.Appx. 172,
176 (6th Cir. 2009)).
Commissioner's arguments are not persuasive. As the
Magistrate Judge noted, Dr. White's specialization and
length of treatment history (beginning in 2006) weighed in
favor of giving controlling or great weight to his opinion.
Doc. #10, PAGEID #654-55 (citing Doc. #5, PAGEID #67, 556; 20
C.F.R. § 404.1527(c)(2)(i), (c)(5)). Moreover, while the
Commissioner cites discrepancies between Dr. White's
November 2013 and May 2014 opinions as evidence of internal
inconsistency, Doc. #11, PAGEID #665 (citing Doc. #5, PAGEID
#66, 511-13, 546-48), Dr. White explained that those
discrepancies reflected both a deterioration in
Plaintiff's condition, and the unpredictability of
Plaintiff's seizure activity in general. Doc. #10, PAGEID
#658 (citations omitted); Doc. #12, PAGEID #672 (citing Doc.
#5, PAGEID #461, 513, 548). Thus, the ALJ's conclusion
that Dr. White's opinion was not well-supported was
belied by the evidence of record, and the ALJ's failure
to determine whether to assign controlling weight to that
opinion is reversible error. Gayheart, 710 F.3d at 377.
Alternatively, the Commissioner argues that Plaintiff's
non-compliance with medication supports the ALJ's finding
of non-disability. Doc. #11, PAGEID #667 (citing Doc. #5,
PAGEID #64, 490, 520-21, 547; 20 C.F.R. §§
404.1530(b), 416.930(b)). Yet, the only mentions of
Plaintiff's alleged non-compliance in the ALJ's
decision are: (1) Dr. White, in November 2013, allegedly
conveying to an emergency room physician "concern that
the claimant had been noncompliant with her seizure
medication[, ]" Doc. #5, PAGEID #64; and (2) an
emergency room physician in May 2014 "reporting] that
her medication level was minimally sub-therapeutic."
Id. As Plaintiff notes, the record is replete with
evidence of compliance with medication throughout the insured
period; specifically, Dr. White opined in June 2015 that he
could not increase Plaintiff's medication levels in
response to increased seizure activity, as Plaintiff was
already maxed out in her medication. Doc. #12, PAGEID #673
(citing Doc. #5, PAGEID #512, 547, 563). Thus, absent further
explanation by the ALJ, Plaintiffs periodic non-compliance,
if any, is not a reasonable basis for a finding of
Plaintiff argues that remand for an immediate award of
benefits is appropriate "because the proof of disability
is strong and evidence to the contrary is lacking." Doc.
#12, PAGEID #673 (citing Faucher v. Sec'y of Health
& Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)).
However, the ALJ identified the opinions of the
Commissioner's record reviewing physicians, William Bolz,
M.D., and Gary Hinzman, M.D., record reviewing psychologists,
Karen Terry, Ph.D., and Cynthia Waggoner, Psy.D., and
examining psychologist, James Rosenthal, Psy.D., all of whom
concluded that Plaintiff had no disabling impairment. Doc.
#5, PAGEID #61, 65-66. As evidence of nondisability is
present, and the evidence of disability is not overwhelming,
remand for further proceedings, rather than an award of
benefits, is appropriate. Faucher, 17 F.3d at 176.
based upon the aforesaid, this Court ADOPTS the Report and
Recommendations of the Magistrate Judge, Doc. #10. The
Commissioner's Objections to said judicial filing, Doc.
#11, 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