United States District Court, S.D. Ohio, Western Division
MAGISTRATE JUDGE MICHAEL J.NEWMAN
AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE (DOC. #13); OBJECTIONS OF DEFENDANT
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION, TO SAID JUDICIAL FILING (DOC. #14)
ARE OVERRULED; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFF
CARLENE LOGAN 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 UNITED STATES DISTRICT COURT
Carlene Logan ("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.
#13, 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. #13, as well as upon a thorough de
novo review of this Court's file, including the
Administrative Transcript, Doc. #7, and a thorough review of
the applicable law, this Court ADOPTS the Report and
Recommendations and OVERRULES the Commissioner's
Objections, Doc. #14, 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)(l)(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 [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.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 evtdence[;] 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:
Gregory G. Kenyon, the Commissioner's Administrative Law
Judge ("ALJ"), assigned great weight to the
opinions of Leslie Green, M.D., and Anahi Ortiz, M.D., the
Commissioner's record reviewing physicians, both of whom
opined that Plaintiff could perform "medium exertional
work with frequent postural movements[, ]" and that he
was not under a disability as defined by the Act. Doc. #7-2,
PAGEID #50 (citing Doc. #7-3, PAGEID 112-13, 116-18, 151-52,
156-57). ALJ Kenyon's only supporting statement was his
finding that Plaintiff "can do at least this level of
work ... as demonstrated by the evidence of record and the
claimant's activities of daily living." Id.
ALJ Kenyon's reasoning in deciding to give great weight
to the opinions of Kristen Haskins, Psy.D., and Janet Souder,
Psy. D., the Commissioner's record-reviewing
psychologists, was similarly sparse. Doc. #7-2, PAGEID #50
(citing Doc. #7-3, PAGEID #113-15, 166, 170-71). ALJ Kenyon
concluded that the modest limitations opined by Drs. Haskins
and Souder were "consistent with the observations of the
[Cooperative Disability Investigations Unit ('CDIU')]
investigation, mental status examinations by the
claimant's primary care physician, and the claimant's
activities of daily living." Id. In the Report
and Recommendations, the Magistrate Judge stated that ALJ
Kenyon's "analysis is conclusory and lacking in
meaningful explanation." Doc. #13, PAGEID #1061 (citing
20 C.F.R. § 404.1527(c); Aytch v. Comm'r of Soc.
Sec, No. 3:13-cv-135, 2014 WL 4080075, *at *5-6 (S.D.
Ohio Aug. 19, 2014) (Newman, Mag. J.), Report and
Recommendations adopted at 2014 WL 4443286 (S.D. Ohio
Sept. 8, 2014) (Rice, J.)). "Accordingly, " the
Magistrate Judge concluded, "the ALJ's assessment of
the record-reviewers' opinions is unsupported by
substantial evidence." Id., PAGEID #1062.
Objections, the Commissioner argues that the Magistrate Judge
erred in "suggest[ing] that the ALJ's analysis of
the opinions of the state agency reviewing consultants was
per se unreasonable due to the brevity of the
analysis." Doc. #14, PAGEID #1065 (citing Doc. #13,
PAGEID #1061-62). The Commissioner claims that the two
paragraphs in which ALJ Kenyon assigned great weight to the
record reviewing sources cannot be read, as the Magistrate
Judge supposedly did, in isolation, but as part of the
overall decision, which discussed medical evidence of record,
activities of daily living, and the CDIU investigation. Doc.
#14, PAGEID #1065, 1068 (citing Doc. #7-2, PAGEID #50; Doc.
#13, PAGEID #1061-62; Hill v. Commissioner of Soc.
Sec, No. 13-6101, 560 Fed.Appx. 547, 551 (6th Cir.
2014); Buckhanon ex rel. J.H. v. Astrue, No.
09-1633, 368 Fed.Appx. 674, 678-79 (7th Cir. 2010)). The
Commissioner notes that ALJ Kenyon discussed and evaluated:
(a) the largely normal findings and stable symptomology
reported by Anil K. Agarwal, M.D., Plaintiffs treating
physician; and (b) Plaintiff's subjective statements,
along with an explanation of why he concluded that those
statements were not entirely credible. Id., (citing
Doc. #7-2, PAGEID #44-48, 50; Doc. #7-7, PAGEID #512, 530,
544, 562, 609, 627, 629-30, 632, 688; Doc. #7-8, PAGEID #800,
803, 814, 818, 828, 833, 842, 845, 856, 859, 869, 874, 885).
As those other discussions provide a basis for assigning
great weight to the reviewing source opinions, the
Commissioner argues, ALJ Kenyon's residual functional
capacity ("RFC") and finding of non-disability were
supported by substantial evidence and must be affirmed.
Id., PAGEID #1068-69.
Commissioner's argument is unavailing. The Magistrate
Judge did not discount ALJ Kenyon's analysis solely
because of its brevity. Rather, he found it to be
insufficient due to its conclusory nature and complete lack
of explanation of the reviewing source opinions. Doc. #13,
PAGEID #1062. While the Commissioner is correct that the ALJ
need not provide an exhaustive, factor-by-factor analysis of
each opinion, Doc. #14, PAGEID #1065 (citing 20 C.F.R. §
404.1527(c); Francis v. Comm'r of Soc. Sec, No.
09-6263, 414 Fed.Appx. 802, 804 (6th Cir. 2011)), he still
must provide good reasons for the weight assigned to each
opinion. Soc. Sec. R. 96-2p, 1996 WL 374188, at *5 (Jul. 2,
1996). ALJ Kenyon's analysis can be restated as
"these opinions are assigned great weight because they
are accurate, " which begs the question and provides no
insight as to the factual bases and reasoning of the
reviewing source opinions. The Commissioner claims that the
"state agency reviewing physicians comprehensively
considered the record evidence, and provided detailed bases
for their opinions." Doc. #14, PAGEID #1069 (citing Doc.
#7-3, PAGEID #101-16, 142-54). However, ALJ Kenyon did not
include any such discussion in the opinion, and "this
Court shall not accept... post hoc rationalizations
for agency action in lieu of accurate reasons and findings
enunciated by the [ALJ]." Keeton v. Comm'r of
Soc. Sec, No. 13-4360, 583 Fed.Appx. 513, 524 (6th Cir.
2014) (internal quotation marks and citations omitted). In
sum, ALJ Kenyon, in his barebones, conclusory analysis of the
reviewing source opinions, did not provide the good reasons
necessary for those opinions to be given great weight and
relied upon in formulating the RFC.
Commissioner argues that, even if ALJ Kenyon failed to
provide the requisite good reasons for assigning great weight
to the record reviewing source opinions, his decision should
still be upheld under the harmless error doctrine, since the
restrictions included ALJ Kenyon's RFC were consistent
with-indeed, more severe than-those opined by Drs. Green and
Ortiz. Doc. #14, PAGEID #1066-67 (citing Doc. #7-3, PAGEID
#154-55; Shinseki v. Sanders, 556 U.S. 396, 407,
409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009); Nelson v.
Apfel, 131 F.3d 1228 (7th Cir. 1997); Molebash v.
Berryhill, No. 2:16-cv-869, 2017 WL 3473816, at *5 (S.D.
Ohio Aug. 14, 2017) (Vascura, Mag. J.), Report and
Recommendations adopted at 2017 WL 3769353 (S.D. Ohio
Aug. 29, 2017) (Sargus, C.J.)). Yet, as discussed above, ALJ
Kenyon erred in his decision to assign great weight to the
opinions of Drs. Green and Ortiz, and his RFC included
less severe restrictions than those opined by Dr.
Agarwal, Plaintiff's treating physician. Doc. #7-2,
PAGEID #44, 48. Thus, ALJ Kenyon failed to build a logical
bridge between the evidence of record and his RFC
determination, and the harmless error doctrine cannot apply
to uphold his RFC determination and finding of
non-disability. Villano v. Astrue, 556 F.3d 558,
562-63 (7th Cir. 2009).
Remand for an immediate "award of benefits is proper
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)).
While ALJ Kenyon erred in assigning great weight to the
opinions of the Commissioner's record reviewing
physicians and psychologists, all of those medical sources
reviewed the evidence of record and concluded that Plaintiff
had no disabling impairment. See, e.g., Doc. #7-3,
PAGEID #156-57. 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. #13. The
Commissioner's Objections to said judicial filing, Doc.
#14, 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