DEAN V. COLVIN

Filing 19

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations. For the foregoing reasons, we OVERRULE Mr. Dean's objections and ADOPT the result of the Magistrate Judge's Report and Recommendation with the additional supplementation set forth above. (See Order). Signed by Judge Sarah Evans Barker on 3/9/2018.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RUSSELL R. DEAN,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

No. 1:16-cv-03340-SEB-MJD

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
This is an action for judicial review of the final decision of Defendant
Commissioner of Social Security (“Commissioner”) finding Plaintiff Russell R. Dean not
entitled to Disability Insurance Benefits (“DIB”) Supplemental Security Income (“SSI”).
The Administrative Law Judge (“ALJ”) denied Mr. Dean’s application for DIB and SSI
after concluding that Mr. Dean’s residual functional capacity (“RFC”) would allow him
to perform past relevant work as a cashier or security guard. This case was referred to
Magistrate Judge Dinsmore for initial consideration. On November 9, 2017, Magistrate
Judge Dinsmore issued a report and recommendation suggesting that the Commissioner’s
decision be upheld because it was supported by substantial evidence and was otherwise in
accord with law. This cause is now before the Court on Plaintiff’s Objections to the
Magistrate Judge’s Report and Recommendation.

1

Standard of Review
We review the Commissioner’s denial of benefits to determine whether it was
supported by substantial evidence or the result of an error of law. Rice v. Barnhart, 384
F.3d 363, 368–369 (7th Cir. 2004); Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). In our review of the ALJ’s decision, we will not “reweigh
evidence, resolve conflicts, decide questions of credibility, or substitute [our] own
judgment for that of the Commissioner.” Lopez, 336 F.3d at 539. However, the ALJ’s
decision must be based upon consideration of “all the relevant evidence,” without
ignoring probative factors. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In other
words, the ALJ must “build an accurate and logical bridge” from the evidence in the
record to his or her final conclusion. Dixon, 270 F.3d at 1176. We confine the scope of
our review to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80,
93–95 (1943); Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011).
When a party raises specific objections to elements of a magistrate judge’s report
and recommendation, the district court reviews those elements de novo, determining for
itself whether the Commissioner’s decision as to those issues is supported by substantial
evidence or the result of an error of law. Fed. R. Civ. Pro. 72(b). The district court
“makes the ultimate decision to adopt, reject, or modify” the report and recommendation,
and it need not accept any portion as binding; the court may, however, defer to those
conclusions of the report and recommendation to which timely objections have not been
2

raised by a party. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th
Cir. 2009).
Discussion
Mr. Dean objects to the Magistrate Judge’s Report and Recommendation on a
single basis, to wit, that the Magistrate Judge failed to consider his contention that the
ALJ committed reversible error in failing to explain why he did not adopt Dr. Francis’s
opined overhead reaching and lifting restriction. [Dkt. 17.] As the sole challenge to the
Report and Recommendation, we address only this argument, deferring to all other
conclusions set forth in the Magistrate Judge’s Report and Recommendation.
Mr. Dean contends, and the Commissioner concedes, that the ALJ erred by failing
to explain why he did not accept Dr. Francis’s overhead reaching and lifting restriction in
determining Mr. Dean’s RFC. Dr. Francis opined that Mr. Dean was unable to reach
overhead. The ALJ found, instead, that Mr. Dean could perform occasional overhead
reaching. [Dkt. 9-2 at 31.] Mr. Dean contends that the ALJ’s failure to explain why he did
not include Dr. Francis’s overhead reaching and lifting restriction in Mr. Dean’s RFC,
despite giving the physician’s opinion “great weight,” was reversible error because Mr.
Dean’s past relevant work, which the ALJ determined he could perform, requires
overhead reaching. Accordingly, had the ALJ included Dr. Francis’s overhead reaching
restriction within Mr. Dean’s RFC, Mr. Dean would have been deemed unable to
complete his past relevant work, and the ALJ’s analysis would have moved to step five,
requiring a determination of whether Mr. Dean could perform any relevant work within
the national economy.
3

The Commissioner, however, argues that the ALJ’s failure to explain the reason(s)
he rejected Dr. Francis’s opinion as to the overhead reaching restriction is harmless error.
Under the doctrine of harmless error, the Court will not remand the case to the ALJ if it is
convinced that the ALJ would reach the same result on remand. McKinzey v. Astrue, 641
F.3d 884, 892 (7th Cir. 2011). Harmless error analysis is not “an exercise in rationalizing
the ALJ’s decision and substituting our own hypothetical explanations for the ALJ's
inadequate articulation.” Id. Because we agree with the parties here that the ALJ erred in
failing to explain his reasoning, “[t]he question before us is now prospective—can we say
with great confidence what the ALJ would do on remand . . . .” Id. An error is not
harmless if the ALJ might reach the same conclusion after carefully considering the entire
record, Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010); it is only harmless if a
reasonable ALJ would reach the same conclusion on remand.
The parties disagree as to which part of the ALJ’s analysis the harmless error
doctrine applies. The Commissioner contends that the relevant question is whether a
reasonable ALJ considering the entire record would reach the same conclusion on remand
as to whether to include Dr. Francis’s overhead reaching and lifting restriction as part of
Mr. Dean’s RFC. [Dkt. 14 at 5-7.] Mr. Dean, on the other hand, argues that the relevant
question is whether a reasonable ALJ considering the entire record would reach the same
conclusion on remand as to whether Mr. Dean could perform his past relevant work if he
were to be limited to no overhead reaching as Dr. Francis opined. [Dkt. 17.] We agree
with the Commissioner’s position on this issue. See McKinzey, 641 F.3d at 892 (holding
that an ALJ’s failure to explain the weight she gave to a physician’s opinion was
4

harmless error because no reasonable ALJ would reach a contrary decision on remand
regarding the claimant’s limitations).
Upon careful review of the evidentiary record, we hold that the ALJ’s error in
failing to “build an accurate and logical bridge from the evidence to his conclusion,”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000), when rejecting Dr. Francis’s
overhead reaching and lifting restriction was harmless because the evidence in the record
supports the conclusion that, on remand, no reasonable ALJ would reach a contrary
decision regarding Mr. Dean’s limitations.
The evidentiary record supports the ALJ’s RFC determination. In his opinion, the
ALJ discussed Mr. Dean’s past partial rotator cuff tear, indicating that he had received
surgery as treatment. [Dkt. 9-2 at 29; Dkt. 9-12 at 114.] There is sufficient evidence in the
record supporting the conclusion that Mr. Dean’s shoulder injury post-surgery did not
fully restrict his overhead reaching capacity. Immediately post-surgery, Mr. Dean was
given a fifty-pound weight restriction and a three-month lifting restriction, but those
limitations were temporary and have since expired. [Dkt. 9-2 at 33; Dkt. 9-13 at 827.]
Similarly, although three months post-surgery Mr. Dean was “not progressing how he
should be” [Dkt. 9-12 at 805], by six months post-surgery he was “doing well with
minimal pain” and his range of motion was “much better than before surgery.” [Dkt. 9-9
at 509]. The ALJ’s conclusion that Mr. Dean’s partial rotator tear appeared to be
appropriately treated by surgery [Dkt. 9-2 at 29], is therefore supported by the evidentiary
record.

5

The ALJ also considered evidence from treating physicians and examining
physicians regarding range of motion in Mr. Dean’s neck and shoulders, none of whom
opined that Mr. Dean’s limitations included no overhead reaching or lifting. Treating
physicians noted that, although during some examinations Mr. Dean had mild to
moderate limitation of motion in his neck and upper extremities [Dkt. 9-2 at 30; Dkt. 911 at 691; Dkt. 9-9 at 511-12; Dkt. 9-13 at 903], at other times he had a full range of
motion. [Dkt. 9-2 at 30; Dkt. 9-9 at 495; 501.] For example, Dr. Wang examined Mr.
Dean’s range of motion on November 19, 2012, one month after Mr. Dean’s application
was filed, and found a normal range of motion in both shoulders. [Dkt. 9-2 at 31; Dkt. 910 at 640, 645.] Dr. Wang did find mild tenderness in Mr. Dean’s right shoulder [Dkt 9-2
at 31; Dkt. 9-10 at 640], but concluded only that Mr. Dean was unable to perform
frequent overhead reaching, [Dkt. 9-10 at 642], not that he was unable to perform any
overhead reaching or lifting at all. Consistent with Dr. Wang’s assessment, the state
agency medical consultants found that Mr. Dean could perform limited overhead
reaching. [Dkt. 9-2 at 32; Dkt. 9-3 at 82, 94.] The ALJ also noted that x-rays done in
2013 on Mr. Dean’s cervical spine did not show any significant increase in abnormalities.
[Dkt. 9-2 at 30; Dkt. 9-12 at 722.]
In his report, Dr. Francis opined that Mr. Dean’s maximum RFC based on
degenerative disc disease, lumbar disc disease, bilateral shoulder impairments, and
obstructive sleep apnea would be medium work. [Dkt. 9-2 at 47.] Dr. Francis limited the
medium work by stating “[u]pper extremity use would probably be limited to no
overhead use of either shoulder.” [Id.] Dr. Francis also opined that the RFC could be
6

reduced to light work, if required by the evidence. [Id.] Although the ALJ gave Dr.
Francis’s opinion “great weight,” he found that Dr. Francis “may not have fully
considered the claimant’s subjective complaints to the extent they are at least reasonable
[sic] consistent with the objective medical evidence, clinic findings, treatment history,
and [the plaintiff’s] prior reports,” [Id. at 32-33], and did not include Dr. Francis’s
overhead reaching and lifting restriction in Mr. Dean’s RFC.
Mr. Dean contends that because Dr. Francis “was the only medical source who
reviewed the entire record [, . . .] his opinion should have been given the most weight
under the regulations.” [Dkt 17 at 2.] However, Dr. Francis had neither examined nor
treated Mr. Dean prior to giving his testimony. [Dkt. 9-2 at 44.] Dr. Francis did not
examine, treat, or evaluate Mr. Dean’s conditions more than one time. Additionally, Dr.
Francis was not a specialist opining on his area of expertise. Thus, under the factors set
forth in 20 C.F.R. § 404.1527(c)(1)-(6), the ALJ was not required to give more weight to
Dr. Francis’s opinion than to Dr. Wang’s, an examining physician [Dkt. 9-10 at 637-640],
or to Dr. Alcock’s, a treating physician [Dkt. 9-11].
After reviewing the medical evidence and weighing the opinions of several
medical professionals, the ALJ ultimately implemented the overhead reaching and lifting
limitation opined by state agency physicians, Dr. Wang, and Dr. Alcock. The ALJ stated
that the determined RFC would appropriately accommodate Mr. Dean’s physical
restrictions. Although the ALJ erred by failing to explain his reasons for not adopting Dr.
Francis’s overhead reaching and lifting restriction, the medical evidence in the record
from state agency physicians, Dr. Wang and Dr. Alcock, as well as digital imaging and
7

the opinions of other treating physicians supports the conclusion that no reasonable ALJ
would adopt Dr. Francis’s opinion as to Mr. Dean’s overhead reaching and lifting
limitations because it is inconsistent with the record evidence as a whole. Accordingly,
the ALJ’s error is harmless and does not necessitate remand.
Conclusion
For the foregoing reasons, we OVERRULE Mr. Dean’s objections and ADOPT
the result of the Magistrate Judge’s Report and Recommendation with the additional
supplementation set forth above.
IT IS SO ORDERED.

3/9/2018
Date: _________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Howard D. Olinsky
OLINSKY LAW GROUP
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

8