Zellner v. Commissioner of Social Security
Filing
11
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 10 Report and Recommendation. The Court REVERSES the decision of the ALJ that Plaintiff be denied disability insurance benefits and supplemental security income, REMANDS this matter under Sentence Four of 42 USC Section 405(g) to the ALJ for proceedings consistent with this Opinion, and DISMISSES this case from the Court's docket. Signed by Judge S Arthur Spiegel on 12/14/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RANDY LEE ZELLNER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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NO. 1:10-CV-812
OPINION AND ORDER
This matter is before the Court on the Magistrate Judge’s
November 18, 2011 Report and Recommendation (doc. 10), to which no
objections were filed. For the reasons indicated herein, the Court
AFFIRMS the Magistrate Judge’s recommended decision and ADOPTS the
Magistrate Judge’s Report and Recommendation in all respects,
REVERSES the decision of the Administrative Law Judge as it was not
supported by substantial evidence in the administrative record, and
REMANDS this case for further proceedings consistent with this
Opinion and the specific recommendations of the Magistrate Judge.
The procedural and factual background of this case are
well-detailed in the Magistrate Judge’s Report and Recommendation,
and the Court will not reiterate it here.
Plaintiff
applied
supplemental
for
security
In brief, however,
disability
insurance
income
August
on
benefits
29,
2007,
and
for
alleging
disability since July 4, 2007 because of peripheral polyneuropathy,
sleep apnea, and degenerative disc disease (doc. 10 at 1-2).
On
January 6, 2010, the Administrative Law Judge (“ALJ”) issued a
decision denying Plaintiff’s applications, a determination that
Plaintiff
subsequently
unsuccessfully
appealed
(id.
at
2).
Plaintiff then sought review from this Court. The Magistrate Judge
reviewed the record and, in her November 18, 2011 Report and
Recommendation, concluded that the ALJ erred in not reviewing or
considering the records and test results of Plaintiff’s treating
physician, Dr. Oded Zmora; in failing to afford Dr. Zmora’s opinion
“controlling weight;” in not satisfying the “good reasons” standard
for
rejecting
Dr.
Zmora’s
opinion;
in
assessing
Plaintiff’s
residual function capacity; in evaluating the medical evidence of
record (particularly concerning Plaintiff’s use of his forearms,
hands,
and
fingers);
in
assessing
Plaintiff’s
credibility
(including, but not limited to, his “inappropriate factoring in of
substance abuse in the course of evaluating Plaintiff’s symptoms”);
and in posing a hypothetical question to a vocational expert that
did not include the information contained within the records and
test
results
of
Plaintiff’s
treating
physician,
rendering
it
unsupported by substantial evidence (id. at 7-10, 11, 15, and 17).
No objections to the Report and Recommendation of the
Magistrate Judge were filed, and the Court finds no clear error in
the record.
See Advisory Committee Notes to Fed. R. Civ. P. 72;
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that
Congress
intended
to
require
district
court
review
of
a
magistrate’s factual or legal conclusions, under a de novo or any
other standard, when neither party objects to those findings.”).
On the contrary, the Court finds the Magistrate Judge’s Report and
Recommendation well-reasoned, thorough, and correct. Accordingly,
this Court ADOPTS and AFFIRMS the Magistrate Judge’s Report and
Recommendation (doc. 10), REVERSES the decision of the ALJ that
Plaintiff be denied disability insurance benefits and supplemental
security income, REMANDS this matter (under sentence four of 42
U.S.C. § 405(g)) to the ALJ for proceedings consistent with this
Opinion, and DISMISSES this case from the Court’s docket.
Remand
is appropriate in cases, as here, when there is insufficient
evidence in the record to support the Defendant Commissioner’s
conclusion and further fact-finding is necessary.
See Faucher v.
Secretary of Health and Human Servs., 17 F.3d 171, 176 (6th Cir.
1994).
On remand, as the Magistrate Judge recommended, the ALJ
should carefully reevaluate: (1) the weight to be given to the
opinion of Plaintiff’s treating physician Dr. Oded Zmora; (2)
whether
the
administrative
record
reveals
any
additional
limitations, including restrictions in Plaintiff’s use of his
forearms, hands, and fingers; and (3) Plaintiff’s credibility, with
particularly attention devoted to the admonition of the Magistrate
Judge at pages 11-16 of her Report and Recommendation (doc. 10).
SO ORDERED.
Dated: December 14, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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