Smith v. Commissioner of Social Security

Filing 17

DECISION AND ENTRY ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATEJUDGE (DOC. # 14 ); OBJECTIONS OF DEFENDANT NANCY A. BERRYHILL,ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,TO SAID JUDICIAL FILING (DOC. # 15 ) ARE SUSTAINED IN PART ANDOVERRULED IN PART; JUDGMENT TO BE ENTERED IN FAVOR OFPLAINTIFF DONNEL SMITH AND AGAINST THE DEFENDANTCOMMISSIONER, REVERSING THE DEFENDANT COMMISSIONER'SDECISION THAT PLAINTIFF WAS NOT DISABLED AND, THEREFORE, NOTENTITLED TO BENEFITS UNDER THE SOCIAL SECURITY ACT, ANDREMANDING THE CAPTIONED CAUSE TO THE COMMISSIONER FORFURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION;TERMINATION ENTRY. Signed by Judge Walter H. Rice on 3/15/2018. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DONNEL SMITH,
Plaintiff,
vs.

Case No. 3:16-cv-428
JUDGE WALTER H. RICE

NANCY A. BERRYHILL,

MAGISTRATE JUDGE
SHARON L. OVINGTON

Acting Commissioner of the
Social Security Administration,
Defendant.

DECISION AND ENTRY ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE
JUDGE (DOC. #14); OBJECTIONS OF DEFENDANT NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION ,
TO SAID JUDICIAL FILING (DOC. #15) ARE SUSTAINED IN PART AND
OVERRULED IN PART; JUDGMENT TO BE ENTERED IN FAVOR OF
PLAINTIFF DONNEL SMITH AND AGAINST THE DEFENDANT
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 COMMISSIONER FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION;
TERMINATION ENTRY

Plaintiff Donnel Smith ("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
disability benefits.

On February 12, 2018, Magistrate Judge Sharon L. Ovington filed a

Report and Recommendations, Doc. #14, 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 as not supported by
substantial evidence, and that the captioned cause be remanded for an immediate award
of benefits.

Based upon a thorough de novo review of this Court's file, including the

Admin istrative Transcri pt, Doc. #6, and a thorough review of the applicable law, th is Court
ADOPTS IN PART and REJECTS IN PART the Report and Recommendations and
SUSTAINS IN PART AND OVERRULES IN PART the Commissioner's Objections, Doc.
#15, 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 as not
supported by substantial evidence, and remanding the captioned cause to the
Commissioner fo r further proceedings consistent with this opinion.
In 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

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accept as adequate to support a conclusion. "

Richardson v. Perales, 402 U.S. 389, 401 ,

91S .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)).
In 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. "
772 (6th Cir. 2001 ).

Buxton v. Halter, 246 F.3d 762,

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)).

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In addition to the foregoing, in ruling as aforesaid , this Court makes the following ,
non-exclusive, observations:

1.

In the Report and Recommendations, the Magistrate Judge concluded that

"[i]n light of the strong evidence of record [supporting a finding of disability,] while contrary
evidence is lacking, there is no just reason to further delay this matter by requiring
additional administrative proceedings .. .. Accordingly, a reversal of the ALJ 's decision and
a judicial award of benefits are warranted. " Doc. #14, PAGEID #1548. In the conclusion
to her Objections, the Commissioner, without further argument or explanation elsewhere in
the Objections, argues that "the Magistrate [Judge]'s Report and Recommendation[s]
should be rejected and the [Commissioner's Administrative Law Judge's ('ALJ') decision
should be affirmed ." Doc. #15, PAGEID #1552 . The Court agrees with the Magistrate
Judge's conclusion that the ALJ erred in his evaluation of the opinions of Giovanni Bonds,
Ph.D., Plaintiffs erstwhile treating psychologist, as "[t]here is no indication ... that the
[ALJ] even considered the treating physician rule when he weighed Dr. Bonds'[s] opinions."
Doc. #14, PAGEID #1543. As the ALJ's discussion of the other factors required to be
considered in weighing Dr. Bonds's opinions, 20 C.F.R. § 404.1527(c)(3-6), was also
inadequate, Doc. #14, PAGEID #1543-44, the ALJ's finding of non-disability was not
supported by substantial evidence and must be reversed.

2.

The Magistrate Judge concluded that the opinions of the Commissioner's

record reviewing sources were of "minimally probative" value, while the limitations opined

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by Plaintiff's treating sources, Dr. Bonds and Kevin Moffa, M.D., Plaintiff's treating
physician, if adopted , would have caused Plaintiff to be found disabled, were backed by
the sources' "extensive treatment notes, and the objective medical evidence presented
which support their opinions. " Doc. #14, PAGEID #1547-48. Accordingly, the Magistrate
Judge concluded, all factual issues had been resolved , and remand for an immediate
award of benefits, rather than further proceedings, was warranted.

Id. , PAGEID #1548.

Under the fourth sentence of 42 U.S.C. § 405(g), the Court may remand a case for
benefits, rather than rehearing , but such a remand "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) (emphasis added); accord:

Kalmbach v. Comm'rof Soc. Sec., No. 09-2076 (6th

Cir. 2011) (quoting Faucher, 17 F .3d at 176) ("Generally, benefits may be awarded
immediately 'only if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits."').
In her Objections, the Commissioner claims that "there was ample evidence in the
record contradicting Dr. Bonds'[s] opinion[,]" Doc. #15, PAGEID #1550-51; specifically, the
Commissioner's record reviewing sources, Katherine Fernandez, Psy. D., Maureen
Gallagher, D.O ., Aracelis Rivera, Psy.D., and Esberdado Villanueva, M.D., all opined that
Plaintiff was not disabled. Id. , PAGEID #1551 (citing Doc. #6-3, PAGEID #138-42 , 150,
152-54).

Further, while Dr. Moffa opined that Plaintiff would be absent from work at least

three days per month, his treatment notes showed largely normal findings between March
2014 and April 2015. Id. (citing Doc. #6-10, PAGEID #1444, 1449, 1456-57, 1464-65).
In light of such evidence, the Commissioner argues, the captioned cause does not meet

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the Faucher standard for remand for benefits. Id., PAGEID #1551-52. The Court
agrees. Even if, as the Magistrate Judge concluded, the opinions of the record-reviewing
sources were "minimally probative," because they were rendered prior to Dr. Bonds's most
recent finding , Doc. #14, PAGID #1547-48, such determination and explanation are the
province of the Commissioner, not this Court. For that reason alone, remand for further
proceedings is required.
Plaintiff argues that the opinions of the Commissioner's record-reviewing sources
vis-a-vis the treating sources cannot serve as "the conflicting substantial evidence" upon
which a finding of non-disability may reasonably be made. Doc. #16, PAGEID #1556
(quoting Gayheart v. Comm'rof Soc. Sec. , 710 F.3d 365, 377 (6th Cir. 2013)). However,
lack of inconsistency with other evidence of record is one of the factors that the
Commissioner must consider at both steps of the treating physician rule. 20 C.F.R. §
404.1527(c)(2)(ii), (c)(4).

Moreover, any lack of supportability of Ors. Bonds and Moffa's

opinions by their treatment notes would also qualify as the requisite "good reasons, "

Kalmbach, 409 F. App'x at 853, for the Commissioner to discount their opinions.

It is the

job of the Commissioner, not of this Court, to make such determinations, and the
Commissioner must have the opportunity on remand to do so.

WHEREFORE, based upon the aforesaid, this Court ADOPTS IN PART and
REJECTS IN PART the Report and Recommendations of the Magistrate Judge. Doc.
#14. The Commissioner's Objections to said judicial filing, Doc. #15, are SUSTAINED IN
PART AND OVERRULED IN PART.

Judgment shall enter in favor of Plaintiff and

against the Commissioner, reversing the Commissioner's decision that Plaintiff was not

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disabled under the Act, and remanding the captioned cause to the Commissioner for
further proceedings consistent with this opinion.
The 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.

March 15, 2018
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

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