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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEVEN A. ACTON, : 

 : Case No. 2:12-cv-1049 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Kemp 

COMMISSIONER OF : 

SOCIAL SECURITY, : 

 : 

 Defendant. : 

OPINION & ORDER 

I. INTRODUCTION 

 This matter is before the Court on Plaintiff’s Objections (Doc. 14) to the Magistrate 

Judge’s July 16, 2013 Report and Recommendation (Doc. 13), recommending that the Court 

overrule Plaintiff’s Statement of Errors (Doc. 8) and that judgment be entered in favor of 

Defendant Commissioner of Social Security. Upon independent analysis by the Court, and for 

the reasons set forth below, the Court ADOPTS IN PART the Report and Recommendation. 

Plaintiff's Statement of Error is SUSTAINED IN PART and OVERRULED IN PART.

II. BACKGROUND 

 Plaintiff brings this action under 42 U.S.C. § 405(g) for review of a final decision of the 

Commissioner of Social Security, denying his application for disability insurance benefits under 

the Social Security Act. (Doc. 2). Plaintiff worked in interior and exterior landscaping, until his 

onset date, installing shrubs and trees and performing a variety of tasks that required heavy 

lifting. Beginning in 2004, he began to experience frequent headaches. Thereafter, Plaintiff 

began to suffer from stiffness, limited mobility in his neck, tingling in his left hand, problems 

gripping with both hands, upper back problems, and the psychological effects arising from his 

physical condition, including depression. He received chiropractic treatment that included 

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traction, electric stimulation, and massage therapy. His physician also treated him with 

medication that resulted in some mental confusion. Plaintiff’s medical history is thoroughly and 

accurately summarized in the Report and Recommendation. (See Doc 13 at 3-6). 

 Plaintiff applied for benefits on June 24, 2009, claiming disability since February 10, 

2005. He received a videoconference hearing before an administrative law judge (the “ALJ”) on 

March 24, 2011. The ALJ denied benefits in an April 14, 2011 decision. The ALJ found that 

Plaintiff met the insured status requirements of the Social Security Act up to December 31, 2010. 

He also found that Plaintiff had a number of severe impairments. The ALJ further found, 

however, that Plaintiff’s impairments never met the requirements of the Listing of Impairments 

found in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ determined that Plaintiff retained 

residual functional capacity to perform light work with certain limitations. The ALJ held that 

Plaintiff could perform jobs identified by the vocational expert and that such jobs existed in 

significant numbers in both the national and state economies. The ALJ, therefore, concluded that 

Plaintiff was not entitled to benefits. 

III. STANDARD OF REVIEW 

 In reviewing the Commissioner's decision, the Magistrate'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 objection to the Report and Recommendations, is required to 

make a de novo review of those recommendations to which objection is made. This de novo

review, in turn, requires the Court to re-examine all the relevant evidence, previously reviewed 

by the Magistrate, to determine whether the findings of the Commissioner are supported by 

“substantial evidence.” Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 

1053 (6th Cir. 1983); Gibson v. Secretary of Health, Education and Welfare, 678 F.2d 653, 654 

(6th Cir. 1982). This Court's sole function is to determine whether the record as a whole 

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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 

(1971) (citing Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938); Landsaw v. 

Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986)). Substantial 

evidence means such relevant evidence as a reasonable mind might accept as adequate to support 

a conclusion. Richardson, 402 U.S. at 401; Ellis v. Schweicker, 739 F.2d 245, 248 (6th Cir. 

1984). Substantial evidence is more than a mere scintilla, but only so much as would be required 

to prevent a directed verdict (now judgment as a matter of law) against the Commissioner if this 

case were being tried to a jury. NLRB v. Columbian Enameling and Stamping Company, 306 

U.S. 292, 300 (1939); Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988). 

 The findings of the Commissioner and proceedings on Claimant’s application for social 

security disability benefits are not subject to reversal merely because there exists in the record 

substantial evidence to support a different conclusion. Buxton v. Halter, Commissioner of Social 

Security, 246 F.3d 762 (6th Cir. 2001). If the Commissioner’s decision is supported by 

substantial evidence, it must be affirmed, even if the Court as a trier of fact would have arrived at 

a different conclusion. Elkins v. Secretary of Health and Human Services, 658 F.2d 437, 439 

(6th Cir. 1981). 

 Under the treating source regulations, the Commissioner generally gives “more weight to 

opinions from [the claimant's] treating sources, since these sources are likely to be the medical 

professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical 

impairment(s).” 20 C.F.R. § 404.1527(d)(2). The Commissioner will give the opinion of a 

treating physician controlling weight, if the opinion is well-supported and not inconsistent with 

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the other substantial evidence. Id. When the opinion of the treating physician is not given 

controlling weight, factors such as the length of the treatment relationship, nature and extent of 

the treatment relationship, and the supportability of the physician's opinion will be considered in 

determining how much weight to afford the opinion. Id. The regulations also require the ALJ to 

give “good reasons in our notice of determination or decision for the weight . . . give[n] your 

treating source's opinion.” 20 C.F.R. § 404.1527(d)(2); see also Social Security Ruling 96-5p 

(requiring the ALJ to provide an explanation of “the consideration given to the treating source's 

opinion(s)” on issues reserved to the Commissioner). “‘The requirement of reason-giving exists, 

in part, to let claimants understand the disposition of their cases,’ particularly in situations where 

a claimant knows that his physician has deemed him disabled and therefore ‘might be especially 

bewildered when told by’” an ALJ that he is not disabled. Wilson v. Comm'r of Soc. Sec., 378 

F.3d 541, 544 (6th Cir. 2004) (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). 

IV. ANALYSIS 

 In his statement of specific errors and his objection to the Report and Recommendation, 

Plaintiff argues that the ALJ did not properly evaluate the opinion of his treating source, Dr. 

Masone, under 20 C.F.R. § 404.1527(d)(2). (Doc. 8 at 7-10; Doc. 14 at 5-7). He also argues that 

the ALJ failed to evaluate appropriately the opinion of another treating source, Dr. Maynard. 

(Doc. 8 at 10-14; Doc 14 at 2-5). Plaintiff further asserts that the ALJ relied on irrelevant 

evidence in his determination of Plaintiff’s credibility. (Doc. 8 at 14-16; Doc. 14 at 7-8). 

 In her response, Defendant maintains that the ALJ discussed the record evidence at length 

in its decision and made clear to Plaintiff and the reviewing Court the basis for its evaluation of 

Drs. Masone and Maynard’s opinions. (Doc. 15 at 2-3). Defendant argues that the ALJ provided 

sufficiently detailed reasoning for finding Plaintiff was less than fully credible. (Doc. 15 at 3). 

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 After an independent review of both the record and applicable law, this Court adopts the 

Magistrate Judge’s analysis as to Dr. Maynard’s treating source opinion and as to the ALJ’s 

credibility finding with regard to Plaintiff. As the Magistrate Judge noted with regard to Dr. 

Maynard, “The law in this Circuit is clear that a chiropractor is not an acceptable medical source 

and that the regulation (20 C.F.R. § 404.1527(d) requiring special deference to the opinions of 

treating sources) does not apply to chiropractors.” (Doc. 13 at 9). Further, the ALJ did address 

issues of supportability and consistency as to Dr. Maynard’s opinion, even though not subject to 

the more rigorous requirements of § 1527(d)(2). (Id. at 10). Regarding the ALJ’s credibility 

finding, the Magistrate Judge observed that “it is up to the ALJ to consider all of the evidence of 

record, taken together, in deciding how much weight to assign to a claimant’s testimony.” (Id. at 

16). The Magistrate Judge correctly gave the ALJ’s resolution of inconsistencies between 

Plaintiff’s testimony and record evidence “great weight and deference.” (Id.; see Cunningham v. 

Astrue, 360 F. App’x. 606, 613 (6th Cir. 2010)). 

 This Court adopts a different view, however, as to the deference given to Dr. Masone’s 

treating source opinion. The reviewing Court must rely on the ALJ’s statement of reasons why a 

treating source opinion was rejected. The Court may not attribute reasoning to the ALJ that goes 

unstated in the administrative decision. See Williams v. Astrue, No. 3:08-CV-00168 2009 WL 

2148625, at *8 (S.D. Ohio July 14, 2009). Here, the ALJ explained his reasoning as follows: 

As for the opinion evidence, the undersigned gives the opinion of 

Dr. Masone, the claimant’s pain management specialist, some 

weight with regard to the claimant’s standing and walking abilities, 

grasping and fine manipulation abilities, ability to use his feet for 

repetitive movements, and postural limitations as consistent with 

the evidence of record and the claimant’s reported abilities and 

activities. However, the undersigned finds the Claimant’s lifting 

capacity greater than indicated based on vocational evaluation 

data. 

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(Doc. 13 at 12). As the Magistrate Judge noted, the ALJ did not acknowledge that Dr. Masone 

was a treating source. (Id. at 13). It is also clear that the ALJ did not afford Dr. Masone’s 

treating source opinion controlling weight. Further, the record and ALJ decision, when viewed 

in whole, both contain substantial evidence supporting the ALJ’s ultimate decision. (Id. at 14). 

A finding that substantial evidence exists to support the ALJ’s ultimate decision, however, does 

not halt the de novo review when a plaintiff has alleged that the ALJ failed to comply with the 

procedures set forth in 20 C.F.R. § 404.1527(d)(2). 

 In Wilson v. Comm'r of Soc. Sec., the Court of Appeals held that reversal is required 

when an ALJ fails to follow the treating source regulations and does not “give good reasons” for 

not affording controlling weight to a treating physician's opinion in the context of a disability 

determination. 378 F.3d at 544. The court reasoned that the treating source regulations impose a 

clear procedural requirement that the ALJ is bound to follow. Id. Ordinarily, an ALJ must give 

more weight to opinions from treating sources because the treating physician can provide a more 

thorough assessment of the claimant’s impairments and has unique insights into the medical 

evidence that cannot be obtained elsewhere. Id.; 20 C.F.R. § 404.1527(d)(2). As the Wilson 

Court explained, “[i]f the opinion of a treating source is not accorded controlling weight, an ALJ 

must apply certain factors—namely, the length of the treatment relationship and the frequency of 

examination, the nature and extent of the treatment relationship, supportability of the opinion, 

consistency of the opinion with the record as a whole, and the specialization of the treating 

source—in determining what weight to give the opinion.” 378 F.3d at 544. 

 The Sixth Circuit also recognized that the regulations establish “a clear procedural 

requirement.” Id. In Wilson, the Court found that the ALJ failed to clarify why the treating 

source’s opinion was not well-supported or why the treating source’s opinion was inconsistent 

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with other substantial record evidence. Id. at 546. The ALJ also failed to identify what evidence 

supported the findings and failed to explain its application of the § 404.1527(d)(2) factors. Id. 

As a result, the Court concluded, “Reversal is therefore required.” Id. 

 The Wilson Court went on to explain that the ALJ’s failure to give “good reasons” for not 

crediting treating source opinions “does not constitute harmless error” even when the district 

court concluded that the treating source’s opinion was not supported by the record and that there 

was substantial evidence supporting the ALJ’s decision to afford the treating source little weight. 

Id. Although the ALJ “could” have relied on record evidence to reject the treating source 

opinion, “[t]he argument is not persuasive”: 

[a] court cannot excuse the denial of a mandatory procedural 

protection simply because, as the Commissioner urges, there is 

sufficient evidence in the record for the ALJ to discount the 

treating source’s opinion and, thus, a different outcome on remand 

is unlikely. . . . To hold otherwise, and to recognize substantial 

evidence as a defense to non-compliance with § 1527(d)(2), would 

afford the Commissioner the ability [to] violate the regulation with 

impunity and render the protections promised therein illusory. 

Id. The § 1527(d)(2) requirements is a “substantial” right because the regulations establish “an 

important procedural safeguard for claimants for disability benefits.” Id. at 547. 

 As in Wilson the ALJ’s opinion here addressed numerous items of evidence that might 

have been given more or less weight than Dr. Masone’s treating source opinion. The Plaintiff 

and the reviewing Court, however, are left to infer exactly how the ALJ applied those facts to the 

various § 1527(d)(2) factors. A discussion of the available evidence, even with a well-developed 

record, is not the same as weighing the factors. The critical step in this analysis is the way in 

which an ALJ applies certain facts to the § 1527(d)(2) factors. As the Wilson Court noted, a 

decision denying benefits “must contain specific reasons for the weight given to the treating 

source’s medical opinion, supported by the evidence in the case record, and must be sufficiently 

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specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating 

source’s medical opinion and the reasons for that weight.” 378 F.3d at 544 (quoting Soc. Sec. 

Rul. 96-2p, 1996 WL 374188, at *5 (1996)). The explicit application of facts to the § 1527(d)(2) 

factors constitutes the “specific reasons for the weight given to the treating source’s medical 

opinion” and serves as a substantial procedural protection of Plaintiff’s interests. Evidence in the 

case record may give support to the reasons, but it cannot stand as a substitute for the reasons 

themselves. The regulations provide a clearly enumerated list of factors under § 1527(d)(2). 

The least an ALJ can do to protect a claimant’s interests is to explain how it applies the facts of a 

denied claim to those enumerated factors when it has chosen not to afford a treating source’s 

opinion controlling weight. 

 For these reasons, the Court SUSTAINS Plaintiff’s Objection to the Report and 

Recommendation with respect to the ALJ’s failure to comply with 20 C.F.R. § 404.1527(d)(2) as 

applied to Dr. Masone’s treating source opinion. 

V. CONCLUSION 

 For the foregoing reasons, the Report and Recommendation is ADOPTED IN PART as 

to the ALJ’s treatment of Dr. Maynard’s treating source opinion and as to the ALJ’s credibility 

finding. Plaintiff’s Objection is OVERRULED IN PART as to these arguments. Because the 

ALJ violated the agency’s own procedural regulation, however, by failing to comply with 20 

C.F.R. § 404.1527(d)(2), Plaintiff’s Objection is SUSTAINED IN PART as to the ALJ’s 

treatment of Dr. Masone’s treating source opinion, and this Court REVERSES the ALJ’s 

decision and REMANDS for further proceedings consistent with this opinion. 

 IT IS SO ORDERED. 

 /s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: March 24, 2014 

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