the Magistrate Judge’s Report and Recommendations, is required to make a de
novo review of those administrative record 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.” Aichardson 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. . . . [I]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

1 Now referred to as a “Judgment as a Matter of Law in a Jury Trial.” Fed. R. Civ. P. 50
5


Defendant Commissioner and against Plaintiff Billy Schleiger, affirming the
Commissioner's decision that Plaintiff was not disabled and, therefore, not entitled
to benefits under the Social Security Act, for the period of June 1, 2012, through
August 4, 2014.

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.

September 30, 2019 fb Mis hen

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

Copies to:

Counsel of record


Dr. Hughes, who opined that Plaintiff could perform a reduced range of light work.
Doc. #14, PAGEID#809. This is so, according to the Commissioner, because the ALJ
found that Plaintiff had relatively “conservative treatment, generally unremarkable
x-rays, and EMG report showing only mild peripheral neuropathy.” /d.,
PAGEID#810. The ALJ’s finding, however, is at odds with the substantial evidence
to the contrary. Specifically, following an emergency room visit for pain in early
June of 2013, Plaintiff had had surgery to remove much of the hardware in his
lower extremities. Approximately one year later, Plaintiff had returned to his
primary care provider reporting no difference in his pain and was complaining of
severe pain in his right thigh with cramping that kept him from sleeping. By July of
2014 through mid- August of 2014, he was undergoing physical therapy with
intermittent improvement. As a result of continued pain, by October of 2014, he
began pain management treatment which continued through the August 2016,
administrative hearing, and was placed on additional pain medications, including
Hydrocodone and other prescriptions. Imaging of Plaintiff's left ankle in February
2015 was not “unremarkable” in that it showed unhealed screw holes, loose
metallic fragments, hypertrophic calcification, cystic changes, and soft tissue
swelling. While the EMG showed “mild peripheral neuropathy,” as explained by
the Magistrate Judge, “Plaintiff does not allege disabling limitations secondary to
lower-extremity neuropathy, but due to his persistently worsening residuals caused

by the severe trauma he suffered in his lower extremities, his resulting invasive

7


F.2d 839, 840 (6th Cir. 1986) (quoting V.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 A//en v. Califano, 613 F.2d 139, 145 (6th Cir. 1980)).
However, the Court “may not try the case de novol;] nor resolve conflicts in
evidence[;] nor decide questions of credibility. Jordan v. Comm’ 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.” E/kins 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)).

In addition to the foregoing, this Court makes the following, non-exclusive,
observations as to the closed period from June 1, 2012, through August 4, 2014:

1. The Commissioner's objections assert that contrary to the Magistrate
Judge’s Report, the ALJ was correct to assign “moderate weight” to the opinions
of consultative examiner Dr. Onamusi, who opined that Plaintiff could perform

sedentary to light work, and both state agency reviewing physicians, Dr. Amiri and

6


3. On August 5, 2014, Plaintiff turned fifty years of age and became a
“[P]erson approaching advanced age,” 20 C.F.R. § 404.1563(d). As noted by the
Commissioner, “The most restrictive medical opinion in the record (that of Dr.
Onamusi) limits Plaintiff to sedentary work. Assuming that Plaintiff could perform
the full range of sedentary work, the Agency’s medical vocational guidelines, or
“grids,” could be applied to determine that Plaintiff was disabled only as of August
5, 2014.” Doc. #14, PAGEID#815. Commissioner's Medical Vocational Guidelines.
See 20 C.F.R. App’x 2 to Subpt. P of Pt. 404 §201.14. Given the findings and
assessment of Dr. Onamusi’s consultative evaluation, as cited by the ALJ, Doc. #6-
2, PAGEID##48 and 50; Doc. #6-7, PAGEID##461-463, and including the
assessments of Dr. Amiri and Dr. Hughes, there is substantial evidence to support
the Commissioner's assumption of Plaintiff's ability to “perform the full range of
sedentary work,” for the closed period from June 1, 2012, through August 4, 2014.

Accordingly, the Court adopts in part and rejects in part the Report and
Recommendations, Doc. #13, and sustains in part and overrules in part the
objections of Defendant, Doc. #14. Judgment is to enter in favor of Plaintiff Billy
Schleiger and against the Commissioner, reversing the 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), with the onset of

benefits to be calculated from August 5, 2014. Judgment is to enter in favor of

9


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

BILLY SCHLEIGER,
Plaintiff, : Case No. 3:18-CV-00016
vs. : JUDGE WALTER H. RICE
NANCY A. BERRYHILL,
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. #13); OBJECTIONS OF DEFENDANT NANCY A.
BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION, TO SAID JUDICIAL FILING (DOC. #14) SUSTAINED IN
PART AND OVERRULED IN PART; JUDGMENT TO BE ENTERED IN
FAVOR OF PLAINTIFF BILLY SCHLEIGER AND AGAINST THE
DEFENDANT COMMISSIONER, REVERSING THE 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 THE PAYMENT OF BENEFITS WITH THE ONSET OF
BENEFITS TO BE CALCULATED FROM AUGUST 5, 2014; JUDGMENT TO
BE ENTERED IN FAVOR OF DEFENDANT COMMISSIONER AND
AGAINST PLAINTIFF BILLY SCHLEIGER, AFFIRMING THE
COMMISSIONER'S DECISION THAT PLAINTIFF WAS NOT DISABLED
AND, THEREFORE, NOT ENTITLED TO BENEFITS UNDER THE SOCIAL
SECURITY ACT FOR THE PERIOD OF JUNE 1, 2012 THROUGH AUGUST
4, 2014;TERMINATION ENTRY



surgeries, and the failure of his 2013 surgery to ameliorate his left-ankle pain and
swelling.” Doc. #14, PAGEID#809.

2: The objections also contend that while the “ALJ acknowledged the
limitations Plaintiff placed on his activities,” he “nevertheless properly concluded
that his statements about the intensity, persistence, and limiting effects of his
physical impairments were not entirely credible in light of his medical records,
medical opinion evidence, daily activities, and his presentation at the hearing.”
Doc. #6-2, PAGEID## 45-50. A de novo review of the record, however, shows that
the ALJ improperly characterized and over generalized Plaintiff's testimony. See
Lee v. Commissioner, No. 3:14-cv-291 Report & Recommendations * 13 (S.D. Ohio,
Feb. 12, 2016) (MJ Ovington, J Rice) (An ALJ errs in mischaracterizing or over-
generalizing a claimant's testimony.). Admittedly, certain medical records cited by
the ALJ contain entries that Plaintiff had mowed the grass, taken bags of salt down
the stairs to his basement, and walked “two to three miles the previous day”, Doc.
#6-2, PAGEID#47. These entries, however, were from July of 2014. In his
testimony at the hearing in August of 2016, Plaintiff testified that he has not mowed
grass in “[T]wo, three years,” that he never carried salt bags down the steps but
instead “rolled them,” and that he had pain in walking from the car to the hearing.
/d., PAGEID##76-78. Plaintiff also explained at the 2016 hearing the problems he
has going up and down stairs, his difficulty driving due to pressing on the gas for

extended periods. /d., PAGEID##69-70.


“only to the period following August 5, 2014,” and that the Social Security
Administration should be instructed “not to disturb that award during any remand
proceedings regarding Plaintiff's disability status for the prior period.” /d.

Based upon the 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 Record,
Doc. #6, and a thorough review of the applicable law, this 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. #14, to said judicial filing. The Court,
in so doing, enters judgment 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 Social Security Act, as not supported by
substantial evidence, and remands the captioned cause to the Defendant
Commissioner, pursuant to sentence four of 42 U.S. C. § 405(g), for further
proceedings consistent with the adopted portions of the Reports and
Recommendations. On remand, the Commissioner is directed to commence
payment of benefits to Plaintiff with the onset of benefits to be calculated from
August 5, 2014, the date he turned fifty years of age.

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
4


reversed, that the case be remanded to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for payment of benefits and that the case be
terminated on the docket of this Court.

The Commissioner has filed objections to the Magistrate Judge’s filing, Doc.
#14, asserting that Plaintiff was not disabled, not entitled to benefits for the closed
period from June 1, 2012, through August 4, 2014, and that while the Magistrate
Judge found that the evidence supported the consultative examiner Dr. Onamusi’s
opinion “that Plaintiff could perform sedentary work, two state agency doctors
thought he was not disabled, which makes an award of benefits unsupported by
the administrative record and contrary to the law.” /d., PAGEID#809. The
Commissioner further argued

even the most restrictive medical opinion, obtained from Dr.

Onamusi, limited Plaintiff to ‘sedentary to light’ work and is not

necessarily work-preclusive. As Plaintiff acknowledged, a limitation to

a full range of sedentary work would only render him disabled as of

August 5, 2014, when he turned 50 years old. (citation omitted). Thus,

if the Court chooses to uphold the Report’s recommendation, it

should limit the payment of benefits to begin on August 5, 2014.
/d., PAGEID#809.

Plaintiff contends that “while modifying the Report and Recommendations
to direct payment of benefits for the period beginning on August 5, 2014 would not
be unreasonable, adopting the Chief Magistrate Judge’s Report and

Recommendations in full is also reasonably merited.” Doc. #15, PAGEID#825.

Plaintiff has further requested that any modification by this Court should apply

3


On August 26, 2014, Plaintiff, Billy J. Schleiger (“Plaintiff”), filed an
application for Social Security disability benefits. Both his Title Il application and
Title XVI application alleged disability since June 1, 2012. Plaintiff contends that his
disability is the result of severe injuries sustained in a motor vehicle accident that
occurred in October 2008. As a result of this accident, he sustained fractures to his
right leg, including his femur, as well as injuries to his left ankle. Surgery included
implanting metal plates in his left ankle and metal rods and plates in his right leg.
Following six months in a wheelchair, Plaintiff returned to work as a self- employed
truck driver, however, by 2012, he determined that he was unable to continue
employment. Doc. #6-2 PAGEID#72. As of the June 1, 2012, the onset date, Plaintiff
was under the age of fifty, a “younger person” for Social Security purposes. 20
C.F.R. § 404.1563(c).

Following the denial of Plaintiff's applications, a hearing before the
administrative law judge (“ALJ”) was requested. On November 4, 2014, the ALJ
denied Plaintiff's disability benefits, Doc. #6-2, PAGEID##40-53. His request for
review to the Appeals Council was also denied. Plaintiff filed suit pursuant to 42
U.S.C. § 405(g) in order to review the decision of Defendant, Nancy A. Berryhill,
Acting Commissioner of the Social Security Administration (“Commissioner”),
denying him disability benefits.

On April 30, 2019, Magistrate Judge Sharon L. Ovington filed a Report and

Recommendations, Doc. #13, recommending that the non-disability finding be

2