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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

CARL E. BERRY III, Case No. 1:18-cv-207 

Plaintiff, Black, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 Plaintiff Carl E. Berry III filed this Social Security appeal in order to challenge the 

Defendant’s findings that he is not disabled. See 42 U.S.C. §405(g). Proceeding 

through counsel, Plaintiff presents two claims of error, both of which the Defendant 

disputes. For the reasons explained below, I conclude that the ALJ’s finding of nondisability should be REVERSED and REMANDED for an immediate award of benefits 

because it is not supported by substantial evidence in the administrative record. 

I. Summary of Administrative Record 

 In October 2013, Plaintiff filed for Supplemental Security Income alleging a 

disability onset date of July 17, 1994, when he was 13 years old. (Tr. 12). After 

Plaintiff’s claims were denied initially and upon reconsideration, he requested a hearing 

de novo before an Administrative Law Judge (“ALJ”). On June 16, 2016, ALJ Kevin 

Detherage held a hearing at which Plaintiff appeared with a non-attorney representative. 

The ALJ heard testimony from Plaintiff and an impartial vocational expert. Id. In 

December 2016, the ALJ determined that Plaintiff was not under a disability as defined 

by the Social Security Act. (Tr. 12-19). The Appeals Council denied Plaintiff’s request 
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for review in January 2018. (Tr. 1). Plaintiff filed an appeal to this Court on March 26, 

2018, seeking judicial review of the denial of his application for benefits. 

 Plaintiff was 32-years-old on the date his application was filed (Tr. 18). He is 

married and holds a high school diploma. (Tr. 18). Plaintiff has stated that he can 

perform some exercises and household chores, can prepare meals, can drive for short 

periods, and can go grocery shopping. (Tr. 16). Plaintiff has no past relevant work. (Tr. 

18). 

 Based upon the record and testimony presented at the hearing, the ALJ found 

that Plaintiff had the following severe impairments: “cardiomyopathy, dyspnea, sickle 

cell anemia, remote history of a gunshot wound, and syncope.” (Tr. 14). (Tr. 16). The 

ALJ concluded that none of Plaintiff’s impairments alone or in combination met or 

medically equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1 (Tr. 

14). The ALJ determined that Plaintiff retains the following residual functional capacity 

(“RFC”) to perform unskilled, sedentary work with the following limitations: 

[T]he claimant can never climb ladders, ropes, or scaffolds, and can 

occasionally climb ramps or stairs. He should avoid exposure to hazards, 

such as heights or machinery with moving parts. He should avoid 

concentrated exposure to dusts, fumes, gases, odors, or poorly ventilated 

areas. The claimant cannot perform commercial driving. In addition, 

[claimant] is likely to be absent from work 1 day per month. 

(Tr. 15). Plaintiff has no past relevant work, so the ALJ could not make a determination 

of transferability of job skills. (Tr. 18). Based upon the record as a whole including 

testimony from the vocational expert, and given Plaintiff’s age, education, work 

experience, and RFC, the ALJ concluded that there are jobs that exist in significant 

numbers in the national economy that he can perform, including such jobs as 
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assembler, packer, and inspector. Accordingly, the ALJ determined that Plaintiff is not 

under disability, as defined in the Social Security Regulations, and is not entitled to DIB. 

Id. 

 The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s 

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff 

argues that the ALJ erred by: 1) weighing the opinion evidence of record incorrectly; 2) 

determining an RFC for sedentary work based on outdated or incomplete records. 

Upon close analysis, I find Plaintiff’s first assignment of error to be dispositive and 

herein recommend remanding this matter for an immediate award of benefits. 

 II. Analysis 

 A. Judicial Standard of Review 

 To be eligible for SSI or DIB a claimant must be under a “disability” within the 

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The 

definition of the term “disability” is essentially the same for both DIB and SSI. See 

Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory 

meaning, a “disability” includes only physical or mental impairments that are both 

“medically determinable” and severe enough to prevent the applicant from (1) 

performing his or her past job and (2) engaging in “substantial gainful activity” that is 

available in the regional or national economies. See Bowen, 476 U.S. at 469-70 (1986). 

 When a court is asked to review the Commissioner’s denial of benefits, the 

court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported 

by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” 
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Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal 

quotation omitted). In conducting this review, the court should consider the record as a 

whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence 

supports the ALJ’s denial of benefits, then that finding must be affirmed, even if 

substantial evidence also exists in the record to support a finding of disability. Felisky v. 

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained: 

The Secretary’s findings are not subject to reversal merely because 

substantial evidence exists in the record to support a different conclusion . 

. . . The substantial evidence standard presupposes that there is a ‘zone 

of choice’ within which the Secretary may proceed without interference 

from the courts. If the Secretary’s decision is supported by substantial 

evidence, a reviewing court must affirm. 

Id. (citations omitted). 

 In considering an application for disability benefits, the Social Security Agency is 

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if 

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner 

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the 

Commissioner analyzes whether the claimant’s impairments, singly or in combination, 

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner 

determines whether or not the claimant can still perform his or her past relevant work; 

and finally, at Step 5, if it is established that claimant can no longer perform his or her 

past relevant work, the burden of proof shifts to the agency to determine whether a 

significant number of other jobs which the claimant can perform exist in the national 

economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 

2006); 20 C.F.R. §§404.1520, 416.920. 
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 A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she 

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking 

benefits must present sufficient evidence to show that, during the relevant time period, 

he or she suffered impairment, or combination of impairments, expected to last at least 

twelve months, that left him or her unable to perform any job in the national economy. 

42 U.S.C. § 423(d)(1)(A). 

 B. The ALJ’s Decision is not supported by Substantial Evidence 

1. Relevant Medical Evidence 

 Plaintiff has a long history of restrictive cardiomyopathy dating back to at least 

2010, where he received treatment at the heart failure clinic at Children’s Hospital 

Medical Center with Dr. John Jefferies. (Tr. 295). In December 2012, Plaintiff presented 

to Dr. Jeffries due to episodes of syncope not related to activity, chest pains, and 

shortness of breath. Id. An echocardiogram was performed and revealed right and left 

atrial enlargement, and increase in the left atrial volume from the prior study, mild to 

moderate left atrial dilation, inferior vena cava dilation, mitral valve regurgitation, 

tricuspid regurgitation, and an ejection fraction of 50-55%. (Tr. 296). 

On August 6, 2013, Plaintiff presented to the emergency room at University 

Hospital where he was having a syncopal episode, likely related to his cardiac 

arrhythmia (Tr. 252). An echocardiogram was performed which measured Plaintiff’s 

ejection fraction as 60-65%. (Tr. 271). Plaintiff was instructed to carefully monitor 

symptoms and obtain a cardiac MRI to further evaluate need for implantable 

cardioverter defibrillator (ICD) placement. (Tr. 254). 
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 On November 4, 2013, Plaintiff was admitted to Children’s Hospital for ICD 

placement surgery. (Tr. 460). The procedure went well without complication and 

Plaintiff was discharged on November 5, 2013 with medication, wound care instructions, 

and instructed to avoid strenuous activity and return for a follow-up in one month. (Tr. 

460-462). 

 Plaintiff returned to Dr. Czosek, his surgeon, for a post implant follow-up on 

December 3, 2013. (Tr. 527). Plaintiff appeared to be tolerating the implant well and 

was instructed to continue medications as prescribed, report device transmissions every 

three months, follow-up for formal ICD interrogation’s every 12 months and return to Dr. 

Jeffries as scheduled. Id.

 Plaintiff retuned to Dr. Jeffries on February 26, 2014 for evaluation of his cough. 

(Tr. 602). Dr. Jeffries stated that the cough was likely related to viral illness but that a 

new systolic murmur was present. (Tr. 607). Readings from the Plaintiff’s ICD confirmed 

intermittent atrial tachycardia and Dr. Jeffries ordered additional testing and lab work to 

evaluate. Id. Labs and x-rays performed on March 9, 2014, as ordered by Dr. Jeffries, 

revealed B Nantriuretic Peptide levels of 330, with the normal level being under 100 for 

patients without heart failure. (Tr. 632). 

 An ICD Check on January 20, 2015 showed two episodes of ventricular 

tachycardia (“VT”). (Tr. 898). An ICD check on May 6, 2015 revealed eight episodes of 

VT. (Tr. 926). An overview of incidents showed approximately thirty episodes of 

arrhythmia from April 2014 to April 2015. (Tr. 936). 

 An ICD check performed on August 6, 2015 revealed six episodes of VT since 

the last check. (Tr. 948). An ICD check on November 6, 2015 revealed fifteen sustained 
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episodes of VT and twenty-five supraventricular tachycardia (“SVT”) wavelet episodes 

all from October 8, 2015. (Tr. 975). 

 On December 7, 2015 Plaintiff returned to Dr. Jeffries for a follow-up 

appointment. (Tr. 866). Plaintiff reported no change in symptoms, but due to carelink 

readings Dr. Jeffries recommended the addition of a beta blocker and additional close 

follow-up. (Tr. 869). Dr. Jeffries instructed Plaintiff to return in 6 months with new 

imaging, continue medications and start beta blockers, and restrict activity. Id. 

 An ICD check on February 8, 2016 revealed one episode of VT since the last 

check. (Tr. 1114). On May 23, 2016, Plaintiff presented to his appointment with Dr. 

Jeffries in a state of atrial flutter. (Tr. 1068). Dr. Jeffries recommended cardioversion, 

but Plaintiff decided to wait to see if issue resolved itself. (Tr. 1069). If flutter was still 

present on May 25, 2016 at Plaintiff’s ICD check he would be admitted for 

cardioversion. Id. 

 On May 25, 2016, Plaintiff was admitted to Children’s Hospital for a cardioversion 

procedure to treat his persistent atrial flutter. (Tr. 1127). However, during his hospital 

stay, he had spontaneous conversion to sinus rhythm, so the cardioversion procedure 

was canceled. (Tr. 1130-1131). Plaintiff presented to the ER again on June 14, 2016 

complaining of palpitations and ICD shock. (Tr. 1164). It was determined that Plaintiff 

was in atrial fibrillation with rapid ventricular rate. (Tr. 1168). The ER staff recommended 

admission, but Plaintiff opted for increased medication doses and to follow-up with Dr. 

Jeffries. Id. 
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 2. Evaluation of the Opinion Evidence

 Plaintiff argues that the ALJ erred by failing to give controlling weight to the 

opinion of his treating physician, Dr. Jefferies. The undersigned agrees. 

 In evaluating the opinion evidence, the ALJ must consider the factors set forth in 

20 C.F.R. § 404.1527(d)(2). These factors include: “(1) the length of the treatment 

relationship and the frequency of the examination; (2) the nature and extent of the 

treatment relationship; (3) the supportability of the opinion, with respect to relevant 

evidence such as medical signs and laboratory findings; (4) the consistency of the 

opinion with the record as a whole; (5) the specialization of the physician rendering the 

opinion; and (6) any other factor raised by the applicant.” Meece v. Barnhart, 192 Fed. 

Appx. 456, 461 (6th Cir. 2006) (citing 20 C.F.R. §§ 404.1527(d)(2)-(d)(6)). 

 It is well established that the “[t]he ALJ ‘must’ give a treating source opinion 

controlling weight if the treating source opinion is ‘well-supported by medically 

acceptable clinical and laboratory diagnostic techniques’ and is ‘not inconsistent with 

the other substantial evidence in [the] case record.” Blakley v. Commissioner of Social 

Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Wilson v. Commissioner, 378 F.3d 541, 

544 (6th Cir. 2004)). A finding by the ALJ that a treating physician's opinion is not 

consistent with the other substantial evidence in the case record “means only that the 

opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.” 

Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *4 (emphasis added).” “Treating source 

medical opinions are still entitled to deference and must be weighed using all of the 

factors provided in 20 C.F.R. § 404.1527 and 416.927.” Blakley, 581 F.3d at 408. These 

factors include the length, nature and extent of the treatment relationship and the 
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frequency of examination. 20 C.F.R. § 404.1527(d)(2)(i)(ii); 416.927(d)(2)(i)(ii); Wilson, 

378 F.3d at 544. In addition, the ALJ must consider the medical specialty of the source, 

how well-supported by evidence the opinion is, how consistent the opinion is with the 

record as a whole, and other factors which tend to support or contradict the opinion. 20 

C.F.R. §§ 404.1527(d)(3)-(6), 416.927(d)(3)-(6); Wilson v. Commissioner, 378 F.3d 541, 

544 (6th Cir. 2004). Thus, the treating physician rule “requires the ALJ to generally give 

greater deference to the opinions of treating physicians than to the opinions of nontreating physicians.” See Blakley v. Com'f Social Security, 581 F.3d 399, 406 (6th Cir. 

2009). 

 Here, in formulating Plaintiff’s RFC, the ALJ gave great weight to the findings of 

the state agency physicians. Notably, Dr. Bolz reviewed the Plaintiff’s medical file and 

opined that Plaintiff could perform a limited range of sedentary work. Dr. Bolz opinion 

was affirmed on reconsideration by Dr. Leon Hughes. Upon review of the record, Dr. 

Hughes noted that Plaintiff was recovering well after a defibrillator implant. The ALJ 

determined that these opinions were consistent with the medical record that supports 

that Plaintiff’s cardiac symptoms have been stabilized and treated, and that he can 

perform some activities of daily living. (Tr. 17). The ALJ gave little weight to the opinion 

of Dr. Jefferies, Plaintiff’s treating cardiologist. Id. 

 Dr. Jefferies completed a cardiac RFC on January 7, 2015. He listed Plaintiff’s 

diagnosis as a Class III1 on the New York Heart Association’s functional classification 

chart. (Tr. 663). He records symptoms of heart palpitation, dizziness, and syncope 

                                                            

1 According to the American Heart Association, class III heart failure is defined as a marked limitation of 

physical activity. Comfortable at rest. Less than ordinary activity causes fatigue, palpitation, or dyspnea. 

http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-ofHeartFailure_UCM_306328_Article.jsp#.W1dOHtVKiUk 
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which are evidences in both office visit records, hospital records, and monitoring of his 

ICD. Id. 

 Dr. Jefferies opined that Plaintiff’s cardiac symptoms would often interfere with 

Plaintiff’s attention and concentration. Dr. Jefferies determined that Plaintiff could 

handle low stress jobs and could sit and stand for more than two hours at a time, 

however, he would need to shift positions at will, would need unscheduled breaks of 

indefinite length, and would on average miss more than four days of work per month. 

(Tr. 664, 666, 668). The ALJ’s gave Dr. Jefferies’ opinion “little weight” because it is “not 

supported by the record.” The ALJ asserted that Plaintiff’s cardiac symptoms have 

stabilized and there is no support that claimant would need to miss work more than four 

days per month. (Tr. 17).2

 Plaintiff argues that the ALJ’s rationale relating to Dr. Jefferies findings is not 

supported by the record. Notably, although the ALJ found that Plaintiff’s cardiac 

symptoms had stabilized, Plaintiff argues that the medical evidence of record shows 

that he was admitted to the hospital due to persistent atrial flutter less than a month 

before the administrative hearing (Tr. 1130-1131) and was treated in the ER two days 

prior to the hearing after his ICD fired. (Tr. 1161). Prior to his hospitalization in May 

2016, his ICD check showed seventy-one VT episodes. (Tr. 1204). In fact, ICD checks 

following the implantation of the device showed repeated episodes of VT and SVT. (Tr. 

719, 754, 778; 897, 925, 936, 947, 974; 1088, 1113). Dr. Jefferies noted that Plaintiff 

                                                            

2 The ALJ also assigned “some weight” to the findings of Dr. Fritzhand, the consultative examiner. Dr. 

Fritzhand opined that Plaintiff may be incapable of performing even a mild amount of sitting, ambulating, 

standing, bending, pushing, pulling, lifting, and carrying heavy objects. The ALJ gave this opinion some 

deference, noting that “evidence that the claimant’s impairments are being treated and his ability to 

perform activities of daily living supports greater exertional limitations. (Tr. 17).   
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experienced cardiac symptoms often, which is supported by the findings on ICD 

monitoring. 

 Plaintiff further asserts that that the ALJ erred in rejecting Dr. Jefferies opinion, 

based at least in part on Plaintiff’s ability to perform “some” daily activities. The ALJ 

wrote that Plaintiff is “able to perform activities of daily living such as driving, shopping, 

and performing some household chores. The record does not support that the claimant 

would need to miss work more than four days per month.” (Tr. 17). However, it is well 

established that claimant’s ability to perform light household chores and attend to 

personal needs does not translate to an ability to perform substantial gainful activity. 

Rogers v. Comm’r of Social Security, 486 F.3d 234, 248 (6th Cir. 2007); Barker-Bair v. 

Comm’r of Soc. Sec., No. 1:06-cv-00696, 2008 U.S. Dist. LEXIS 27011, at * 11 (S.D. 

Ohio Apr. 3, 2008) (citing Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004)). 

The undersigned agrees that plaintiff's ability to engage in daily activities does not 

establish ipso facto that he is able to engage in gainful activity 40 hours per week. 

Bramel v. Comm'r of Soc. Sec., No. 1:13CV281, 2014 WL 4162543, at *9 (S.D. Ohio 

Aug. 20, 2014). 

 When the treating physician's opinion is not given controlling weight, the ALJ 

must provide “good reasons” for doing so. Id. Good reasons “must be supported by the 

evidence in the case record, and must be sufficiently 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.” Blakley, 581 F.3d at 406-407; see also Soc. 

Sec. Rul. 96–2p. An ALJ's failure to provide an adequate explanation for according less 

than controlling weight to a treating source may only be excused if the error is harmless 
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or de minimis, such as where “a treating source's opinion is so patently deficient that the 

Commissioner could not possibly credit it.” Blakley, 581 F.3d at 409 

(quoting Wilson, 378 F.3d at 547). 

 Here, the ALJ’s articulated reasons for rejecting Dr. Jefferies opinions do not 

constitute “good reasons” for rejecting all of his findings. As noted above, the ALJ’s 

determination that Plaintiff’s condition had stabilized was not supported by the record 

evidence. Moreover, the ALJ improperly determined that Plaintiff’s activities of daily 

living were incompatible with Dr. Jefferies very restrictive opinion. (Doc 14, p. 3). 

Notably, Dr. Jefferies found that Plaintiff could sit and stand/walk over 2 hours, however 

he would require an uncertain number of unscheduled breaks (Tr. 666) and would likely 

have good and bad days (Tr. 668). As detailed by Plaintiff, this is consistent with 

Plaintiff’s testimony at the hearing regarding his daily activities. Plaintiff testified that he 

needs to lay down when he feels the onset of symptoms, such as dizziness and 

lightheadedness (Tr. 42, 44). Likewise, in reports to the agency Plaintiff reported that he 

experienced shortness of breath and lightheadedness requiring him to take a break. (Tr. 

210). He also noted that he must sit or lay down until he has an even rhythm with his 

heart. (Tr. 200). The record further indicates that Plaintiff’s device repeatedly showed 

numerous episodes of VT and SVT. (Tr. 720, 755, 778, 898, 926, 936, 948, 975, 1114). 

Due to reports from the device monitoring, Dr. Jefferies instructed Plaintiff to restrict 

activities and add beta blockers. (Tr. 869). 

 Furthermore, it is clearly established law that the opinion of a non-treating “oneshot” consultative physician or of a medical advisor cannot constitute substantial 

evidence to overcome the properly supported opinion of a physician who has treated a 
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claimant over a period of years. See Lashley v. Secretary of Health and Human 

Services, 708 F.2d 1048, 1054 (6th Cir. 1983). At the time of the administrative 

hearing, Dr. Jefferies had been treating Plaintiff for three years and he is a cardiac 

specialist. Dr. Jefferies also had the opportunity to monitor Plaintiff’s ICD and cardiac 

symptoms during examinations. In contrast, the state agency physician, who the ALJ 

afforded deference, are not cardiologists and did not examine Plaintiff. Namely, Dr. 

Bolz’s specialty is identified as orthopedic, while Dr. Hughes is a family 

practitioner. See 20 C.F.R. § 404.1527(d)(5) (“[w]e generally give more weight to the 

opinion of a specialist about medical issues related to his or her area of specialty than to 

the opinion of a source who is not a specialist.”). Furthermore, the state agency 

physicians did not review the complete record. As noted by Plaintiff, following their 

review, Plaintiff had numerous ICD checks that reported repeated episodes of VT and 

SVT, had 3 additional echocardiograms and a hospitalization for persistent atrial flutter. 

 Additionally, it appears that the ALJ applied a more rigorous scrutiny to Dr. 

Jefferies opinions than to those of the nonexamining opinions. The Sixth Circuit has 

found that this is precisely the inverse of the analysis that the regulation 

requires. Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 379 (6th Cir. 2013), reh'g 

denied (May 2, 2013). See also 20 C.F.R. § 404.1527(c); Soc. Sec. Rul. No. 96–6p, 

1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996). As such, the ALJ's decision 

indicates that his assessment of the opinion evidence failed to abide by the 

Commissioner's regulations and therefore calls into question the ALJ's 

analysis. See Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (“An ALJ's failure to 
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follow agency rules and regulations denotes a lack of substantial evidence.” (internal 

quotation marks omitted)). 

 When, as here, the non-disability determination is not supported by substantial 

evidence, the Court must decide whether to reverse and remand the matter for 

rehearing or to reverse and order benefits granted. The Court has authority to affirm, 

modify or reverse the Commissioner's decision “with or without remanding the cause for 

rehearing.” 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100, 111 S.Ct. 

2157, 115 L.Ed.2d 78 (1991).

 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.” Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 

(6th Cir.1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir.1990); Varley v. 

Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir.1987). 

The Court may award benefits where the proof of disability is strong and opposing 

evidence is lacking in substance, so that remand would merely involve the presentation 

of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 

F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 

(6th Cir.1985). Such is the case here. 

 Here proof of disability is overwhelming and remand will serve no purpose other 

than delay. As fully explained above, in view of the extensive medical record of 

evidence of disability, hospitalizations, and the credible and controlling findings of Dr. 

Jefferies proof of disability is overwhelming. 
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 III. Conclusion and Recommendation

 For the reasons explained herein, IT IS RECOMMENDED THAT Defendant's 

decision be REVERSED AND REMANDED to the Commissioner of Social Security for 

an immediate award of benefits; and that this case be CLOSED in this Court. 

 

 s/Stephanie K. Bowman 

Stephanie K. Bowman 

 United States Magistrate Judge 

 
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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

CARL E. BERRY III, Case No. 1:18-cv-207 

Plaintiff, Black, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

NOTICE 

 Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas 

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).