2, While the Administrative Law Judge comments on the Plaintiff's history of
“recreational/designer drug use” and “polysubstance abuse” as well as regular and ongoing use of
marijuana (Administrative Transcript at 16, 18-19), treating source, Dr. Cynthia Africk, M.D.,
does not opine that Plaintiff's mental health issues were either caused or aggravated by such use.
This Court agrees with the Plaintiff that “no medical source appears to have treated Plaintiff for
substance abuse nor has any medical source indicated in any way that substance abuse was
significant to Plaintiff's impairments, his symptoms, his limitations or the opinions of Dr. Moore.”
(Doc. #12 at 3396-97).

3. Given that the evidence of disability is strong while contrary evidence is lacking,
insofar as the Defendant’s mental health issues are concerned, a remand for the payment of
benefits, rather than for further administrative proceedings, is appropriate. Faucher v. Secretary of

Health and Human Services, 17 F.3d 171, 176 (6" Cir. 1994).

WHEREFORE, based upon the aforesaid, this Court adopts the Report and
Recommendations of the United States Magistrate Judge (Doc. #12) in their entirety, and, in so
doing, vacates and reverses the Commissioner's decision that Plaintiff was not disabled and,
therefore, not entitled to benefits under the Social Security Act, and, in so doing, remands the
captioned cause to the Defendant Commissioner, pursuant to Sentence Four of 42 U.S.C. § 405(g),

for the immediate payment of benefits. Judgment is to be entered accordingly.

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.


Commissioner of Social Security 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 (6" 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 (6" Cir. 1981).

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

1. This Court agrees that the Administrative Law Judge’s treatment of the opinions of
Plaintiff's treating psychologist, Dr. James Moore, Psy.D. was error, sufficient to conclude that the
Administrative Law Judge’s opinion of non-disability was not supported by substantial evidence.
Moreover, this Court believes that Dr. Moore’s opinion that Plaintiff would likely miss work more
than three times per month is not “speculative at best;” rather, such an opinion finds support in the
medical records. In addition, this Court simply does not believe that such an opinion, as long as it
is supported by evidence in the medical records, is a veiled attempt on the part of Plaintiff's
treating source to opine, impermissibly, that his patient is unemployable. Rather, it is a statement
of fact, an opinion, well supported in the record by a treating physician, upon which the Defendant
Commissioner, through his Administrative Law Judge, can opine on the ultimate issue of whether
the Plaintiff is or is not employable, to wit: whether the Plaintiff/Claimant is disabled within the

meaning of the Social Security Act.


September 30, 2019 Chin RA \

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

Copies to:

Counsel of record


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

WESTERN DIVISION
STEVEN CLABAUGH, II,
Plaintiff, : Case No. 3:18cv140
vs. : JUDGE WALTER H. RICE

COMMISSIONER OF SOCIAL SECURITY, :

Defendant.

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE (DOC. #12) IN THEIR ENTIRETY;
DEFENDANT’S OBJECTIONS TO SAID JUDICIAL FILING (DOC. #13)
OVERRULED; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFF AND
AGAINST DEFENDANT COMMISSIONER, REVERSING 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 IMMEDIATE PAYMENT OF BENEFITS; TERMINATION ENTRY

Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) to review a decision of the
Defendant Commissioner denying Plaintiff's application for Social Security disability benefits.
On August 13, 2019, the United States Magistrate Judge filed a Report and Recommendations
(Doc. #12), recommending that the Commissioner’s decision that Plaintiff was not disabled and,
therefore, not entitled to benefits under the Social Security Act be vacated and reversed, and that
the captioned cause be remanded to the Defendant Commissioner, pursuant to Sentence Four of

42 U.S.C. § 405(g), for the immediate payment of benefits. Based upon reasoning and citations of


authority set forth in the Magistrate Judge’s Report and Recommendations (Doc. #12), and in the
Plaintiff's Response to Defendant’s Objections (Doc. #14), as well as upon a thorough de novo
review of this Court’s file, including the Administrative Transcript (Doc. #6), and a thorough
review of the applicable law, this Court adopts the aforesaid Report and Recommendations in their
entirety and, in so doing, orders the entry of judgment in favor of the Plaintiff and against the
Defendant Commissioner, concluding that the Commissioner’s decision that Plaintiff was not
disabled and, therefore, not entitled to benefits under the Social Security Act, was not supported
by substantial evidence. The Defendant’s Objections to said judicial filing (Doc. #13) are
overruled. Accordingly, the decision of the Defendant Commissioner that Plaintiff was not
disabled and, therefore, not entitled to benefits under the Social Security Act, is vacated and
reversed and the captioned cause is remanded to the Defendant Commissioner, pursuant to
Sentence Four of 42 U.S.C. § 405(g), for the immediate payment of benefits.

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
of the Secretary [now Commissioner] are supported by “substantial evidence.” Lashley v.

Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6"" Cir. 1983); Gibson v. Secretary

of Health, Education and Welfare, 678 F.2d 653, 654 (6'" Cir. 1982). 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.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), citing

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938);

Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6" Cir. 1986).

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion. Richardson, supra, at 401. Ellis v. Schweicker, 739 F.2d 245, 248 (6" Cir.

1984). Substantial evidence is more than a 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. Foster v. Bowen, 853 F.2d 483, 486 (6"" Cir. 1988); NLRB v.

Columbian Enameling and Stamping Company, 306 U.S. 292, 300 (1939). 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. Secretary of Health

and Human Services, 802 F.2d 839, 840 (6"" Cir. 1986), quoting NLRB v. Columbian Enameling

and Stamping Company, supra.

In determining whether the Commissioner’s findings are supported by substantial
evidence, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359 (Cu

Cir. 1978); Ellis, supra; Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536 (6"

Cir. 1984); Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6"" Cir. 1984);

Garner v. Heckler, 745 F.2d 383 (6" Cir. 1984). However, the Court may not try the case de novo.

resolve conflicts in evidence or decide questions of credibility. Garner, supra. The findings of the