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 Leo W -

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

Copies to:

Counsel of record


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 (6"

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

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).

WHEREFORE, based upon the aforesaid, this Court adopts the Report and
Recommendations of the United States Magistrate Judge (Doc. #10) and overrules the Defendant’s
Objections thereto (Doc. #11). Judgment is to be entered in favor of the Plaintiff and against the
Defendant Commissioner, vacating and reversing the Commissioner’s finding of non-disability,
finding that Plaintiff is under a disability within the meaning of the Social Security Act, yet
remanding the captioned cause to the Defendant Commissioner, under Sentence Four of 42 U.S.C.
§ 405(g), for specific consideration of whether Plaintiff's sporadic engagement in drug or alcohol
abuse, as well as unsuccessful substance-abuse treatment, is a contributing factor material to this

Court’s determination of disability.


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

STEVEN ARY,
Plaintiff, : Case No. 3:18cv258
vs. : JUDGE WALTER H. RICE
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE (DOC. #10) IN THEIR ENTIRETY:
DEFENDANT’S OBJECTIONS TO SAID JUDICIAL FILING (DOC. #11)
OVERRULED; JUDGMENT TO BE ENTERED IN FAVOR OF THE PLAINTIFF
AND AGAINST THE DEFENDANT COMMISSIONER, VACATING AND
REVERSING THE COMMISSIONER’S DECISION THAT PLAINTIFF WAS NOT
DISABLED AND, THEREFORE, NOT ENTITLED TO BENEFITS UNDER THE
SOCIAL SECURITY ACT AND FINDING PLAINTIFF UNDER A DISABILITY,
YET REMANDING THE CAPTIONED CAUSE TO THE DEFENDANT
COMMISSIONER, NOT FOR AN IMMEDIATE AWARD OF BENEFITS, BUT
FOR FURTHER CONSIDERATION CONSISTENT WITH THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATIONS; TO WIT, WHETHER
PLAINTIFF’S SPORADIC ENGAGING IN DRUG OR ALCOHOL ABUSE,
TOGETHER WITH UNSUCCESSFUL SUBSTANCE-ABUSE TREATMENT, IS A
CONTRIBUTING FACTOR MATERIAL TO THIS COURT’S DETERMINATION
OF DISABILITY; 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 September 3, 2019, the United States Magistrate Judge filed a Report and Recommendations

(Doc. #10), recommending that the Commissioner’s non-disability decision of May 29, 2018, be


vacated and reversed, finding that the Plaintiff was under a disability, within the meaning of the
Social Security Act, yet, rather than remanding the captioned cause for an immediate award of
benefits, remanding same to the Social Security Administration, under Sentence Four of 42 U.S.C.
§ 405(g), for further consideration of whether Plaintiff's sporadic engagement in drug or alcohol
abuse, and unsuccessful substance-abuse treatment, is a contributing factor material to the
determination of disability.

Based upon reasoning and citations of authority set forth in the Magistrate Judge’s Report
and Recommendations (Doc. #10), as well as upon a thorough 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. #11) are overruled. Accordingly, the decision
of the Defendant Commissioner is vacated and reversed, and the captioned cause remanded, under
Sentence Four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the
Magistrate Judge’s Report and Recommendations and the Court’s decision herein.

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 (1 971), 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.