Pettit v. Commissioner of Social Security, No. 3:2008cv00257 - Document 14 (S.D. Ohio 2009)
Court Description: DECISION AND ENTRY REJECTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. 12 ) IN THEIR ENTIRETY; PLAINTIFF'S OBJECTIONS TO SAID JUDICIAL FILING (DOC. 13 ) SUSTAINED; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFF AND A GAINST 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 THE FOURTH SENTENCE OF 42 U.S.C. 405(g), FOR FURTHER ADMINISTRATIVE PROCEEDINGS CONSISTENT WITH THIS OPINION; TERMINATION ENTRY. Signed by Judge Walter H Rice on 9/22/2009. (sc1, )
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION KEVIN PETTIT, : Plaintiff, Case No. 3:08cv257 : vs. : JUDGE WALTER HERBERT RICE COMMISSIONER OF SOCIAL SECURITY, : Defendant. : DECISION AND ENTRY REJECTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #12) IN THEIR ENTIRETY; PLAINTIFF S OBJECTIONS TO SAID JUDICIAL FILING (DOC. #13) SUSTAINED; 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 THE FOURTH SENTENCE OF 42 U.S.C. § 405(g), FOR FURTHER ADMINISTRATIVE PROCEEDINGS CONSISTENT WITH THIS OPINION; 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 July 20, 2009, 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 affirmed. Based upon reasoning and citations of authority set forth in the Plaintiff s Statement of Errors (Doc. #9) and in Plaintiff s Objections to 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 Transcript (filed with Defendant s Answer at Doc. #7), and a thorough review of the applicable law, this Court rejects 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 Plaintiff s Objections to said judicial filing (Doc. #13) are sustained. Accordingly, the decision of the Defendant Commissioner that Plaintiff was not disabled and, therefore, not entitled to benefits under the Social Security Act, is reversed. 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 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, to determine whether the findings of the Secretary [now Commissioner] are supported by "substantial evidence." -2- 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 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, supra, 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. Foster v. Bowen, 853 F.2d 483, 486 (6th 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 (6th Cir. 1986), quoting NLRB v. Columbian Enameling and Stamping Company, supra. -3- 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 (6th Cir. 1978); Ellis, supra; Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536 (6th Cir. 1981); Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir. 1984); Garner v. Heckler, 745 F.2d 383 (6th 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 (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). In addition to the foregoing, in ruling as aforesaid, this Court makes the following, non-exclusive, observations: 1. The Administrative Law Judge erred in rejecting/discounting the treatment, diagnoses and opinions of Plaintiff s Treating Nurse Practitioner and the Treating Counselor, in favor of the opinions of Dr. Schulz, a consultive examiner for -4- the Ohio BDD and two psychologists who reviewed the record for that entity. While a Nurse Practitioner and Treating Counselor s opinions, no matter how favorable for the Plaintiff, may not constitute substantial evidence, the Administrative Law Judge is not free to disregard those well documented and supported opinions in favor of a consultive psychologist who saw the Plaintiff just once and two reviewing psychologists who saw the Plaintiff not at all. Not only are the opinions of the Nurse Practitioner and Treating Counselor supported by evidence in the Administrative Transcript, particularly the various hospitalizations and family/social history given by the Plaintiff s sister, the Nurse Practitioner, often a patient s only point of contact for mental health issues, based her opinions on a sufficient longitudinal record. 2. Remand for additional administrative proceedings, rather than a remand for the payment of benefits, is proper herein, given that the Defendant s decision of non-disability is not supported by substantial evidence and the Plaintiff s entitlement to benefits is not clear. Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 176 (6th Cir. 1994). 3. On remand, the Administrative Law Judge is directed to properly evaluate the medical source opinions, including the records of the Plaintiff s hospitalizations and the opinions of Treating Nurse Practitioner Van Ausdal and Treating Counselor/Therapist Simpson. In addition, the Administrative Law Judge is to take all steps necessary, including the obtaining of a psychological evaluation and -5- other evidence and/or testimony, sufficient to determine whether this Plaintiff s mental impairment (diagnosed at times as schizoaffective disorder (bipolar), psychotic disorder and personality disorder and bipolar II disorder) renders him disabled within the meaning of the Social Security Act, and, accordingly, entitled to benefits under that Act. WHEREFORE, based upon the aforesaid, this Court rejects the Report and Recommendations of the United States Magistrate Judge (Doc. #12) in their entirety, having concluded 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. Plaintiff s Objections to said judicial filing (Doc. #13) are sustained. Judgment will be ordered entered in favor of the Plaintiff and against the Defendant Commissioner, reversing the decision of the Defendant Commissioner 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 the Fourth Sentence of 42 U.S.C. § 405(g), for further administrative proceedings consistent with this opinion. -6- 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 22, 2009 /s/ Walter Herbert Rice WALTER HERBERT RICE, JUDGE UNITED STATES DISTRICT COURT Copies to: Gary M. Blumenthal, Esq. John J. Stark, Esq. Todd Duclos, Esq. -7-
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