United States District Court, S.D. Indiana, Indianapolis Division
RUSSELL R. DEAN, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EVANS BARKER, United States District Judge.
an action for judicial review of the final decision of
Defendant Commissioner of Social Security
(“Commissioner”) finding Plaintiff Russell R.
Dean not entitled to Disability Insurance Benefits
(“DIB”) Supplemental Security Income
(“SSI”). The Administrative Law Judge
(“ALJ”) denied Mr. Dean's application for DIB
and SSI after concluding that Mr. Dean's residual
functional capacity (“RFC”) would allow him to
perform past relevant work as a cashier or security guard.
This case was referred to Magistrate Judge Dinsmore for
initial consideration. On November 9, 2017, Magistrate Judge
Dinsmore issued a report and recommendation suggesting that
the Commissioner's decision be upheld because it was
supported by substantial evidence and was otherwise in accord
with law. This cause is now before the Court on
Plaintiff's Objections to the Magistrate Judge's
Report and Recommendation.
review the Commissioner's denial of benefits to determine
whether it was supported by substantial evidence or the
result of an error of law. Rice v. Barnhart, 384
F.3d 363, 368-369 (7th Cir. 2004); Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
“Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). In our review of the ALJ's
decision, we will not “reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute
[our] own judgment for that of the Commissioner.”
Lopez, 336 F.3d at 539. However, the ALJ's
decision must be based upon consideration of “all the
relevant evidence, ” without ignoring probative
factors. Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). In other words, the ALJ must “build an
accurate and logical bridge” from the evidence in the
record to his or her final conclusion. Dixon, 270
F.3d at 1176. We confine the scope of our review to the
rationale offered by the ALJ. See SEC v. Chenery
Corp., 318 U.S. 80, 93-95 (1943); Tumminaro v.
Astrue, 671 F.3d 629, 632 (7th Cir. 2011).
party raises specific objections to elements of a magistrate
judge's report and recommendation, the district court
reviews those elements de novo, determining for
itself whether the Commissioner's decision as to those
issues is supported by substantial evidence or the result of
an error of law. Fed. R. Civ. Pro. 72(b). The district court
“makes the ultimate decision to adopt, reject, or
modify” the report and recommendation, and it need not
accept any portion as binding; the court may, however, defer
to those conclusions of the report and recommendation to
which timely objections have not been raised by a party.
See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 759-761 (7th Cir. 2009).
Dean objects to the Magistrate Judge's Report and
Recommendation on a single basis, to wit, that the Magistrate
Judge failed to consider his contention that the ALJ
committed reversible error in failing to explain why he did
not adopt Dr. Francis's opined overhead reaching and
lifting restriction. [Dkt. 17.] As the sole challenge to the
Report and Recommendation, we address only this argument,
deferring to all other conclusions set forth in the
Magistrate Judge's Report and Recommendation.
Dean contends, and the Commissioner concedes, that the ALJ
erred by failing to explain why he did not accept Dr.
Francis's overhead reaching and lifting restriction in
determining Mr. Dean's RFC. Dr. Francis opined that Mr.
Dean was unable to reach overhead. The ALJ found, instead,
that Mr. Dean could perform occasional overhead reaching.
[Dkt. 9-2 at 31.] Mr. Dean contends that the ALJ's
failure to explain why he did not include Dr. Francis's
overhead reaching and lifting restriction in Mr. Dean's
RFC, despite giving the physician's opinion “great
weight, ” was reversible error because Mr. Dean's
past relevant work, which the ALJ determined he could
perform, requires overhead reaching. Accordingly, had the ALJ
included Dr. Francis's overhead reaching restriction
within Mr. Dean's RFC, Mr. Dean would have been deemed
unable to complete his past relevant work, and the ALJ's
analysis would have moved to step five, requiring a
determination of whether Mr. Dean could perform any relevant
work within the national economy.
Commissioner, however, argues that the ALJ's failure to
explain the reason(s) he rejected Dr. Francis's opinion
as to the overhead reaching restriction is harmless error.
Under the doctrine of harmless error, the Court will not
remand the case to the ALJ if it is convinced that the ALJ
would reach the same result on remand. McKinzey v.
Astrue, 641 F.3d 884, 892 (7th Cir. 2011). Harmless
error analysis is not “an exercise in rationalizing the
ALJ's decision and substituting our own hypothetical
explanations for the ALJ's inadequate
articulation.” Id. Because we agree with the
parties here that the ALJ erred in failing to explain his
reasoning, “[t]he question before us is now
prospective-can we say with great confidence what the ALJ
would do on remand . . . .” Id. An error is
not harmless if the ALJ might reach the same
conclusion after carefully considering the entire record,
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010);
it is only harmless if a reasonable ALJ would reach
the same conclusion on remand.
parties disagree as to which part of the ALJ's analysis
the harmless error doctrine applies. The Commissioner
contends that the relevant question is whether a reasonable
ALJ considering the entire record would reach the same
conclusion on remand as to whether to include Dr.
Francis's overhead reaching and lifting restriction as
part of Mr. Dean's RFC. [Dkt. 14 at 5-7.] Mr. Dean, on
the other hand, argues that the relevant question is whether
a reasonable ALJ considering the entire record would reach
the same conclusion on remand as to whether Mr. Dean could
perform his past relevant work if he were to be limited to no
overhead reaching as Dr. Francis opined. [Dkt. 17.] We agree
with the Commissioner's position on this issue. See
McKinzey, 641 F.3d at 892 (holding that an ALJ's
failure to explain the weight she gave to a physician's
opinion was harmless error because no reasonable ALJ would
reach a contrary decision on remand regarding the
careful review of the evidentiary record, we hold that the
ALJ's error in failing to “build an accurate and
logical bridge from the evidence to his conclusion, ”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000), when rejecting Dr. Francis's overhead reaching and
lifting restriction was harmless because the evidence in the
record supports the conclusion that, on remand, no reasonable
ALJ would reach a contrary decision regarding Mr. Dean's
evidentiary record supports the ALJ's RFC determination.
In his opinion, the ALJ discussed Mr. Dean's past partial
rotator cuff tear, indicating that he had received surgery as
treatment. [Dkt. 9-2 at 29; Dkt. 9-12 at 114.] There is
sufficient evidence in the record supporting the conclusion
that Mr. Dean's shoulder injury post-surgery did not
fully restrict his overhead reaching capacity. Immediately
post-surgery, Mr. Dean was given a fifty-pound weight
restriction and a three-month lifting restriction, but those
limitations were temporary and have since expired. [Dkt. 9-2
at 33; Dkt. 9-13 at 827.] Similarly, although three months
post-surgery Mr. Dean was “not progressing how he
should be” [Dkt. 9-12 at 805], by six months
post-surgery he was “doing well with minimal
pain” and his range of motion was “much better
than before surgery.” [Dkt. 9-9 at 509]. The ALJ's
conclusion that Mr. Dean's partial rotator tear appeared
to be appropriately treated by surgery [Dkt. 9-2 at 29], is
therefore supported by the evidentiary record.
also considered evidence from treating physicians and
examining physicians regarding range of motion in Mr.
Dean's neck and shoulders, none of whom opined that Mr.
Dean's limitations included no overhead reaching or
lifting. Treating physicians noted that, although during some
examinations Mr. Dean had mild to moderate limitation of
motion in his neck and upper extremities [Dkt. 9-2 at 30;
Dkt. 9-11 at 691; Dkt. 9-9 at 511-12; Dkt. 9-13 at 903], at
other times he had a full range of motion. [Dkt. 9-2 at 30;
Dkt. 9-9 at 495; 501.] For example, Dr. Wang examined Mr.
Dean's range of motion on November 19, 2012, one month
after Mr. Dean's application was filed, and found a
normal range of motion in both shoulders. [Dkt. 9-2 at 31;
Dkt. 9-10 at 640, 645.] Dr. Wang did find mild tenderness in
Mr. Dean's right shoulder [Dkt 9-2 at 31; Dkt. 9-10 at
640], but concluded only that Mr. Dean was unable to perform
frequent overhead reaching, [Dkt. 9-10 at 642], not
that he was unable to perform any overhead reaching or
lifting at all. Consistent with Dr. Wang's assessment,
the state agency medical consultants found that Mr. Dean
could perform limited overhead reaching. [Dkt. 9-2 at 32;
Dkt. 9-3 at 82, 94.] The ALJ also noted that x-rays done in
2013 on Mr. Dean's cervical spine did not show any
significant increase in abnormalities. [Dkt. 9-2 at 30; Dkt.
9-12 at 722.]
report, Dr. Francis opined that Mr. Dean's maximum RFC
based on degenerative disc disease, lumbar disc disease,
bilateral shoulder impairments, and obstructive sleep apnea
would be medium work. [Dkt. 9-2 at 47.] Dr. Francis limited
the medium work by stating “[u]pper extremity use would
probably be limited to no overhead use of either
shoulder.” [Id.] Dr. Francis also opined that
the RFC could be reduced to light work, if required by the
evidence. [Id.] Although the ALJ gave Dr.
Francis's opinion “great weight, ” he found
that Dr. Francis “may not have fully considered the
claimant's subjective complaints to the extent they are
at least reasonable [sic] consistent with the
objective medical evidence, ...