McKenzie v. Commissioner of Social Security

Filing 17

DECISION AND ENTRY: (1) AFFIRMING THE ALJS NON-DISABILITY FINDING AS SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) TERMINATING THIS CASE ON THE DOCKET- Having carefully reviewed the administrative record and the parties briefs, and also having carefully considered the ALJs analysis leading to the non-disability finding here at issue, the Court finds the ALJ carefully and reasonably developed and reviewed the record; appropriately considered the medical evidence at issue; properly weighed opinion ev idence based upon reasons supported by substantial evidence; reasonably assessed Plaintiffs credibility; accurately determined Plaintiffs RFC; and appropriately determined that Plaintiff can perform a significant number of jobs in the national economy. Accordingly, the Court AFFIRMS the ALJs non-disability finding as supported by substantial evidence and TERMINATES this case on the Courts docket.IT IS SO ORDERED. Signed by Magistrate Judge Michael J. Newman on 8/24/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GARY L. MCKENZIE,
Plaintiff,

Case No. 3:16-cv-348

vs.
COMMISSIONER OF SOCIAL SECURITY,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.
______________________________________________________________________________
DECISION AND ENTRY: (1) AFFIRMING THE ALJ’S NON-DISABILITY FINDING
AS SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) TERMINATING THIS
CASE ON THE DOCKET
______________________________________________________________________________
This Social Security disability benefits appeal is before the undersigned for disposition
based upon the parties’ full consent. Doc. 8. At issue is whether the Administrative Law Judge
(“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance
Benefits (“DIB”). This case is before the Court on Plaintiff’s Statement of Errors (doc. 14), the
Commissioner’s memorandum in opposition (doc. 16), the administrative record (doc. 7),1 and
the record as a whole.
I.
A.

Procedural History

Plaintiff filed for DIB alleging a disability onset date of May 1, 2012. PageID 217-18.
Plaintiff claims disability as a result of a number of alleged impairments including, inter alia,
diabetes mellitus with neuropathy, obesity, right shoulder tendinitis, pancreatitis, anemia, right
carpal tunnel syndrome, depression and anxiety. PageID 59.
1

Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.

After an initial denial of his application, Plaintiff received a hearing before ALJ Mark
Hockensmith on August 25, 2015. PageID 80-117. The ALJ issued a written decision on
October 13, 2015 finding Plaintiff not disabled. PageID 57-72. Specifically, the ALJ found at
Step Five that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced
range of light work,2 “there were jobs in that existed in significant numbers in the national
economy that [Plaintiff] could have performed[.]” PageID 62-72.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 33-36. See
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then
filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 59-72),
Plaintiff’s Statement of Errors (doc. 14) and the Commissioner’s memorandum in opposition
(doc. 16). The undersigned incorporates all of the foregoing and sets forth the facts relevant to
this appeal herein.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most
of the time with some pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who
can perform light work is presumed also able to perform sedentary work. Id. Sedentary work “involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
2

46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In his Statement of Errors, Plaintiff asserts a single assignment of error alleging that the
ALJ erred in assessing his credibility. Doc. 14 at PageID 1332. In so arguing, Plaintiff contends
that the ALJ inappropriately relied on the fact that, although Plaintiff believed he suffered from
bone marrow cancer, he was never diagnosed with such a condition. Id.
Notably, the lack of a bone marrow cancer diagnosis is only one of many reasons set
forth by the ALJ in finding Plaintiff’s allegations of disabling symptoms not credible. See
PageID 64-68. The most significant reason relied upon by the ALJ, in finding Plaintiff’s
allegations not entirely credible, was his conclusion that Plaintiff’s allegations were unsupported
by the medical evidence of record -- a basis Plaintiff does not challenge on appeal. See id.

There being other substantial evidence upon which the ALJ reasonably based his credibility
finding, the Court finds no merit to Plaintiff’s lone alleged error. See Johnson v. Comm’r of Soc.
Sec., 535 F. App’x.498, 507 (6th Cir. 2013) (holding that credibility determinations based on
partially invalid reasons amounts to harmless error so long as substantial evidence remains to
support the determination).
Having carefully reviewed the administrative record and the parties’ briefs, and also
having carefully considered the ALJ’s analysis leading to the non-disability finding here at issue,
the Court finds the ALJ carefully and reasonably developed and reviewed the record;
appropriately considered the medical evidence at issue; properly weighed opinion evidence
based upon reasons supported by substantial evidence; reasonably assessed Plaintiff’s credibility;
accurately determined Plaintiff’s RFC; and appropriately determined that Plaintiff can perform a
significant number of jobs in the national economy.
Accordingly, the Court AFFIRMS the ALJ’s non-disability finding as supported by
substantial evidence and TERMINATES this case on the Court’s docket.
IT IS SO ORDERED.

Date:

August 24, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge