Gentry v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE BE CLOSED Objections to R&R due by 1/23/2018. Signed by Magistrate Judge Michael J. Newman on 1/9/18. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DARLENE GENTRY,
Plaintiff,

Case No. 3:16-cv-495

vs.
COMMISISONER OF SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
AFFIRMED; AND (2) THIS CASE BE CLOSED
______________________________________________________________________________
This is a Social Security disability benefits appeal.

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 upon

Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc. 8),
the administrative record (doc. 5), and the record as a whole.
I.
A.

Procedural History

In September 2013, Plaintiff filed applications for SSI2 and DIB asserting disability as of
January 1, 2007 (later she amended her onset date to January 9, 2009. PageID 79). PageID 205,
212. Plaintiff claims disability as a result of multiple impairments including, inter alia, lumbar
sprain/strain, left rotator cuff sprain, and obesity. PageID 61.
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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
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Plaintiff was granted SSI benefits as of September 6, 2013. PageID 123. As a result, this
appeal is for DIB only for the closed period of January 9, 2009 (her alleged onset date) through
September 5, 2013 (the day prior to her disability previously determined by the ALJ). PageID 79.

After initial denial of her applications, Plaintiff received a hearing before ALJ Mark
Hockensmith on October 10, 2015. PageID 73-96. The ALJ issued a decision on November 4,
2015 finding Plaintiff not disabled. PageID 59-67. Specifically, the ALJ found at Step 4 that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of
medium work,3 she “was capable of performing past relevant work as a cleaner, housekeep[er]
and a cleaner of laboratory equipment.” PageID 62-67.
Thereafter, the Appeals Council denied review on October 12, 2016, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 41-44. 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 44-50),
Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc.
11), and Plaintiff’s reply (doc. 13). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this decision 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, 745-

“Medium work” involves the occasional lifting of 50 pounds at a time, and frequent lifting or
carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567. Medium work can require standing
and walking as much as six hours during any given eight-hour workday. Id. It may also involve frequent
stooping, grasping, holding, and turning objects. Id. “The functional capacity to perform medium work
includes the functional capacity to perform sedentary, light, and medium work.” 20 C.F.R. § Pt. 404, Sub
Pt. P, App. 2, § 203.00(a).
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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

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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?; and

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 her Statement of Errors, Plaintiff argues that the ALJ erred by (1) improperly weighing
opinion evidence and (2) mischaracterizing her shoulder impairment. Doc. 7 at PageID 493-97.
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 evidence at issue; properly weighed opinion evidence based upon reasons
supported by substantial evidence; reasonably assessed Plaintiff’s credibility; appropriately
accounted for Plaintiff’s shoulder impairment; and accurately determined Plaintiff’s RFC. As a
result, the ALJ’s non-disability finding should be affirmed.

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IV.
For the foregoing reasons, the Court finds Plaintiff’s assignments of error unmeritorious.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability
finding be found supported by substantial evidence, and AFFIRMED; and (2) this case be
CLOSED.

Date:

January 9, 2018

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

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based, in whole or in part, upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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