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Kerns v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

April 11, 2017

Jeffrey D. Kerns, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          James L. Graham, United States District Judge

         Plaintiff Jeffrey D. Kerns brings this action under 42 U.S.C. §405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits. Plaintiff claimed to be disabled as a result of an injury to his right knee sustained on the job while employed as a police officer. The record indicates that plaintiff has had two knee surgeries, and that the initial injury was aggravated by later falls. The administrative law judge (“ALJ”) reviewed the medical evidence in the record and held a hearing, at which plaintiff, accompanied by counsel, and a vocational expert testified. In a decision dated May 14, 2014, the ALJ found that plaintiff had severe impairments consisting of osteoarthritis of the right knee, sprains and strain of the right knee, leg, hip and thigh, status post knee surgery times two, and complex regional pain syndrome/reflex sympathetic dystrophy with associated saphenous neuropathy. PAGEID 73. After considering the entire record, the ALJ found that plaintiff has the residual functional capacity (“RFC”) to perform sedentary work,

except that he requires a sit/stand option with allowance to alternate sitting or standing positions for up to two minutes, at 30-minute intervals without going off-task. He should never operate foot controls with his right foot. The claimant should never climb ladders, ropes or scaffolds, kneel, crouch or crawl. He can occasionally climb ramps and stairs, balance, and stoop. He should avoid concentrated exposure to extreme cold and heat, wetness, and humidity. The claimant should avoid all exposure to unprotected heights, hazardous machinery and commercial driving. He is limited to performing simple, routine and repetitive tasks requiring only simple decisions, with no fast-paced production requirements and few workplace changes because of medication side effects and pain.

PAGEID 74. Citing the testimony of the vocational expert, the ALJ concluded that there were jobs in the economy which plaintiff could perform, and that he was not disabled. PAGEID 91-92.

         This matter is before the court for consideration of plaintiff's March 24, 2017, objections (Doc. 15) in response to the March 10, 2017, report and recommendation of the magistrate judge (Doc. 14), recommending that the decision of the Commissioner be affirmed.

         I. Standard of Review

         If a party objects within the allotted time to a report and recommendation, the court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         The court's review “is limited to determining whether the Commissioner's decision ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). Put another way, a decision supported by substantial evidence is not subject to reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable mind could accept the evidence as adequate to support a conclusion [and] . . . presupposes that there is a zone of choice within which the decision-makers can go either way, without interference by the courts.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation omitted). Even if supported by substantial evidence, however, “‘a decision of the Commissioner will not be upheld where the [Commissioner] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         II. Objections

         A. ALJ's Consideration of Listing 1.02A

         At step three of the disability analysis, the ALJ must determine whether the claimant's impairment is of a severity sufficient to meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the impairment is of a severity sufficient to meet or medically equal the criteria of a listing and meets the duration requirement in 20 C.F.R. §404.1509, then the claimant is disabled. At step three of the evaluation process, it is the burden of the claimant to show that he meets or equals the listed impairment. Thacker v. Social Sec. Admin., 93 F. App'x 725, 727-28 (6th Cir. 2004)(citing Buress v. Sec'y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir.1987)).

         The ALJ addressed whether plaintiff met the requirements of Listing 1.02A, as follows:

The undersigned has considered the severity of the claimant's osteoarthritis and sprains and strains of the right knee/leg pursuant to section 1.02A of the listing of impairments. The claimant does not have a major dysfunction of a joint(s)(due to any cause), characterized by gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affect[ed] joint(s), with A) involvement of one major peripheral weight-bearing joint (i.e. hip, ...

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