United States District Court, S.D. Ohio, Western Division, Dayton
TAMARA J. ULERY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
H. Rice District Judge.
REPORT AND RECOMMENDATION  THAT: (1) THE
ALJ'S NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY
SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE
REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42
U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION; AND (3) THIS CASE BE CLOSED.
Michael J. Newman United States Magistrate Judge.
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”) and/or Supplemental Security Income
(“SSI”). This case is before the Court upon
Plaintiff's Statement of Errors (doc. 8), the
Commissioner's memorandum in opposition (doc. 10),
Plaintiff's reply memorandum (doc. 11), the
administrative record (doc. 5),  and the record as a whole.
filed for DIB and SSI alleging a disability onset date of
August 8, 2012. PageID 232-44. Plaintiff claims disability as
a result of a number of alleged impairments including,
inter alia, degenerative joint disease of the knees,
carpal tunnel syndrome, fibromyalgia, obesity, sleep apnea,
anxiety and depression. PageID 69. After initial denial of
her applications, Plaintiff received a hearing before ALJ
Gregory Kenyon on September 22, 2014. PageID 91-111. The ALJ
issued a written decision on November 17, 2014 finding
Plaintiff not disabled. PageID 67-85. 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 46-48. 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).
Evidence of Record
evidence of record is adequately summarized in the ALJ's
decision (PageID 67-85), Plaintiff's Statement of Errors
(doc. 8), the Commissioner's memorandum in opposition
(doc. 10), and Plaintiff's reply (doc. 11). The
undersigned incorporates all of the foregoing and sets forth
the facts relevant to this appeal herein.
Standard of Review
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,
745-46 (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).
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.
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.
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.
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