United States District Court, S.D. Ohio, Western Division
DENNY L. REED Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
Denny Reed filed this Social Security appeal in order to
challenge the Defendant's denial of his disability claim
after remand from this Court. See 42 U.S.C.
§405(g). Proceeding through counsel, Plaintiff presents
two claims of error. For the reasons explained below, I
conclude that the ALJ's finding of non-disability is
supported by substantial evidence and should be AFFIRMED.
Summary of Administrative Record
instant appeal represents Plaintiff's second appearance
before this Court. He initially filed an application for
Disability Insurance Benefits (“DIB”) on March 9,
2011, alleging disability primarily due to a back impairment,
beginning on December 23, 2008. After his claim was denied
through the administrative process, including after an
evidentiary hearing and written decision by an administrative
law judge (“ALJ”) in 2013, Plaintiff appealed to
this Court. On September 15, 2015, the undersigned reversed
the ALJ's 2013 decision, and remanded for further review
of the evidence under sentence four of the Social Security
Act. (Tr. 507-517). Following remand from this Court, the
Appeals Counsel vacated the prior decision and reassigned the
case to a new ALJ.
evidentiary hearing was held on July 12, 2016 before ALJ
Jeffrey Hartranft, at which Plaintiff, a medical expert, and
a vocational expert all gave testimony. (Tr. 524-581). On
September 16, 2016, ALJ Hartranft issued a new adverse
decision. (Tr. 467-479). Plaintiff did not seek further
Appeals Council review of this second adverse DIB decision
but instead, timely filed this appeal to obtain additional
federal judicial review. (Tr. 465).
was 36 years old on the date of his alleged disability, and
was 38 years old on December 31, 2010, when he was last
insured for purposes of DIB. (Tr. 478). He had a high school
education and past relevant skilled work as a welder, an auto
services manager, a drywaller, a salesman, mechanic, autobody
repair, and mobile home utility worker, as well as additional
work as a material handler and airport utility worker at the
semi-skilled level, and unskilled work as a lumbar handler.
determined that Plaintiff suffered from severe impairments of
lumbar degenerative disc disease; status post burst fracture
at ¶ 3, with fusion at ¶ 2-4 and diabetes mellitus.
(Tr. 470). However, the ALJ determined that Plaintiff did not
meet or equal any listing in 20 C.F.R. Part 404, Subpart P,
Appendix 1, such that Plaintiff was entitled to a presumption
of disability. (Tr. 471). Instead, the ALJ found that
Plaintiff retained the residual functional capacity
(“RFC”) to perform a limited range of sedentary
work with the following restrictions:
[H]e was able to stand and walk for 15 minutes at a time, for
a total of two hours in an eight-hour day. He could sit for
one hour at a time, then needed to get up briefly, which
could be combined with the usual breaks or other workplace
tasks, but as a result he would be off task five percent of
the workday in addition to the usual breaks. He could
occasionally stoop, kneel, crouch, crawl and climb ramps and
stairs, but should not climb ladders, ropes or scaffolds. He
could frequently balance. He should avoid workplace hazards
such as unprotected heights and machinery. He was unable to
operate foot controls with the right lower extremity.
is no dispute that Plaintiff cannot perform any of his past
work. However, based on the testimony of a vocational expert,
the ALJ determined that Plaintiff would have been able to
perform a substantial number of jobs in the national economy,
including the representative unskilled occupations of
assembler, inspector, and sorter, prior to the date that he
was last insured. (Tr. 479). Therefore, the ALJ concluded
that Plaintiff was not under a disability. (Id.)
argues that the ALJ erred when he: (1) failed to find that
Plaintiff's spine disorder met the criteria of Listing
1.04A; and (2) improperly credited the opinions of the
medical expert over the opinions of his treating physicians.
I find no error.
Judicial Standard of Review
eligible for benefits, a claimant must be under a
“disability.” See 42 U.S.C.
§1382c(a). Narrowed to its statutory meaning, a
“disability” includes only physical or mental
impairments that are both “medically
determinable” and severe enough to prevent the
applicant from (1) performing his or her past job and (2)
engaging in “substantial gainful activity” that
is available in the regional or national economies. See
Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).
court is asked to review the Commissioner's denial of
benefits, the court's first inquiry is to determine
whether the ALJ's non-disability finding is supported by
substantial evidence. 42 U.S.C. § 405(g). 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)
(additional citation and internal quotation omitted). In
conducting this review, the court should consider the record
as a whole. Hephner v. Mathews, 574 F.2d 359, 362
(6th Cir. 1978). If substantial evidence supports the
ALJ's denial of benefits, then that finding must be
affirmed, even if substantial evidence also exists in the
record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth
Circuit has explained:
The Secretary's findings are not subject to reversal
merely because substantial evidence exists in the record to
support a different conclusion.... The substantial evidence
standard presupposes that there is a ‘zone of
choice' within which the Secretary may proceed without
interference from the courts. If the Secretary's decision
is supported by substantial evidence, a reviewing court must
Id. (citations omitted).
considering an application for supplemental security income
or for disability benefits, the Social Security Agency is
guided by the following sequential benefits analysis: at Step
1, the Commissioner asks if the claimant is still performing
substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant's impairments
are “severe;” at Step 3, the Commissioner
analyzes whether the claimant's impairments, singly or in
combination, meet or equal a Listing in the Listing of
Impairments; at Step 4, the Commissioner determines whether
or not the claimant can still perform his or her past
relevant work; and finally, at Step 5, if it is established
that claimant can no longer perform his or her past relevant
work, the burden of proof shifts to the agency to determine
whether a significant number of other jobs which the claimant
can perform exist in the national economy. See Combs v.
Com'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006); 20 C.F.R. §§404.1520, 416.920.
plaintiff bears the ultimate burden to prove by sufficient
evidence that he is entitled to disability benefits. 20
C.F.R. § 404.1512(a). A claimant seeking benefits must
present sufficient evidence to show that, during the relevant
time period, he suffered an impairment, or combination of
impairments, expected to last at ...