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Heath v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division, Dayton

February 27, 2018

LATASHA N. HEATH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Walter H. Rice, District Judge

         REPORT AND RECOMMENDATION[1] 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

         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 Supplemental Security Income (“SSI”) and Child Disability Benefits (“CDB”). This case is before the Court upon Plaintiff's Statement of Errors (doc. 10), the Commissioner's memorandum in opposition (doc. 11), Plaintiff's reply (doc. 12), the administrative record (docs. 7, 8), [2] and the record as a whole.

         I.

         A. Procedural History

         Plaintiff originally filed an application for CDB on November 6, 1998 and an application for SSI on May 31, 2011 alleging disability as of January 1, 1984, when Plaintiff was eight years old. PageID 205-14. She is now 42 years old. Id. Plaintiff alleges disability as a result of a number of alleged impairments including, inter alia, major depressive disorder, anxiety, borderline intellectual functioning, and attention deficit hyperactivity disorder (“ADHD”). PageID 46.

         After an initial denial of her applications, Plaintiff received a hearing before ALJ David A. Redmond on April 5, 2013. PageID 62-75. ALJ Redmond issued a decision on July 19, 2013 finding Plaintiff not disabled. PageID 44-55. Specifically, ALJ Redmond found at Step Five that, based upon Plaintiff's residual functional capacity (“RFC”) to perform a full range of work at all exertional levels subject to specific non-exertional limitations, [3] “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 47-56.

         Thereafter, the Appeals Council denied Plaintiff's request for review, making ALJ Redmond's non-disability finding the final administrative decision of the Commissioner. PageID 31-33. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). On appeal to this Court, Judge Rose granted the parties' joint stipulation to remand to the Commissioner thereby reversing ALJ Redmond's non-disability finding and remanding the case to the Commissioner for additional administrative proceedings. PageID 617-18.

         On remand, Plaintiff received a hearing before ALJ Gregory G. Kenyon on November 14, 2016. PageID 554-90. ALJ Kenyon issued a decision on February 21, 2017 finding Plaintiff not disabled. PageID 528-46. Specifically, ALJ Kenyon found at Step Five that, based upon Plaintiff's residual functional capacity (“RFC”) to perform a full range of work at all exertional levels subject to specific non-exertional limitations, [4] “there are jobs in that exist in significant numbers in the national economy that [she] can perform[.]” PageID 541-46.

         Thereafter, the Appeals Council denied Plaintiff's request for review, making ALJ Kenyon's non-disability finding the final administrative decision of the Commissioner. PageID 31-40. See Casey, 987 F.2d at 1233. 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 ALJ Kenyon's (hereafter “ALJ”) decision (PageID 524-46), Plaintiff's Statement of Errors (doc. 10), the Commissioner's memorandum in opposition (doc. 11), and Plaintiff's reply (doc. 12). 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, 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).

         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 ...


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