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Marshall v. Commissioner of Social Security

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

March 28, 2018



          William H. Baughman, Jr. United States Magistrate Judge.


         Before me[1] is an action for judicial review of the final decision of the Commissioner of Social Security denying the applications of the plaintiff, Katharina T. Marshall for disability insurance benefits and supplemental security income.[2] The Commissioner has answered[3] and filed the transcript of the administrative record.[4] Under my initial[5] and procedural[6] orders the parties have briefed their positions.[7] and filed supplemental charts[8] and the fact sheet.[9] They have participated in a telephonic oral argument.[10]


         A. Background facts and decision of the Administrative Law Judge (“ALJ”)

         Marshall, who was 43 years old at the time of the administrative hearing, [11] graduated high school, is single, and lives with her three children, two of them being minors.[12] Her past relevant employment history includes employment as a photographer/photo studio manager, fast food worker, and assembly worker.[13]

         The Administrative Law Judge (“ALJ”), whose decision became the final decision of the Commissioner, found that Marshall had severe impairments consisting of cervical degenerative disc disease, bilateral carpel tunnel syndrome, fibromyalgia, depressive disorder, anxiety disorder, obsessive-compulsive disorder, history of alcohol abuse, and histrionic personality disorder.[14] The ALJ made the following finding regarding Marshall's residual functional capacity:

The claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant cannot crawl or climb ladders, ropes, or scaffolds; but she can frequently stoop, kneel, crouch, and climb ramps and stairs. The claimant is capable of frequent handling, fingering, and reaching in all directions. She must not be exposed to workplace hazards such as unprotected machinery or heights and cannot perform commercial driving. The claimant is limited to work with no strict production quotas or fast paced work, such as an assembly line. In addition, the claimant is limited to simple, routine, and repetitive tasks that involve only simple work-related decisions. Finally, the claimant can have only occasional and superficial interaction with the general public and co-workers.[15]

         Given that residual functional capacity, the ALJ found Marshall incapable of performing her past relevant work as photographer/portrait studio manager, fast food worker, and an assembly worker.[16]

         Based on an answer to a hypothetical question posed to the vocational expert at the hearing setting forth the residual functional capacity finding quoted above, the ALJ determined that a significant number of jobs existed locally and nationally that Marshall could perform.[17] The ALJ, therefore, found Marshall not under a disability.[18]

         B. Issues on judicial review

         Marshall asks for reversal of the Commissioner's decision on the ground that it does not have the support of substantial evidence in the administrative record. Specifically, Marshall presents the following issues for judicial review:

• Whether the ALJ's residual functional capacity finding is supported by substantial evidence.
• Whether remand is warranted for the consideration of new and material evidence.[19]

         As more detailed fully below, I will find that the decision of the Commissioner should be reversed, and the matter remanded under Sentence Six of 42 U.S.C. 405(g) for the consideration of new and material evidence.


         A. Standards of review

         1. Substantial evidence

         The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable to decisions of the ALJs in disability cases:

Congress has provided for federal court review of Social Security administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....” In other words, on review of the Commissioner's decision that claimant is not totally disabled within the meaning of the Social Security Act, the only issue reviewable by this court is whether the decision is supported by substantial evidence. Substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ”
The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. This is so because there is a “zone of choice” within which the ...

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