United States District Court, S.D. Ohio, Western Division, Dayton
LEWIS C. BERRY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ENTRY: (1) AFFIRMING THE ALJ'S
NON-DISABILITY FINDING AS SUPPORTED BY SUBSTANTIAL EVIDENCE;
AND (2) TERMINATING THIS CASE ON THE COURT'S
Michael J. Newman, United States Magistrate Judge
Social Security disability benefits appeal is before the
undersigned for disposition based upon the parties'
consent. Doc. 14. 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 on Plaintiff's Statement of Errors (doc. 9), the
Commissioner's memorandum in opposition (doc. 10),
Plaintiff's reply (doc. 11), the administrative record
(doc. 6),  and the record as a whole.
filed an application for DIB and SSI alleging a disability
onset date of October 1, 2006. PageID 350-64. Plaintiff
claims disability as a result of a number of alleged
impairments including, inter alia, residuals of a
gunshot wound to the left shoulder and thigh, posttraumatic
stress disorder (“PTSD”), and depression. PageID
an initial denial of his applications, Plaintiff received a
hearing before ALJ Emily R. Statum on June 12, 2014. PageID
118-36. ALJ Statum issued a decision on September 8, 2014
finding Plaintiff not disabled. PageID 186-202. Specifically,
the ALJ 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, “there are jobs
that exist in significant numbers in the national economy
that [Plaintiff] can perform[.]” PageID 195-203.
Plaintiff appealed the decision of ALJ Statum. The Appeals
Council granted Plaintiff's request for review, vacating
ALJ Statum's non-disability finding, and remanding the
case to the ALJ for further proceedings. PageID 209-13.
remand, Plaintiff received a hearing before ALJ Mark
Hockensmith on February 3, 2016. PageID 87-117. ALJ
Hockensmith issued a decision on February 26, 2016 finding
Plaintiff not disabled. PageID 67-78. Specifically, ALJ
Hockensmith 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, “there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can
perform[.]” PageID 71-78.
the Appeals Council denied Plaintiff's request for
review, making ALJ Hockensmith's non-disability finding
the final administrative decision of the Commissioner. PageID
46-49. See Casey v. Sec'y of Health & Human
Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff
then filed this timely appeal challenging the non-disability
finding of ALJ Hockensmith (hereafter, “ALJ”).
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 67-78), Plaintiff's Statement of Errors
(doc. 9), 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