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Green v. Commissioner of Social Security

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

June 25, 2018

ELWIN GREEN, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JACK ZOUHARY JUDGE.

          REPORT & RECOMMENDATION

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

         Introduction

         Before me by referral[1] is an action for judicial review of the final decision of the Commissioner of Social Security denying the application of the plaintiff, Elwin Gerald Green, Jr., for 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] At the oral argument, counsel for the Commissioner referred to a recent decision in this district entered after briefing had closed.[11]The Court granted Green's counsel leave to file a supplemental brief addressing that case.[12]Green filed timely the supplemental brief.[13]

         Facts

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

         Green, who was 51 years old at the time of the administrative hearing, [14] has an 8thgrade education, is single, and lives with his mother.[15] He has no past relevant work experience.[16]

         The Administrative Law Judge (“ALJ”), whose decision became the final decision of the Commissioner, found that Green had severe impairments consisting of a history of amputation of the right foot with re-attachment and osteoarthritis of the right ankle (20 CFR 416.920(c)).[17] The ALJ made the following finding regarding Green's residual functional capacity:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant: can stand and walk 4 hours in an 8 hour workday; can occasionally push and pull with his right lower extremity; can occasionally climb ramps and stairs; can never climb ladders ropes and scaffolds; can frequently stoop; can never kneel or crawl; can occasionally crouch; and can never be exposed to unprotected heights, dangerous moving mechanical parts, operate a motor vehicle, work with hazardous equipment, or be exposed to uneven terrain.[18]

         Green has no past relevant work history.[19]

         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 nationally that Green could perform.[20]The ALJ, therefore, found Green not under a disability.[21]

         B. Issue on judicial review

         Green 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, Green presents the following issue for judicial review:

• “The ALJ erred when he failed to include a limitation based on plaintiff's use of a cane in his hypothetical to the vocational expert or to properly explain why a cane was not medically necessary for standing and walking in the workplace.”[22]

         The Court recommends that the ALJ's finding of no disability is not supported by substantial evidence and, therefore, must be reversed and remanded for further administrative proceedings.

         Analysis

         A. Applicable legal principles

         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. 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 Commissioner can act, without the fear of court interference.[23]

         Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds could reach different conclusions on the evidence. If such is the case, the Commissioner survives “a directed verdict” and wins.[24] The court may not disturb the Commissioner's findings, even if the preponderance of the evidence favors the claimant.[25]

         I will review the findings of the ALJ at issue here consistent with that deferential standard.

         B. Application of standards

         This is a difficult case with a narrow focus: does substantial evidence support the ALJ's decision to exclude from the RFC the need to use a cane for walking?

         There are several important facts to which there is no dispute that ...


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