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Brouman v. Commissioner of Social Security

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

July 31, 2018





         Before me[1] is an action by Alice Ann Brouman under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security denying her application for disability insurance benefits.[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]

         For the reasons set forth below, the decision of the Commissioner will be affirmed as supported by substantial evidence.


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

         Brouman, who was 53 years old at the time of the administrative hearing, [11] is a high school graduate with some college.[12] She is married and has three adult children.[13] Her past relevant employment history includes work as a dialysis technician and machine/biomed technician.[14]

         The ALJ, whose decision became the final decision of the Commissioner, found that Brouman had the following severe impairments: a right lower extremity fracture; arthropathy; cervical disc herniation; tendinitis of the right rotator cuff; sprain and strain of the shoulder and upper arm; and post laminectomy syndrome.[15]

         After concluding that the relevant impairments did not meet or equal a listing, the ALJ made the following finding regarding Brouman's residual functional capacity (“RFC”):

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 404.1567(b) except she can never climb ladders, ropes, or scaffolds; the claimant can occasionally climb ramps and stairs; she can occasionally stoop, kneel, and crouch; the claimant can never crawl and can frequently balance; the claimant can frequently handle, finger, and feel objects with the right hand; she can frequently reach and occasionally overhead reach with the right upper extremity; . . . the claimant must avoid the use of moving machinery and commercial driving.[16]

         Based on that residual functional capacity, the ALJ found Brouman capable of her past relevant work as dialysis technician and, therefore, not under a disability.[17]

         B. Issue on judicial review

         Brouman 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, Brouman presents the following issue for judicial review:

• Whether the Appeals Council erred by finding that the opinion of plaintiff's treating physician was about “a later time” and therefore did not consider whether it was “new and material evidence.”[18]

         For the reasons that follow, I will conclude that the ALJ's finding of no disability is supported by substantial evidence and, therefore, must be affirmed.


         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. 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.[19]

         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.[20] The court may not disturb the Commissioner's findings, even if the preponderance of the evidence favors the claimant.[21]

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

         2. Appeals Council

         While new material evidence may be submitted to the Appeals Council, on appeal the Court reviews the ALJ's decision, not the Appeals Council's denial of review.[22] When the Appeals Council considers new evidence but denies review, the Court “cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ's decision.”[23] The Court may, however, remand the case ...

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