United States District Court, S.D. Ohio, Western Division, Dayton
JERALD W. OVERLEY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
H. Rice District Judge
REPORT AND RECOMMENDATION
THAT: (1) THE NON-DISABILITY FINDING AT ISSUE 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
Michael J. Newman United States Magistrate Judge
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 Disability Insurance Benefits
(“DIB”) and/or Supplemental Security Income
(“SSI”). This case is before the Court on
Plaintiff's Statement of Errors (doc. 11), the
Commissioner's memorandum in opposition (doc. 15),
Plaintiff's reply (doc. 16), the administrative record
(doc. 8),  and the record as a whole.
filed for DIB and SSI alleging a disability onset date of
July 1, 2010. PageID 44. Plaintiff claims disability as a
result of a number of alleged impairments including,
inter alia, mild lumbosacral degenerative disc
disease, residuals of left knee contusion, chronic
obstructive pulmonary disease, and an affective disorder.
an initial denial of his application, Plaintiff received a
hearing before ALJ Gregory G. Kenyon on January 4, 2017.
PageID 72-112. The ALJ issued a written decision on July 3,
2017 finding Plaintiff not disabled. PageID 44-63.
Specifically, the ALJ found at Step Five that, based upon
Plaintiff's residual functional capacity
(“RFC”) to perform a reduced range of medium
work,  “there are jobs that exist in
significant numbers in the national economy that [Plaintiff]
can perform[.]” PageID 43-50.
the Appeals Council denied Plaintiff's request for
review, making the ALJ's non-disability finding the final
administrative decision of the Commissioner. PageID 29-31.
See Casey v. Sec'y of Health & Human Servs.,
987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed
this timely appeal. 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 44-63), Plaintiff's Statement of Errors
(doc. 11), the Commissioner's memorandum in opposition
(doc. 15), and Plaintiff's reply (doc. 16). 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