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Drew v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division, Dayton

June 13, 2019

JOHNNY B. DREW, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Walter H. Rice District Judge.

         REPORT AND RECOMMENDATION [1] 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 CLOSED

          Michael J. Newman United States Magistrate Judge.

         This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” for the closed period between his alleged onset date of January 30, 2013 and September 1, 2016. The ALJ determined that after September 1, 2016, Plaintiff was disabled and entitled to Supplemental Security Income (“SSI”). However, the ALJ's finding precluded Plaintiff from receiving Disability Insurance Benefits (“DIB”) because his date last insured expired nine months prior to the disability onset date, and an individual must be fully insured at the time of disability to qualify for DIB. 20 C.F.R. § 404.101(a). Plaintiff's appeal concerns this non-disability finding for the closed period only and nothing in this opinion shall disturb the ALJ's finding that Plaintiff was disabled as of September 1, 2016. This case is before the Court on Plaintiff's Statement of Errors (doc. 9), the Commissioner's memorandum in opposition (doc. 13), Plaintiff's reply (doc. 14), the administrative record (doc. 7), [2] and the record as a whole.

         I.

         A. Procedural History

         Plaintiff filed for SSI and DIB[3] alleging, as noted, a disability onset date as of January 30, 2013. PageID 1804. Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, cervical degenerative disc disease, lumbar degenerative disc disease, bilateral shoulder degenerative joint disease (“DJD”), carpal tunnel, an anxiety disorder, and depression. PageID 611.

         After an initial denial of his application, Plaintiff received a hearing before ALJ Gregory G. Kenyon on January 5, 2015. PageID 63-91. The ALJ issued a written decision on February 24, 2015 finding Plaintiff not disabled. PageID 43-56. ALJ Kenyon's opinion was ultimately remanded by this Court on July 17, 2017 for a more complete analysis of the medical opinions of record. Drew v. Comm'r of Soc. Sec., No. 3:16-CV-289, 2017 WL 3024248 (S.D. Ohio July 17, 2017).

         On remand, Plaintiff received a second administrative hearing before ALJ Kenyon on March 2, 2018. PageID 635-61. On consideration of new medical evidence submitted by Plaintiff, ALJ Kenyon (hereinafter “ALJ”) issued a written decision on May 2, 2018 finding Plaintiff disabled as of September 1, 2016. PageID 625. Prior to that date, however, the ALJ found at Step Five that, based upon Plaintiff's residual functional capacity (“RFC”) to perform a reduced range of light work, [4] “there were jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed[.]” PageID 43-50.

         Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's partial disability finding the final administrative decision of the Commissioner. PageID 32-34. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely appeal, arguing that the ALJ erroneously determined that he was not disabled prior to September 1, 2016. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007). This non-disability finding for the closed period between January 30, 2013 and September 1, 2016 is now before the court for review.

         B. Evidence of Record

          The evidence of record is adequately summarized in the ALJ's decision (PageID 607-27), Plaintiff's Statement of Errors (doc. 9), the Commissioner's memorandum in opposition (doc. 13), and Plaintiff's reply (doc. 14). The undersigned incorporates all of the foregoing and sets forth the facts relevant to this appeal herein.

         II. A. Standard of Review

         The 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).

         Substantial 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.

         The 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 that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen, 478 F.3d at 746.

         B. “Disability” Defined

         To be eligible for disability benefits, a claimant must be under a “disability” as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a “disability” includes physical and/or mental impairments that are both “medically determinable” and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in “substantial gainful activity” that is available in the regional or national economies. Id.

         Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 ...


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