United States District Court, S.D. Ohio, Western Division, Dayton
JOHNNY B. DREW, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
H. Rice District Judge.
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 CLOSED
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” 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),  and the record as a whole.
filed for SSI and DIB 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.
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).
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,  “there were jobs that
existed in significant numbers in the national economy that
[Plaintiff] could have performed[.]” PageID 43-50.
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.
Evidence of Record
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.
A. 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
that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Bowen,
478 F.3d at 746.
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.
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