United States District Court, S.D. Ohio, Western Division
CARL E. BERRY III, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
Carl E. Berry III filed this Social Security appeal in order
to challenge the Defendant's findings that he is not
disabled. See 42 U.S.C. §405(g). Proceeding
through counsel, Plaintiff presents two claims of error, both
of which the Defendant disputes. For the reasons explained
below, I conclude that the ALJ's finding of
non-disability should be REVERSED and REMANDED for an
immediate award of benefits because it is not supported by
substantial evidence in the administrative record.
Summary of Administrative Record
October 2013, Plaintiff filed for Supplemental Security
Income alleging a disability onset date of July 17, 1994,
when he was 13 years old. (Tr. 12). After Plaintiff's
claims were denied initially and upon reconsideration, he
requested a hearing de novo before an Administrative
Law Judge (“ALJ”). On June 16, 2016, ALJ Kevin
Detherage held a hearing at which Plaintiff appeared with a
non-attorney representative. The ALJ heard testimony from
Plaintiff and an impartial vocational expert. Id. In
December 2016, the ALJ determined that Plaintiff was not
under a disability as defined by the Social Security Act.
(Tr. 12-19). The Appeals Council denied Plaintiff's
request for review in January 2018. (Tr. 1). Plaintiff filed
an appeal to this Court on March 26, 2018, seeking judicial
review of the denial of his application for benefits.
was 32-years-old on the date his application was filed (Tr.
18). He is married and holds a high school diploma. (Tr. 18).
Plaintiff has stated that he can perform some exercises and
household chores, can prepare meals, can drive for short
periods, and can go grocery shopping. (Tr. 16). Plaintiff has
no past relevant work. (Tr. 18).
upon the record and testimony presented at the hearing, the
ALJ found that Plaintiff had the following severe
impairments: “cardiomyopathy, dyspnea, sickle cell
anemia, remote history of a gunshot wound, and
syncope.” (Tr. 14). (Tr. 16). The ALJ concluded that
none of Plaintiff's impairments alone or in combination
met or medically equaled a listed impairment in 20 C.F.R.
Part 404, Subp. P, Appendix 1 (Tr. 14). The ALJ determined
that Plaintiff retains the following residual functional
capacity (“RFC”) to perform unskilled, sedentary
work with the following limitations:
[T]he claimant can never climb ladders, ropes, or scaffolds,
and can occasionally climb ramps or stairs. He should avoid
exposure to hazards, such as heights or machinery with moving
parts. He should avoid concentrated exposure to dusts, fumes,
gases, odors, or poorly ventilated areas. The claimant cannot
perform commercial driving. In addition, [claimant] is likely
to be absent from work 1 day per month.
(Tr. 15). Plaintiff has no past relevant work, so the ALJ
could not make a determination of transferability of job
skills. (Tr. 18). Based upon the record as a whole including
testimony from the vocational expert, and given
Plaintiff's age, education, work experience, and RFC, the
ALJ concluded that there are jobs that exist in significant
numbers in the national economy that he can perform,
including such jobs as assembler, packer, and inspector.
Accordingly, the ALJ determined that Plaintiff is not under
disability, as defined in the Social Security Regulations,
and is not entitled to DIB. Id.
Appeals Council denied Plaintiff's request for review.
Therefore, the ALJ's decision stands as the
Defendant's final determination. On appeal to this Court,
Plaintiff argues that the ALJ erred by: 1) weighing the
opinion evidence of record incorrectly; 2) determining an RFC
for sedentary work based on outdated or incomplete records.
Upon close analysis, I find Plaintiff's first assignment
of error to be dispositive and herein recommend remanding
this matter for an immediate award of benefits.
Judicial Standard of Review
eligible for SSI or DIB a claimant must be under a
“disability” within the definition of the Social
Security Act. See 42 U.S.C. §§423(a), (d),
1382c(a). The definition of the term “disability”
is essentially the same for both DIB and SSI. See Bowen
v. City of New York, 476 U.S. 467, 469-70 (1986).
Narrowed to its statutory meaning, a “disability”
includes only physical or mental impairments that are both
“medically determinable” and severe enough to
prevent the applicant from (1) performing his or her past job
and (2) engaging in “substantial gainful
activity” that is available in the regional or national
economies. See Bowen, 476 U.S. at 469-70 (1986).
court is asked to review the Commissioner's denial of
benefits, the court's first inquiry is to determine
whether the ALJ's non-disability finding is supported by
substantial evidence. 42 U.S.C. § 405(g). 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)
(additional citation and internal quotation omitted). In
conducting this review, the court should consider the record
as a whole. Hephner v. Mathews, 574 F.2d 359, 362
(6th Cir. 1978). If substantial evidence supports the
ALJ's denial of benefits, then that finding must be
affirmed, even if substantial evidence also exists in the
record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth
Circuit has explained:
The Secretary's findings are not subject to reversal
merely because substantial evidence exists in the record to
support a different conclusion . . . . The substantial
evidence standard presupposes that there is a ‘zone of
choice' within which the Secretary may proceed without
interference from the courts. If the Secretary's ...