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Berry v. Commissioner of Social Security

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

July 26, 2019

CARL E. BERRY III, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Black, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff 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.

         I. Summary of Administrative Record

         In 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.

         Plaintiff 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).

         Based 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.

         The 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.

         II. Analysis

         A. Judicial Standard of Review

         To be 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).

         When a 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 ...

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