United States District Court, S.D. Ohio, Western Division
KELLY L. DEFFINGER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
Kelly L. Deffinger brings this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3) for judicial review of the
final decision of the Commissioner of Social Security
("Commissioner") denying her applications for
disability insurance benefits ("DIB") and
supplemental security income ("SSI"). This matter
is before the Court on plaintiffs statement of errors (Doc.
6), the Commissioner's response in opposition (Doc. 12),
and plaintiffs reply memorandum (Doc. 13).
protectively filed her applications for DIB and SSI in
October 2014, alleging disability since June 22,
2013due to an injury causing herniated discs in
the neck and lower back, bulging discs in the middle of her
spine, depression, and anxiety. The applications were denied
initially and upon reconsideration. Plaintiff, through
counsel, requested and was granted a de novo hearing
before administrative law judge ("ALJ") Peter J.
Boylan. Plaintiff and a vocational expert ("VE")
appeared and testified at the ALJ hearing on February 24,
2017. On April 12, 2017, the ALJ issued a decision denying
plaintiffs DIB and SSI applications. Plaintiffs request for
review by the Appeals Council was denied, making the decision
of ALJ Boylan the final administrative decision of the
Legal Framework for Disability Determinations
qualify for disability benefits, a claimant must suffer from
a medically determinable physical or mental impairment that
can be expected to result in death or that has lasted or can
be expected to last for a continuous period of not less than
12 months. 42 U.S.C. §§ 423(d)(1)(A) (DIB),
1382c(a)(3)(A) (SSI). The impairment must render the claimant
unable to engage in the work previously performed or in any
other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2),
promulgated by the Commissioner establish a five-step
sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment - i.e.,
an impairment that significantly limits his or her physical
or mental ability to do basic work activities - the claimant
is not disabled.
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
5) If the claimant can make an adjustment to other work, the
claimant is not disabled. If the claimant cannot make an
adjustment to other work, the claimant is disabled.
Robbers v. Comm'r of Soc. Sec, 582 F.3d
647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the
burden of proof at the first four steps of the sequential
evaluation process. Id.; Wilson v. Comm'r of Sac.
Sec, 378 F.3d 541, 548 (6th Cir. 2004). Once the
claimant establishes a prima facie case by showing an
inability to perform the relevant previous employment, the
burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that
such employment exists in the national economy.
Rubbers, 582 F.3d at 652; Harmon v. Apfel,
168 F.3d 289, 291 (6th Cir. 1999).
The Administrative Law Judge's Findings
previously filed applications for DIB and SSI in April 2011,
alleging disability since March 7, 2011. These applications
were denied initially and upon reconsideration. After a
hearing, ALJ Curt Marceille issued a decision on June 21,
2013 denying plaintiffs DIB and SSI applications. (Tr.
71-89). In rendering his decision on plaintiffs subsequent
DIB and SSI applications, ALJ Boylan recognized that he was
bound under principles of administrative res judicata by ALJ
Marceille's prior findings as to plaintiffs residual
functional capacity ("RFC") "unless there is
new and material evidence or a showing of 'changed
circumstances.'" (Tr. 10) (citing Acquiescence
Ruling (AR) 98-4(6); Drummond v. Comm'r of
Soc. Sec, 126 F.3d 837 (6th Cir. 1997), Dennard v.
Sec'y of H.H.S., 907 F.2d 598 (6th Cir. 1990), AR
98-3(6)). ALJ Boylan determined that "the updated
medical evidence demonstrates material changes that merit
slight changes to the findings of fact identified in the
prior decision." (Id.).
Boylan applied the sequential evaluation process and made the
following findings of fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of
the Social Security Act through September 30, 2016.
2. The [plaintiff] has not engaged in substantial gainful
activity since June 22, 2013, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
3. The [plaintiff] has the following severe impairments:
degenerative disc disease of the spine status post two
cervical discectomies and one lumbar laminectomy; depression;
and borderline intellectual functioning (20 CFR 404.1520(c)
4. The [plaintiff] does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), ...