UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KEVIN M. GREENE,

Plaintiff, Case No. 3:17-cv-428

vs.

COMMISSIONER OF Magistrate Judge Michael J. Newman

SOCIAL SECURITY, (Consent Case)

Defendant.

______________________________________________________________________________

DECISION AND ENTRY: (1) AFFIRMING THE ALJ’S NON-DISABILITY FINDING 

AS SUPPORTED BY SUBSTANTIAL EVIDENCE; AND (2) TERMINATING THIS 

CASE ON THE COURT’S DOCKET

______________________________________________________________________________

This Social Security disability benefits appeal is before the undersigned for disposition 

based upon the parties’ consent. Doc. 10. At issue is whether the Administrative Law Judge 

(“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance 

Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).

1

 This case is before the Court 

on Plaintiff’s Statement of Errors (doc. 12), the Commissioner’s memorandum in opposition (doc. 

14), Plaintiff’s reply (doc. 15), the administrative record (doc. 7),2 and the record as a whole.

I.

A. Procedural History

Plaintiff initially filed for DIB and SSI alleging a disability onset date of September 3, 2010. 

PageID 69. Plaintiff claims disability as a result of a number of alleged impairments including, inter 

alia, degenerative disc disease, borderline intellectual functioning, and depression. PageID 71. 

 1

 “The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are identical . . . 

and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v. Barnhart, 475 F.3d 727, 

730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB regulations are made with full knowledge 

of the corresponding SSI regulations, and vice versa. 2

 Hereafter, citations to the electronically-filed administrative record will refer only to the PageID number. 
2

After an initial denial of his application, Plaintiff received a hearing before ALJ Mark 

Hockensmith on August 16, 2016. PageID 89. The ALJ issued a written decision on October 31, 

2016 finding Plaintiff not disabled. PageID 69-83. Specifically, the ALJ found at Step Five that, 

based upon Plaintiff’s Residual Functional Capacity (“RFC”) to perform a reduced range of 

medium work,

3 “there were jobs that existed in significant numbers in the national economy that 

[Plaintiff] could have performed[.]” PageID 74-83.

Thereafter, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision, 

making his non-disability finding the final administrative decision of the Commissioner. PageID 

45-47. See Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). 

Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 

2007).

B. Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 69-83), 

Plaintiff’s Statement of Errors (doc. 12), the Commissioner’s memorandum in opposition (doc. 

14), and Plaintiff’s reply (doc. 15). 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 nondisability finding is supported by substantial evidence, and (2) whether the ALJ employed the 

 3 Medium work involves “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects 

weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). An individual who can perform light work is presumed also 

able to perform light and sedentary work. Id. Light work “involves lifting no more than 20 pounds at a time with 

frequent lifting or carrying of objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or 

. . . sitting most of the time with some pushing and pulling of arm or leg controls.” Id. § 404.1567(b). Sedentary 

work “involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, 

ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of 

walking and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
3

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 
4

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential 

review poses five questions:

1. Has the claimant engaged in substantial gainful activity?;

2. Does the claimant suffer from one or more severe impairments?;

3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing 

of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?; 

4. Considering the claimant’s RFC, can he or she perform his or her past 

relevant work?; and

5. Assuming the claimant can no longer perform his or her past relevant work 

-- and also considering the claimant’s age, education, past work experience, 

and RFC -- do significant numbers of other jobs exist in the national 

economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D. 

Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social 

Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).

III.

In his Statement of Errors, Plaintiff argues the ALJ erred in (1) finding that Plaintiff does 

not meet or equal Listing § 12.05(C); and (2) assessing Plaintiff’s credibility. Doc. 12 at PageID 

629.

Having carefully reviewed the administrative record and the parties’ briefs, and also having 

carefully considered the ALJ’s analysis leading to the non-disability finding here at issue, the Court 

finds the ALJ carefully and reasonably developed and reviewed the record; appropriately 

considered all of the medical evidence at issue; properly weighed opinion evidence based upon 

reasons supported by substantial evidence; reasonably found that Plaintiff did not meet or equal 

any of the Listings; reasonably assessed Plaintiff’s credibility; posed appropriate hypothetical 

questions to the VE; accurately determined Plaintiff’s RFC; and appropriately concluded, at Step 
5

Five (and in reliance on the VE’s sworn testimony), that Plaintiff can perform a significant number

of jobs in the national economy. 

IV.

The Court thus AFFIRMS the ALJ’s non-disability finding as supported by substantial 

evidence, and TERMINATES this case on the Court’s docket.

IT IS SO ORDERED.

Date: April 9, 2019 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge