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Terry D. v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

August 20, 2018

TERRY D.[1], Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION ON COMPLAINT FOR JUDICIAL REVIEW

          DEBRA MCVICKER LYNCH UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b) for a report and recommendation as to its appropriate disposition. As addressed below, the Magistrate Judge recommends that the District Judge AFFIRM the decision of the Deputy Commissioner for Operations of the Social Security Administration (“Commissioner”) that plaintiff Terry D. is not disabled.

         Introduction

          Plaintiff Terry D. applied in April 2014 for Disability Insurance Benefits (DIB) and Supplemental Security Income based on disability (SSI) under Titles II and XVI, respectively, of the Social Security Act. Acting for the Commissioner following a hearing on January 21, 2016, administrative law judge Gladys Whitfield found that Terry is not disabled. The Appeals Council denied review of the ALJ's decision, rendering the ALJ's decision for the Commissioner final. Terry timely filed this civil action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's decision.

         Terry asserts two errors. He contends that the ALJ's step three listing discussion is too perfunctory. He also contends that the RFC is not supported by substantial evidence because he was found able to lift overhead occasionally despite an inability to raise his arms above his collarbone and because the ALJ did not require that he use a cane.

         Standard for Proving Disability and the ALJ's Five-Step Conclusions

          To prove disability, a claimant must show that he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB benefits); 42 U.S.C. § 1382c(a)(3)(A) (SSI benefits).[2] Terry is disabled if his impairments are of such severity that he is not able to perform the work he previously engaged in and, if based on his age, education, and work experience, he cannot engage in any other kind of substantial gainful work that exists in significant numbers in the national economy. 42 U.S.C. 423(d)(2)(A). The Social Security Administration has implemented these statutory standards by, in part, prescribing a five-step sequential evaluation process described at 20 C.F.R. 404.1520.

         The ALJ found as follows in her five-step analysis:

• Step One: Terry had not engaged in substantial gainful activity since December 1, 2012, his alleged onset date.
• Step Two: Terry has the following severe impairments: osteoarthritis and allied disorders.
• Step Three: No. listings were met or medically equaled.
• Residual Functional Capacity for Applying Steps Four and Five: Terry has the RFC “to perform medium work as defined in 20 CFR § 404.1567(c) and § 416.967(c) except unlimited pushing/pulling up to twenty-five pounds and occasional bilateral overhead reaching.” He also is “limited to work that can be performed on even terrain but avoid wet terrain, and avoid concentrated exposure to moving machinery and unprotected heights.”
• Step Four: Terry cannot perform his past relevant work as a short order cook and a kitchen helper because, primarily, that work is performed in environments (kitchens) that have wet floors and thus are not consistent with his RFC.
• Step Five: Relying on the testimony of a vocational expert and in light of Terry's RFC and vocational factors (age, education, and work experience), Terry is capable of performing the following jobs that exist in significant numbers in the ...

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