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Pennington v. Berryhill

United States District Court, N.D. Florida, Pensacola Division

February 16, 2018

RONALD O. PENNINGTON, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM ORDER

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE

         This case is before the court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Commissioner of Social Security (“Commissioner”) denying Ronald Pennington Jr.'s applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and Supplemental Security Income (“SSI”) under Title XVI, 42 U.S.C. §§ 1381-33. The parties consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 for all proceedings in this case, including entry of final judgment. Upon de novo review of the record before the court, I conclude the Commissioner did not err by declining to remand Pennington's case to the ALJ after the Appeals Council received Dr. Groom's evaluation. The decision of the Commissioner, therefore, will be affirmed and the applications for DIB and SSI denied.

         ISSUE ON REVIEW

         Mr. Pennington, who will be referred to as claimant, plaintiff, or by name, claims the Appeals Council erred by failing to remand the case to the ALJ for consideration of new and material evidence. (Doc. 9).

         PROCEDURAL HISTORY

         On June 4, 2014, plaintiff protectively filed applications for DIB and SSI, claiming disability beginning January 1, 2007, due to “head injury/headaches, ” “learning/can't stay focused, ” and asthma. T. 73, 83.[1] The Commissioner denied the applications initially and on reconsideration. T. 93-94, 116-17. After a hearing on February 23, 2016, the ALJ found claimant not disabled under the Act. T. 26-34, 40. Claimant requested review by the Appeals Council and submitted additional medical evidence. T. 1-4. The Appeals Council denied the request for further review on May 24, 2017, and, as a result, the ALJ's decision became the final determination of the Commissioner. T. 1-4. The Commissioner's determination is now before the court for review.

         FINDINGS OF THE ALJ

         In his written decision, the ALJ made several findings relative to the issues raised in this appeal:

• Claimant meets the insured status requirements of the Act through June 30, 2013. T. 28.
• Claimant has not engaged in substantial gainful activity since January 1, 2007, the alleged onset date. T. 28.
• Claimant has one severe impairment, asthma. T. 28.
• Claimant has the residual functional capacity (“RFC”) to perform a reduced range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). Claimant can lift/carry 10 pounds frequently and 20 pounds occasionally; sit for a total of about 6 hours in an 8-hour workday; stand/walk for a total of about 6 hours in an 8-hour workday; should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc.; and avoid concentrated exposure to hazards (machinery, heights, etc.). T. 30.
• Claimant is capable of performing past relevant work as a security guard. Alternatively, he is capable of performing work as a silver wrapper, electrical assembler, and merchandise marker. T. 32-33.
• Claimant has not been under a disability, as defined in the Act, from January 1, 2007, through ...

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