Reddick v. Colvin

• Decision Date: 12 August 2014
• Docket Number: CIVIL ACTION NO. 4:13CV-00137-HBB
• Parties: MARK A. REDDICK PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

MARK A. REDDICK PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 4:13CV-00137-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION

August 12, 2014

MEMORANDUM OPINION AND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Mark A. Reddick ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 16) and Defendant (DN 17) have filed a Fact and Law Summary.

Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 14). By Order entered March 10, 2014 (DN 13), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No such request was filed.

FINDINGS OF FACT

On February 328, 2011, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income payments (Tr. 12, 166, 173). Plaintiff alleged that he became disabled on January 12, 2011, as a result of high blood pressure, diabetes, neuropathy in legs/feet, bad back (Tr. 12, 201). Administrative Law Judge Edward F. Sweeney ("ALJ") conducted a video hearing from Paducah, Kentucky on August 1, 2012 (Tr. 12, 29-31). Plaintiff appeared in Madisonville, Kentucky and was represented by attorney Ronald Bruce (Tr. 12, 29-31). Also present and testifying was Kenneth Boaz, an impartial vocational expert (Tr. 12, 29-31).

In a decision dated September 13, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 12-23). The ALJ concluded that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2015 (Tr. 14). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since January 12, 2011, the alleged onset date (Tr. 14). At the second step, the ALJ determined that Plaintiff's diabetes mellitus, diabetic neuropathy, hypertension, and obesity are "severe" impairments within the meaning of the regulations (Tr. 14). Notably, at the second step, the ALJ also determined that Plaintiff's medically determinable mental impairment of depression is a "non-severe" impairment within the meaning of the regulations because it does not cause more than minimal limitation in his ability to perform basic mental work activities (Tr. 14). At the third step, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (Tr. 16).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform less than a full range of sedentary work because he can only occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; he should never climb ladders, ropes, or scaffolds; he can only occasionally operate foot controls with his bilateral lower extremities; and he should avoid concentrated exposure to vibration, temperature extremes and wetness (Tr. 16). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of his past relevant work as an electrician's helper, van/truck driver, truck driver, material handler, and bartender helper (Tr. 22).

The ALJ proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 22-23). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 22-23). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from January 12, 2011, through the date of the decision, September 13, 2012 (Tr. 23).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 8). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-5).

CONCLUSIONS OF LAW

The Social Security Act authorizes payment of Disability Insurance Benefits and Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term "disability" is defined as an

[i]nability 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 (12) months.

42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a), 416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923 (6^th Cir. 1990).

The Commissioner has promulgated regulations setting forth a five-step sequential evaluation process for evaluating a disability claim. See "Evaluation of disability in general," 20 C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:

1) Is the claimant engaged in substantial gainful activity?

2) Does the claimant have a medically determinable impairment or combination of impairments that satisfies the duration requirement and significantly limits his or her ability to do basic work activities?

3) Does the claimant have an impairment that meets or medically equals the criteria of a listed impairment within Appendix 1?

4) Does the claimant have the residual functional capacity to return to his or her past relevant work?

5) Does the claimant's residual functional capacity, age, education, and past work experience allow him or her to perform a significant number of jobs in the national economy?

Here, the ALJ denied Plaintiff's claim at the fifth step.

As previously mentioned, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-4). At that point, the ALJ's decision became the final decision of theCommissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of the Commissioner's decision).

Review by the Court is limited to determining whether the findings set forth in the final decision of the Commissioner are supported by "substantial evidence," 42 U.S.C. Section 405(g); Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986). "Substantial evidence exists when a reasonable mind could accept the evidence as adequate to support the challenged conclusion, even if that evidence could support a decision the other way." Cotton, 2 F.3d at 695 (quoting Casey v. Secretary of Health and Human Serverices, 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a case for substantial evidence, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Cohen v. Secretary of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

Plaintiff disagrees with Finding No. 4 which addresses the third step in the five step sequential evaluation process (DN 16, Memorandum at Page 1). In Finding No. 4, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Appendix 1 (Tr. 16).

At the third step, a claimant has the burden of demonstrating he has an impairment that meets or medically equals a listing in Appendix 1. See, 20 C.F.R. §§ 404.1520(d), 416.920(d); Burgess v. Secretary of Health and Human Serv's., 835 F.2d 139, 140 (6^th Cir. 1987). To meet a listing in Appendix 1, the medical records regarding the impairment must satisfy both thediagnosis and severity requirements for the listing. Social Security Ruling 96-5p; 20 C.F.R. §§ 404.1525(d), 416.925(d); Hale v. Secretary of Health and Human Serv's., 816 F.2d 1078, 1083 (6^th Cir. 1984). If the impairment does not meet the severity requirements of a listing, then the Administrative Law Judge looks to the opinions of the state agency medical advisors and/or the opinion of a testifying medical expert for guidance on the issue of whether the medical findings are at least equal in severity and duration to the listing findings. 20 C.F.R. §§ 404.1526(a) and (b), 416.926(a) and (b); Social Security Ruling 96-5p; Deters v. Secretary of Health, Educ. and Welfare, 789 F.2d 1181, 1186 (5^th Cir. 1986). A finding that a claimant meets or equals a listing is dispositive of the case and, therefore, reserved to the Administrative Law Judge. Social Security Ruling 96-5p.

It is well-established that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Layne, 192 F.3d 556, 566 (6th Cir.1999) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997)); see also Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir.1995) (observing that "[w]e consider issues not fully developed and argued to be waived."). Here, Plaintiff disagrees with Finding No. 4. However, Plaintiff has not identified a specific listing in Appendix 1 and explained why he believes the medical evidence shows he meets or medically equals that listing (DN 16, Memorandum at Pages 2-9). Therefore, Plaintiff's first claim is deemed waived.

Next, Plaintiff disagrees with Finding No. 5 which sets forth the ALJ's residual functional capacity assessment (DN 16, Memorandum at Page 1). In Finding No. 5, the ALJ determined that Plaintiff...