Shiveley v. SSA
MEMORANDUM OPINION AND ORDER; 1)Pla's 10 Motion for Summary Judgment is DENIED; 2)Def's 11 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 4/12/2012. (LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
KELLY WAYNE SHIVELEY
MICHAEL ASTRUE, Commissioner
Of Social Security,
Civil Action No.
Plaintiff Kelley Wayne Shiveley seeks review of the
Commissioner’s denial of his application for Supplemental
Security Income and Disability Insurance Benefits.
matter is before the Court upon the parties’ cross-motions
for summary judgment [Record Nos. 10, 11].1
having reviewed the record and being otherwise sufficiently
defendant's motion, and affirm the Commissioner’s decision.
An Administrative Law Judge (ALJ) conducted a hearing
on Shiveley’s application for benefits on March 11, 2011,
and issued a decision denying Shiveley’s claim on April 18,
These are not traditional Rule 56 motions for summary
Rather, it is a procedural device by which the
parties bring the administrative record before the Court.
Commissioner on August 26, 2011, when the Appeals Council
decision that Shiveley now timely appeals.
This matter is
ripe for review and properly before this Court under 42
U.S.C. § 405(g).
This Court will affirm the Commissioner’s decision if
the decision is supported by substantial evidence in the
record. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005). When deciding whether there is substantial
evidence to support the Commissioner’s decision, this Court
McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
This standard of review assumes, of course, that a
aspects of the ALJ’s decision that allegedly lack support
in the record.
Where a claimant has not done so, the Sixth
. . . decline[d] to formulate arguments
on [claimant’s] behalf, or to undertake
an open-ended review of the entirety of
the administrative record to determine
(i) whether it might contain evidence
that arguably is inconsistent with the
Commissioner’s decision, and (ii) if
consideration to the particular points
that [claimant] appears to raise in her
brief on appeal.
Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477,
491 (6th Cir. 2006); see also McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir. 1997) (“[I]ssues adverted to in a
sufficient for a party to mention a possible argument in
the most skeletal way, leaving the court to . . . put flesh
This Court declines to do so, as well.
decision is not supported by substantial evidence because
However, he never identifies what aspect of
his condition was not taken into consideration by the ALJ.
assessment made by the ALJ, the ALJ’s conclusion as to
Shiveley’s inability to do his past relevant work as an
assembler, forklift operator, and shipping and receiving
clerk, and the vocational expert’s opinion based on the
hypothetical which reflects the RFC conclusion reached by
Frankly, the Court is at a loss as to what
considers this issue waived.
See Hollon, 447 F.3d at 491;
McPherson, 125 F.3d at 995-96.
Next, Shiveley asserts, by means of a heading in his
memorandum, that “the ALJ erred in no [sic] giving more
appears to be an argument that the Commissioner’s decision
is not supported by substantial evidence because the ALJ
based his decision, in part, on vocational expert testimony
elicited in response to a hypothetical situation which did
not accurately reflect Shiveley’s limitations with respect
to the use of his hands.1
Rather, he recounts his own testimony about the
psoriasis on his hands and states, without citation to the
record, that he “has complained of hands and arm numbness
for years due to his cervical problems. . .”
He offers no
criticism of the ALJ’s analysis of the impact of Shiveley’s
cervical degenerative disc disease and psoriasis on the use
of his hands.
Instead, he draws the Court’s attention to
The Court had to look at a footnote in which Shiveley states that
“[t]he ALJ asked about occasional use of hands but then discounted his
own hypothetical” in order to even make this assumption.
testimony in response to a hypothetical scenario involving
an individual limited to “occasional use of the dominant
something more, particularly in light of the fact that the
hypothetical scenario involving an individual limited to
“frequent use of the dominant upper extremity for handling
and fingering” and “occasional use of the dominant upper
extremity for forced gripping.”2
Again, the Court declines
to make Plaintiff’s argument for him and will consider this
issue no further.
See Hollon, 447 F.3d at 491; McPherson,
125 F.3d at 995-96.
Having considered the briefs offered in this matter,
the Court concludes that Shiveley has waived any objection
he might have to the decision of the Commissioner since he
has not raised any error in his briefing to this Court.
The decision of the Commissioner will be affirmed and a
separate judgment entered.
Accordingly, IT IS ORDERED:
that the Plaintiff’s Motion for Summary Judgment
[DE 10] is DENIED; and
The ALJ ultimately determined that he could “use the dominant upper
extremity for handling and fingering frequently” and “for forced
that the Defendant’s Motion for Summary Judgment
[DE 11] is GRANTED.
This the 12th day of April, 2012.
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