Shiveley v. SSA
Filing
12
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
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Plaintiff,
v.
MICHAEL ASTRUE, Commissioner
Of Social Security,
Defendant.
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Civil Action No.
2:11-cv-313-JMH
MEMORANDUM OPINION
& ORDER
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Plaintiff Kelley Wayne Shiveley seeks review of the
Commissioner’s denial of his application for Supplemental
Security Income and Disability Insurance Benefits.
This
matter is before the Court upon the parties’ cross-motions
for summary judgment [Record Nos. 10, 11].1
The Court,
having reviewed the record and being otherwise sufficiently
advised,
will
deny
the
plaintiff's
motion,
grant
the
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,
1
These are not traditional Rule 56 motions for summary
judgment.
Rather, it is a procedural device by which the
parties bring the administrative record before the Court.
2011.
The
opinion
became
the
final
decision
of
the
Commissioner on August 26, 2011, when the Appeals Council
declined
to
exhausted
review
his
Smith’s
appeal.
administrative
Having
remedies,
it
decision that Shiveley now timely appeals.
pursued
is
from
and
this
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
does
“not
evidence,
try
or
the
decide
case
de
novo,
questions
of
resolve
conflicts
credibility.”
Bass
in
v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
This standard of review assumes, of course, that a
claimant
has
made
an
argument
and
identified
specific
aspects of the ALJ’s decision that allegedly lack support
in the record.
Where a claimant has not done so, the Sixth
Circuit has:
. . . 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
2
so,
whether
the
Commissioner
sufficiently
accounted
for
this
evidence.
Rather,
we
limit
our
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
perfunctory
developed
manner,
unaccompanied
argumentation,
are
deemed
by
some
waived.
effort
It
is
at
not
sufficient for a party to mention a possible argument in
the most skeletal way, leaving the court to . . . put flesh
on
its
bones.”
(citation
and
quotation
marks
omitted)).
This Court declines to do so, as well.
Shiveley
first
asserts
that
the
Commissioner’s
decision is not supported by substantial evidence because
the
ALJ
did
conditions.”
not
consider
the
“totality
of
[his]
However, he never identifies what aspect of
his condition was not taken into consideration by the ALJ.
Instead,
he
recounts
the
residual
functional
capacity
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
3
the ALJ.
argument
Frankly, the Court is at a loss as to what
Shiveley
wishes
to
considers this issue waived.
make
in
this
regard
and
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
restrictions
to
the
claimant’s
hand
problems.”
This
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
Again,
analysis.
Shiveley
makes
no
effort
at
argument
or
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
the
fact
that
vocational
1
expert
was
asked
to
give
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.
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testimony in response to a hypothetical scenario involving
an individual limited to “occasional use of the dominant
upper
extremity.”
This
is
hardly
an
argument
without
something more, particularly in light of the fact that the
vocational
expert
also
testified
in
response
to
a
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:
(1)
that the Plaintiff’s Motion for Summary Judgment
[DE 10] is DENIED; and
2
The ALJ ultimately determined that he could “use the dominant upper
extremity for handling and fingering frequently” and “for forced
gripping occasionally.”
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(2)
that the Defendant’s Motion for Summary Judgment
[DE 11] is GRANTED.
This the 12th day of April, 2012.
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