Davis v. SSA
MEMORANDUM OPINION & ORDER: 1. Plaintiff Kenneth Earl Davis, Jr.'s Motion for Summary Judgment [Record No. 12 ] is DENIED. 2. Defendant Carolyn W. Colvins Motion for Summary Judgment [Record No. 13 ] is GRANTED. 3. The administrative decision of Administrative Law Judge Tommye C. Mangus will be AFFIRMED by separate Judgment entered this date. Signed by Judge Danny C. Reeves on 11/27/2013.(KJA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
KENNETH EARL DAVIS, JR.,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Civil Action No. 6: 13-36-DCR
*** *** *** ***
This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Kenneth Earl Davis, Jr. (“Davis” or “the Claimant”) and Defendant Carolyn W.
Colvin, Acting Commissioner of Social Security (“the Commissioner”).
Nos. 12, 13] Davis argues that the administrative law judge (“ALJ”) erred in finding that he
is not entitled to a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Insurance (“SSI”) under the Social Security Act (“Act”). He seeks
reversal of the ALJ’s decision and an award of benefits. Alternatively Davis asks the Court
to remand the matter for further consideration of his claim. The Commissioner asserts that
the ALJ’s decision was proper and should be affirmed. For the reasons discussed below, the
Court will grant the Commissioner’s motion and deny the relief sought by Davis.
On September 8, 2010, Davis applied for a period of disability and DIB under Title
II of the Act, and SSI under Title XVI of the Act. [Tr., pp. 160-66, 167-73] He alleged a
disability beginning April 1, 2009. [Tr., p. 160] Davis’ applications were denied initially
and upon reconsideration. [Tr., pp. 17-27] Davis, along with his attorney John Grigsby and
vocational expert (“VE”) Dr. James Miller, appeared before ALJ Tommye C. Mangus on
September 29, 2011, for an administrative hearing. [Tr., p. 17] In a decision dated
December 19, 2011, ALJ Mangus found that Davis was not disabled under sections 216(i),
223(d), or 1614(a)(3)(A) of the Act. [Tr., p. 27]
Davis was fifty-one years old at the time of the ALJ’s decision. [Tr., p. 160] He has
a ninth grade education and has obtained a graduate equivalent degree (“GED”). [Tr.,
pp. 19, 36] Davis previously worked as a shipping and receiving worker, and as a newspaper
delivery person. [Tr., pp. 55-56] His alleged disability stems from anxiety, characterized by
panic attacks, depression, obsessive compulsive disorder (“OCD”), and low back pain. [Tr.,
After reviewing the record and the testimony presented during the administrative
hearing, the ALJ concluded that Davis suffered from a combination of severe impairments,
including: “bipolar disorder with mixed anxiety and depression, anti-social personality
disorder, and a history of alcohol abuse in full sustained remission.”
[Tr., p. 19]
Notwithstanding these impairments, ALJ Mangus found that Davis retained the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels involving:
understanding and remembering simple instructions that require only brief
initial learning periods; the ability to maintain attention and concentration for
simple tasks requiring minimal variations, and do so for 2-hour segments
during an 8-hour day; no more than occasional public contact; and adaptation
to workplace changes that [are] infrequent and gradually introduced.
[Tr., p. 22]
Based on the testimony of VE Miller, the ALJ found that Davis could not perform past
relevant work. [Tr., pp. 25-26] However, after considering his age, education, work
experience, and RFC, she found that Davis could perform other jobs, such as janitor, hand
packer, dishwasher, and hand assembler. [Tr., pp. 26-27] And based on his finding that
Davis could perform other work existing in significant numbers in the national economy, the
ALJ concluded that Davis was not disabled. As a result of this assessment, Davis was denied
a period of disability, DIB, and SSI. [Id.]
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity’ because of a medically determinable physical or mental
impairment of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502
F.3d 532, 539 (6th Cir. 2007). A claimant’s Social Security disability determination is made
by an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. §
404.1520(a)(4)). If the claimant satisfies the first four steps of the process, the burden shifts
to the Commissioner with respect to the fifth step. See Jones v. Comm’r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003).
First, the claimant must demonstrate that he is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that he suffers from a severe impairment or combination of
impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant is not engaged
in substantial gainful employment and has a severe impairment which is expected to last for
at least twelve months and which meets or equals a listed impairment, he will be considered
disabled without regard to age, education, and work experience. 20 C.F.R. §§ 404.1520(d),
416.920(d). Fourth, if the Commissioner cannot make a determination of disability based
on medical evaluations and current work activity and the claimant has a severe impairment,
the Commissioner will then review the claimant’s RFC and relevant past work to determine
whether he can perform his past work.
If he can, he is not disabled.
§§ 404.1520(f), 416.920(f).
Under the fifth step of the analysis, if the claimant’s impairment prevents him from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether he can perform other work. If he cannot perform other
work, the Commissioner will find the claimant disabled. 20 C.F.R. §§ 404.1520(g),
416.920(g). The Commissioner has the burden of proof only on “‘the fifth step, proving that
there is work available in the economy that the claimant can perform.’” White v. Comm’r
of Soc. Sec., 312 F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203
F.3d 388, 391 (6th Cir. 1999)).
Judicial review of the denial of a claim for Social Security benefits is limited to
determining whether the ALJ’s findings are supported by substantial evidence and whether
the correct legal standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007). The substantial-evidence standard presupposes that there is a zone of choice
within which decision makers can go either way, without interference from the court.
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006). Substantial
evidence is such relevant evidence as a reasonable mind might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007).
If supported by substantial evidence, the Commissioner’s decision must be affirmed
even if the Court would decide the case differently and even if the claimant’s position is also
supported by substantial evidence. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007); Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007); Longworth v. Comm’r of Soc.
Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005); Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1233 (6th Cir. 1993). In other words, the Commissioner’s findings are
conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g).
Davis contends that the hypothetical questions presented to VE Miller failed to take
into account his physical symptoms associated with mental impairments and that the
Commissioner’s decision is not based upon substantial evidence.
RFC Determination, Vocational Expert Testimony & Hypothetical
According to Davis, the hypothetical questions posed to VE Miller failed to present
all of his impairments. [Record No. 12-1, pp. 9-11] Specifically, he contends that the ALJ’s
hypothetical questions did not include the physical symptoms that he claims are associated
with his mental impairments.1 Davis asserts that his statements concerning the manifestation
of physical symptoms stemming from his panic attacks and anxiety are well-grounded in
objective medical findings. As a result, he contends that the ALJ’s failure to include any
physical limitations in her RFC determination was erroneous. Davis also argues that,
because the hypothetical questions posed to the VE were deficient, it was improper for the
ALJ to rely on VE Miller’s testimony and it cannot be considered as substantial evidence.
[Id., p. 11]
Davis’ challenge to the ALJ’s reliance on the VE’s testimony is essentially a challenge
to the ALJ’s RFC determination. More specifically, he argues that the ALJ erred in failing
to provide any physical limitations in the RFC, such as “precluding the [C]laimant from jobs
involving climbing and being around machinery or operating machinery.” [Record No. 12-1,
p. 11] The RFC determination is a matter reserved for the ALJ. See 20 C.F.R. §§
404.1527(d), 404.1546(c), 416.927(d), 416.946(c); see also Poe v. Comm’r of Soc. Sec., 342
To the extent Davis argues that the “mental factors posed by the [ALJ] to the [VE] are incomplete,”
he provides no explanation for his position beyond assertions that the ALJ failed to include any physical
limitations associated with his psychological condition. [Record No. 12-1, p. 9] These arguments appear to
be one-in-the-same, and will be treated as such.
F. App’x 149, 157 (6th Cir. 2009); Edwards v. Comm’r of Soc. Sec., 97 F. App’x 567, 569
(6th Cir. 2004). In making this determination, the ALJ considers the medical evidence, nonmedical evidence, and the claimant’s credibility.
See 20 C.F.R. §§ 404.1545(a)(1);
The Sixth Circuit has recognized that “the ALJ is charged with the responsibility of
evaluating the medical evidence and the claimant’s testimony to form an assessment of the
claimant’s residual functional capacity.” Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435,
439 (6th Cir. 2010) (internal quotation marks and citation omitted). The ALJ need not “give
any special significance to the source of an opinion on issues reserved to the Commissioner.”
20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3). An ALJ’s finding on the RFC will be upheld
where it is supported by substantial evidence.
The Claimant relies on the diagnosis of treating physician Syed Raza, M.D., in support
of his claim that he experiences physical limitations connected with his mental ailments.2
The Claimant also cites to the opinion of consultative examiner Timothy L. Baggs, Psy. D., which
he contends supports his claim of the necessity of physical limitations. However, ALJ Mangus reviewed, in
detail, the opinion of Dr. Baggs, affording it moderate weight. [Tr., pp. 20-22, 24-25] Although Dr. Baggs
found that his “[o]bservations . . . tended to provide confirmation for the claimant’s allegations of anxiety
and depression,” he only found Davis’ anxiety to be mild to moderate and his depression to be moderate to
possibly moderately severe. [Tr., p. 379] ALJ Mangus explicitly discussed these findings and the Claimant
has failed to identify how these findings either contradict the ALJ’s final determination or how Dr. Baggs’
opinion was incorrectly considered. More importantly, Dr. Baggs’ opinion and treatment notes do not
identify the manifestation of physical symptoms associated with the Claimant’s mental issues beyond a
recitation of the Claimant’s subjective complaints. In fact, Dr. Baggs’ opinion tends to support the ALJ’s
conclusions rather than the Claimant’s position.
To the extent Davis cites treatment notes from Clover Fork Clinic, an ALJ is not required to cite
every piece of evidence in the record. See Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir.
2006). Regardless, ALJ Mangus indicates throughout her decision that her determination was reached after
considering the entire record. [Tr., p. 22] Additionally, the treatment notes from Clover Fork Clinic consist
of only a patient chart. The credentials of the individual to whom the notes belong is unclear. And, although
Dr. Raza opined that the Claimant suffers from bipolar disorder, alcohol dependence in
remission, and anti-social personality disorder.3 [Record No. 12-1, p. 10; see also Tr., p.
364.] However, on December 1, 2010, Dr. Raza’s examination notes indicate that, while the
Claimant still suffers from anxiety, the prescribed medication was helping to alleviate his
symptoms. [Tr., p. 367; see generally Houston v. Sec’y of Health & Human Servs., 736 F.2d
365, 367 (6th Cir. 1984) (affirming ALJ’s credibility determination where the claimant’s
condition was managed by medication); see also Hardy v. Astrue, No. 5:12CV1836, 2013
U.S. Dist. LEXIS 62942, at *35 (N.D. Ohio May 2, 2013).] Additionally, Dr. Raza stated
that the Claimant was alert and oriented to place, person, and situation, had fair insight and
judgment, and had normal psycho motor activity. [Tr., p. 367] It is Davis’ burden to prove
the severity of his impairments and the “mere diagnosis of [a condition], of course, says
nothing about the severity of the condition.” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.
ALJ Mangus explicitly considered the opinion of Dr. Raza. Dr. Raza’s opinion and
treatment notes do not reference any physical limitations associated with the mental
impairments suffered by the Claimant. [Tr., pp. 19-20, 364-67] Indeed, any mention of
physical limitations in the medical records relied upon by Davis are nothing more than
the notes mention a finding of panic disorder, they state that “I recommended he talk to Dr. Raza about what
sound[ed] like panic attacks.” [Tr., p. 387 (emphasis added)] This statement belies the Claimant’s contention
that he was diagnosed with panic disorder by the Clover Fork Clinic. [Record No. 12-1, p. 10] The ALJ did
not err in the weight given to this evidence.
Davis does not argue that ALJ’s determination violated the treating physician rule. Regardless, ALJ
Mangus properly weighed the opinions of the physicians of record.
summaries of his own subjective descriptions of his physical ailments allegedly
accompanying his panic attacks. [Record No. 12-1, pp. 10-11] And a claimant’s subjective
complaints alone cannot establish the existence of a disability.4
See 42 U.S.C.
§ 423(d)(5)(A); 20 C.F.R. §§ 404.1529(a), 416.929(a); Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)
(“Subjective complaints of pain or other symptoms shall not alone be conclusive evidence
Instead, there must exist some objective medical evidence, established by medically
acceptable clinical or laboratory diagnostic techniques, which demonstrates the existence of
a medical impairment that could reasonably be expected to produce the symptoms alleged
and that, when considered with all the evidence, would lead to a conclusion that the
individual is under a disability. See 42 U.S.C. § 423(d)(5)(A). Here, Davis’ medical records
contain little, if any, objective, physical, or clinical evidence to substantiate his subjective
claims of physical symptoms associated with his mental impairments. And Davis has failed
to direct the Court’s attention to any such evidence concerning his alleged physical
The Sixth Circuit has developed a two-prong test to evaluate a claimant’s subjective allegations:
First, we examine whether there is objective medical evidence of an underlying medical
condition. If there is, we then examine: (1) whether objective medical evidence confirms the
severity of the alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can reasonably be expected to
produce the alleged disabling pain.
Walters, 127 F.3d at 531. The Claimant does not argue that the ALJ impermissibly weighed his subjective
complaints and the Court concludes that no such error was committed.
Notwithstanding the foregoing, the ALJ considered both non-medical and credibility
evidence in determining Davis’ RFC. [Tr., pp. 23-25] The ALJ provided an extensive
analysis of Davis’ credibility and found that, although the Claimant’s medically determinable
impairments could reasonably cause the symptoms alleged, his statements regarding their
“intensity, frequency[,] and limiting effects are not credible” to the extent they are
inconsistent with her RFC assessment. [Tr., pp. 23-24] It is well-settled that credibility
determinations regarding a claimant’s subjective complaints of pain rest with the
Commissioner. See Walters, 127 F.3d at 531. Such determinations are entitled to a great
deference. See Buxton 246 F.3d at 773; see also Boyett v. Apfel, 8 F. App’x 429, 434 (6th
Cir. 2001); Williamson v. Sec’y of Health and Human Servs., 796 F.2d 146, 150 (6th Cir.
1986). This is because the ALJ is in a unique position to “observe the claimant and judge
[his] subjective complaints.” Buxton, 246 F.3d at 773. However, if the ALJ “rejects a
claimant’s testimony as incredible, [s]he must clearly state h[er] reasons for doing so.”
Felisky v. Brown, 35 F.3d 1027, 1036 (6th Cir. 1994).
As indicated above, ALJ Mangus explained her reasons for rejecting Davis’
She specifically noted that, “[c]ontradictory statements, circumstances
surrounding his departure from the workforce, a specious disability onset date, and details
of competent daily, social, and cognitive activities significantly undermine [Davis’]
credibility. In fact, details of his relatively independent existence, residing with his elderly
parents, without required assisted living services [manifestly contradict] his alleged
incapacitation.” [Tr., p. 23; see also Buxton, 246 F.3d at 775 (noting that the claimant’s
ability to shop for herself, do light cleaning, cook, drive, and exercise daily contradicted her
claim that she could not work); Walters, 127 F.3d at 532 (noting that an ALJ may consider
a claimant’s engagement in household and social activities in assessing his assertions of pain
and ailments).] In short, the ALJ did not err in her review of Davis’ credibility and the nonmedical evidence of record in determining the Claimant’s RFC. Further, the ALJ sufficiently
explained her reasoning for the weight given to Davis’ subjective complaints.
The medical evidence of record also supports the ALJ’s RFC determination.
Specifically, the opinions of consultative examiners Bradley E. Wells, M.D., and Timothy
L. Baggs, Psy. D., substantiate this determination. The treatment notes of Dr. Wells from
a physical exam of the Claimant indicate that he exhibited normal gait and range of motion
in his legs, shoulders, and elbows, normal strength, and that “no functional limitations were
identified during the exam.” [Tr., pp. 353-54] Notably, Dr. Wells opined that Davis could
“sit, carry, stoop, crawl, stand/walk for short or long periods, [and] use his upper extremities
as needed without difficulty.” [Tr., p. 354] In December 2010, Dr. Baggs conducted a
psychological assessment of Davis and concluded that he had the ability to understand and
remember simple instructions, had a mild to moderate deficiency in his ability to maintain
sustained concentration and persistence, and could relate to people in work and social
settings. [Tr., pp. 378-79] Dr. Baggs also noted that the Claimant had good personal hygiene
and grooming. [Tr., pp. 375-76]
Davis stated that he was capable of doing household chores such as cooking, cleaning,
and laundry, and was able to drive. [Tr., p. 374] Dr. Baggs found that Davis was oriented
to person, place, and time, that there was no suggestion of mental confusion or disorientation,
and that his intellectual functioning, and insight and personal judgment likely fell in the
average and the average to fairly good ranges, respectively. [Tr., p. 376] Importantly, Dr.
Baggs did not limit Davis’ ability to perform physical work-related activities, but instead
“not[ed] nothing regarding the claimant’s gait, posture, or motor behavior.” [Tr., p. 376; see
Tr., pp. 369-81]
The opinions of state agency physicians Dr. Diosdado Irandez and Edward Stodola,
Ph.D., also support the ALJ’s determination. [See Tr., pp. 96-106.] State agency consultants
are considered experts in the Social Security disability programs and their opinions may be
entitled to great weight if they are supported by the evidence of the record. See 20 C.F.R.
§ 416.927(f)(2); SSR 96-6p, 1996 WL 374180 (July 2, 1996). After reviewing the medical
evidence of record, Dr. Irandez opined that Davis’ condition did not significantly impact his
ability to do work-related activities. [See Tr., pp. 96-106.]
Dr. Stodola determined that Davis had the ability to understand and remember short
and simple instructions, locations and work-like procedures; to make simple work-related
decisions; to maintain socially appropriate behavior; to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes; to sustain an ordinary routine
without special supervision; and to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods. [See Tr., pp. 92-94, 101-05.]
These opinions support the ALJ’s assessment of the Claimant’s limitations.5
Contrary to Davis’ contentions, substantial evidence supports the ALJ’s RFC finding.
After reviewing the evidence of record, including the Claimant’s subjective complaints, the
medical evidence, and the non-medical evidence, ALJ Mangus concluded that Davis had an
RFC to perform a range of work at all exertional levels. Specifically regarding the
assessment of Davis’ physical limitations, ALJ Mangus attributed significant weight to Dr.
Well’s consultative exam and Dr. Irlandez’s case analysis. [Tr., p. 25] The ALJ noted that
both doctor’s opinions contained “variously uniform findings of non[-]severe impairments”
and that the “accordant lack of functional limitations are consistent with the record as a
whole.” [Id.] Additionally, ALJ Mangus noted that the RFC assessment is “supported by
the underwhelming treatment record, Dr. Stodola’s RFC analysis, Dr. Baggs’s consultative
exam — with the exception of a discounted severe limitation against workplace adaptation,
and details of claimant’s daily activities.” [Id.] Substantial evidence supports the ALJ’s
RFC determination and Davis has failed to demonstrate that his alleged panic disorder, even
if it persisted for any length of time, would affect his ability to perform the range of work
outlined by the ALJ.
Although Drs. Stodola and Irandez did not review all the evidence, the ALJ’s review was complete.
And because their opinions are well-supported by the medical findings and are consistent with the record as
a whole, they support the ALJ’s RFC determination. 20 C.F.R. §§ 404.1520(c)(3), (4), (e)(2)(ii);
416.927(c)(3), (4), (e)(2)(ii); see also Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439-40 (6th Cir.
2012). The ALJ also sufficiently explained her reasons for the weight afforded to these opinions. See SSR
96-6p, 1996 WL 374180. ALJ Mangus’ reliance on these opinions was not in error.
Hypothetical Questions and the VE’s Testimony
Davis also argues that ALJ Mangus improperly relied on the VE’s responses to
hypothetical questions that did not account for any physical limitations. [Record No. 12-1,
pp. 9-11] Once it is determined that a claimant cannot perform past relevant work, the
burden shifts to the Commissioner to demonstrate that there are other jobs that exist in
significant numbers in the economy that the Claimant can perform, consistent with his RFC
and other vocational factors (i.e., age, education, and work experience). Cole v. Sec'y of
Health & Human Servs., 820 F.2d 768, 771 (6th Cir. 1987). The ALJ may rely on the VE’s
answer to a hypothetical question to satisfy this burden to the extent the assumptions
included in the hypothetical are supported by substantial evidence. Varley v. Sec'y of Health
& Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
The Sixth Circuit has held that a hypothetical question posed to a VE “need only
reference all of a claimant’s limitations, without reference to the claimant’s medical
conditions.” Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (citing Foster
v. Halter, 279 F.3d 348, 356 (6th Cir. 2001)); see also Blacha v. Sec'y of Health & Human
Servs., 927 F.2d 228, 231 (6th Cir. 1990) (“If the hypothetical question has support in the
record, it need not reflect the claimant’s unsubstantiated complaints.”). The VE’s testimony
relies, in part, on the ALJ’s assessment of what a claimant can or cannot do. See Webb, 368
F.3d at 632-33 (citations omitted). Additionally, the ALJ is permitted to rely on the VE’s
answer to a hypothetical question only to the extent the assumptions included in the
hypothetical are supported by substantial evidence. Varley, 820 F.2d at 779. The VE’s
answers to these questions are substantial evidence “only if the question accurately portrays
[the Claimant’s] individual physical and mental impairments.” Id.
Here, the ALJ’s hypothetical questions captured all of the limitations she included in
her assessment of Davis’ RFC, as well as Davis’ occupational capability. [Tr., pp. 56-57]
And, as outlined above, the ALJ’s RFC determination applied the correct legal standard and
was supported by substantial evidence. The absence of any physical limitations in the
hypothetical questions posed to the VE was not in error because the ALJ concluded that
Davis did not suffer from any physical functional limitations. See Casey, 987 F.2d at 1235
(holding that an “ALJ may pose hypothetical questions to a vocational expert and is required
to incorporate only those limitations accepted as credible by the finder of fact”); see also
Foster, 279 F.3d at 356 (finding that the ALJ did not err in “declining to include limitations”
in hypothetical question to the VE that were “neither explained nor supported by medical or
clinical findings”). Thus, the VE’s testimony constitutes substantial evidence supporting the
ALJ’s conclusion that Davis is not disabled and that he could perform other work that exists
in the national economy. The Claimant’s arguments to the contrary are without merit.
Although the Claimant argues that substantial evidence does not support the ALJ’s
determination, the Court must address the superficial nature of the Claimant’s attorney’s
legal argument on this issue, as well as his perceived misconception of his role as an
advocate for his client compared to that of the Court’s role in adjudicating the dispute. As
indicated above, the standard of review for denial of a claim for Social Security benefits
examines whether the ALJ’s findings are based on substantial evidence. Importantly,
however, this standard is premised upon the supposition that the Claimant actually proffered
some form of argument that is substantiated by the identification of specific aspects of the
ALJ’s decision that allegedly lack support in the record.
Where a claimant has failed to specifically identify alleged error, the Sixth Circuit has:
decline[d] to formulate arguments on [the 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 so, whether the Commissioner sufficiently
accounted for this evidence. Rather, we limit our consideration to the
particular points that [the Claimant] appears to raise in [his] 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 manner, unaccompanied by some effort at developed argumentation, are deemed
waived. It is 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 should not be a novel concept for Davis’ counsel: he has filed nearly two hundred
social security actions with this Court.
In fact, paragraph 3(c) of the Court’s Standing Scheduling Order for Social Security
Actions specifically provides that “[t]he Court will not undertake an open-ended review of
the entirety of the administrative record to find support for the parties’ arguments. . . .
Failure to provide specific citations to the record may constitute ground for denial of the
motion.” (citing Hollon, 447 F.3d at 491) [See Record No. 9, pp. 3-4; see also General
Order 13-7 (E.D. Ky. Oct. 24, 2013) (superseding General Order 09-13).]
Here, after reciting the legal standard applicable to the case, the Claimant’s argument
consists of the following:
[i]t is the contention of the [Claimant] under these standards of review that
there is not substantial evidence to support the denial of his application for
security benefits. The objective medical evidence unequivocally documents
that the [Claimant] has several severe conditions which are disabling.
[Record No. 12-1, pp. 11-12] However, “[t]his challenge warrants little discussion, as
[Davis] has made little effort to develop this argument in [his] brief on appeal, or to identify
any specific aspects of the Commissioner’s determination that lack support in the record.”6
Hollon, 447 F.3d at 490-91.
The Claimant’s memorandum falls woefully short of this Court’s requirements. The
only citation to the record consists of summarized portions of his testimony and limited
excerpts of the medical record (albeit in the “background” section of his motion for summary
judgment). Davis fails to cite to any specific medical opinion or other form of evidence
which the ALJ allegedly impermissibly discounted or which does not comport with the ALJ’s
Notwithstanding the imprecise nature of Davis’ contention, a review of the evidence
of record demonstrates that the ALJ’s decision is supported by substantial evidence. The
Likewise, Davis’ cursory argument that the VE’s testimony is inconsistent with the Dictionary of
Occupational Titles fails for the same reason. [Record No. 12-1, p. 11] Davis does not identify any
inconsistency beyond this blanket assertion, and this perfunctory contention does not warrant further review
from the Court. See Hollon, 447 F.3d at 490-91.
Claimant has failed to demonstrate that he was disabled at any time relevant to the ALJ’s
decision. In fact, the ALJ expressly stated that she carefully considered the entire medical
record, including all medical findings and observations, in reaching her decision. [Tr., p. 22;
see McDonald v. Astrue, No. 11-1263, 2012 WL 2989935, at *7 (10th Cir. July 23, 2012)
(quoting Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (noting the “well-established
principle of taking [the] ALJ at his word when he indicates he considered all of the
evidence”)).] Moreover, as outlined above, ALJ Mangus discussed the findings of Dr. Raza,
consultative examiners Dr. Wells and Dr. Baggs, state agency physicians Dr. Irandez and Dr.
Stodola, along with other medical evidence and non-medical evidence of record, and Davis’
subjective complaints. Again, Davis has failed to identify any opinions that were improperly
considered by the ALJ, or which contradict the ALJ’s determination.
Substantial evidence supports the ALJ’s determination. See Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); see also Rogers, 486 F.3d at 241; Buxton, 246
F.3d at 772 (“[F]indings of the Commissioner are not subject to reversal merely because
there exists in the record substantial evidence to support a different conclusion.”). Having
reviewed the record of this matter, the Court finds no error with the ALJ’s assessment and
analysis of the evidence of record or her determination that the Claimant is not disabled as
defined by the Act.
Although Davis suffers from some medical impairments, he has not established that
he is disabled as defined by the Act. After reviewing the record, the Court does not find any
of the Davis’ arguments persuasive. The ALJ did not commit a reversible error and her
decision is supported by substantial evidence. Accordingly, it is hereby
ORDERED as follows:
Plaintiff Kenneth Earl Davis, Jr.’s Motion for Summary Judgment
[Record No. 12] is DENIED.
Defendant Carolyn W. Colvin’s Motion for Summary Judgment [Record
No. 13] is GRANTED.
The administrative decision of Administrative Law Judge Tommye C. Mangus
will be AFFIRMED by separate Judgment entered this date.
This 27th day of November, 2013.
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