Huskey v. SSA
Filing
14
MEMORANDUM OPINION & ORDER 11 MOTION for Summary Judgment by Albert D. Huskey , 13 MOTION for Summary Judgment by Commissioner of SSA : (1) Plaintiff's Motion for Summary Judgment [R. 11] is DENIED; (2) Defendant's M otion for Summary Judgement [R. 13] is GRANTED; (3) Defendant Commissioner's decision denying Plaintiff's disability claim is AFFIRMED; (4) This matter is DISMISSED and STRICKEN FROM THE COURT'S ACTIVE DOCKET; and (5) Judgment in favor of the Defendant will be ENTERED separately. Signed by Judge Joseph M. Hood on 9/30/19.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
ALBERT D. HUSKEY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
ANDREW SAUL, Commissioner
of Social Security,1
Defendant.
**
**
**
Civil Case No.
6:18-cv-152-JMH
MEMORANDUM OPINION
AND ORDER
**
**
Plaintiff Albert D. Huskey brings this action under 42 U.S.C.
§ 405(g) to challenge Defendant Commissioner’s final decision
denying Plaintiff’s application for Social Security Disability
Insurance Benefits. [DE 2]. The specific matters currently before
the Court include Plaintiff’s Motion for Summary Judgment [DE 11]
and Defendant’s Motion for Summary Judgment [DE 13]. Both matters
are now ripe for decision, and for the reasons discussed below,
Plaintiff’s Motion for Summary Judgment [DE 11] will be denied,
and Defendant’s Motion for Summary Judgment [DE 13] will be
granted. Accordingly, the Court will affirm the Commissioner’s
decision, as it is supported by substantial evidence.
1
On June 17, 2019, Andrew Saul was sworn in as the Commissioner of Social
Security. When this action was filed, Nancy Berryhill was serving as Acting
Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, Commissioner Saul is automatically substituted as a party.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2014, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits, alleging
his disability began on March 28, 2013. [Tr. 109, 288-94]. At the
time of Plaintiff’s alleged disability onset date, he was 46 years
old. [Tr. 110]. Plaintiff completed the ninth (9th) grade, and his
past relevant work was as a repairman in both a furniture factory
and
the
coal
mines.
[Tr.
324].
In
Plaintiff’s
application
materials, he initially alleged he was unable to work due to black
lung and pain in his neck, back, arms, and legs. [Tr. 110, 323].
In June 2008, Plaintiff strained his back moving things, and
an MRI revealed a “right paracentral disc herniation with moderate
stenosis.” [Tr. 420-23]. Following a March 2013 motor vehicle
accident, Plaintiff had a CT scan of his cervical spine, which
showed “signs of degenerative disk disease involving the C5-C6”
with a “mild diffuse bulging annulus.” [Tr. 590]. The CT scan was
accompanied by an x-ray, which showed Plaintiff’s lumbar spine to
be normal. [Tr. 592]. A March 26, 2013, MRI showed “[p]rominent
osteophyte disc complexes . . . at C3-C4 and C-5-C6 slightly
impinging on the thecal sac” and “[n]o definite evidence for disc
protrusion.” [Tr. 596]. On April 1, 2013, James R. Bean, M.D.,
examined Plaintiff and reviewed the March 26, 2013, MRI, finding
that it showed “no evidence of disk herniation” and “a minor bulge
to the left of the C5-C6 which appears to be chronic.” [Tr. 6002
01]. Dr. Bean diagnosed Plaintiff with cervical and lumbar sprains
and recommended physical therapy, so Plaintiff could rehabilitate
and return to work. [Tr. 601]. On May 1, 2013, despite finding
Plaintiff did not qualify for wrist work, hand work or assembly
activities, or shoulder work, Plaintiff’s physical therapist also
found Plaintiff “qualifie[d] for sedentary work for shoulder and
overhead lifts and qualifies for sedentary-light work for 2-handed
carry activities.” [Tr. 639-52]. Between March 5, 2013 and July
11, 2013, Julie A. Jackson, APRN, and other healthcare providers
at
Harlan
Appalachian
Regional
Healthcare
(“ARH”),
treated
Plaintiff’s physical complaints with opioid medication. [Tr. 727,
732, 738-739, 883, 897, 902, 930].
On July 28, 2014, Plaintiff was in a four-wheeler accident
and fractured his right lateral tibia plateau. [Tr. 954-55]. To
correct the fracture, Plaintiff had an open reduction and internal
fixation. [Tr. 956-57].
On
September
16,
2014,
at
the
behest
of
the
Kentucky
Department for Disability Determination, Kathleen M. Monderewicz,
M.D., conducted a consultative examination of Plaintiff. [Tr.
1156-65]. At the time of Dr. Monderewicz’s examination, Plaintiff
was still recovering from his fractured tibia, which occurred only
seven (7) weeks prior. [Tr. 1159]. Dr. Monderewicz noted the
following about Plaintiff: “no dyspnea with exertion . . . is noted
during ambulation to the exam room or with effort of talking
3
dressing/undressing and ROM performance;” “ambulates using two
crutches with limping and partial weight bearing on the right lower
extremity;”
“appears
uncomfortable
in
the
sitting
and
supine
position as well as lying down and rising from the exam table;”
“has difficulty stepping up and down from the exam table;” and
“[t]o get up on the exam table he slides onto the table without
using a step stool and he steps down bearing weight onto the left
lower
extremity
without
using
crutches.”
[Tr.
1160].
Dr.
Monderewicz further noted, “Since the fracture does not appear to
be a maximum medical improvement, [t]he claimant would need to be
reassessed later for any chronic changes in the right leg and
knee.” [Tr. 1163].
Dr.
Monderewicz
diagnosed
Plaintiff
with
the
following:
“[c]hronic neck pain with history of radicular symptoms of both
upper extremities;” “[d]eep tendon reflex finding in the right
upper extremity;” “motor weakness in the left upper extremity
suggested radiculopathy involving the C5-C7 nerve root levels
corresponding
to
“[o]steoarthrosis
degenerative
the
of
changes
area
the
of
of
hands;”
the
left
cervical
spine
tenderness;”
“[t]here
may
also
acromial
clavicular
be
mild
joint;”
“[c]hronic thoracic spine pain;” “[c]hronic low back pain with
history of radicular symptoms to both lower extremities;” and
“[h]istory of co[al] workers pneumoconiosis and tobacco use.” [Tr.
1162-63].
Dr.
Monderewicz
noted,
4
“Straight
leg
raising
was
positive; right leg more than left. However, absence of the right
patellar deep tendon reflex may be due to decrease [sic] sensation
over the right knee and leg following surgery for fracture.” [Tr.
1163]. With Plaintiff still in a recovering state, Dr. Monderewicz
opined, “Currently the claimant is unable to squat, kneel, or crawl
on the right knee. The claimant can currently not climb ladders or
engage in unprotected height.” [Tr. 1163]. Dr. Monderewicz further
opined
that
prolonged
siting,
standing,
walking,
bending,
stooping, squatting, and heavy lifting and carrying were limited
by Plaintiff’s chronic back pain, and Plaintiff’s use of his upper
extremities for overhead reaching and pushing and pulling were
limited by his neck and back pain. [Tr. 1163]. However, Dr.
Monderewicz
noted
that
Plaintiff’s
grip
strength
and
fine
manipulation were normal bilaterally. [Tr. 1163].
An October 20, 2014, x-ray of Plaintiff’s lumbar spine showed
normal findings. [Tr. 1168]. An October 21, 2014, x-ray of the
cervical spine showed mild degenerative changes and narrowing of
the neural foramina at C5-C6. [Tr. 1169]. On November 3, 2014, Dr.
Bean reviewed Plaintiff’s x-rays of the cervical spine and lumbar
spine and opined that Plaintiff’s lumbar spine was normal, his
cervical spine showed “mild narrowing at C5-C6,” his radiographic
findings were “quite minor,” and Dr. Bean saw “no radiologic reason
to assess a permanent impairment.” [TR. 1203].
5
On December 10, 2014, Plaintiff visited his tibia surgeon,
who reported Plaintiff was “doing very well” and “able to ambulate
and
walk
Plaintiff
without
major
stated
that
restrictions.”
he
was
unable
[TR.
to
run
1211-12].
or
do
While
increased
activities and complained of pain of the anterior aspect of the
knee and sensation of crepitus, he was found to have a normal range
of motion and no instability. [Tr. 1211-12]. On January 20, 2015,
Plaintiff’s physical therapist noted that Plaintiff ambulated
throughout the clinic without an assistive device and had a “[v]ery
mild” antalgic gait. [Tr. 1219-20]. On November 12, 2015, Plaintiff
presented to Julie A. Jackson, ARNP, that he had “chronic low back
pain,
mid
back
pain,
neck
pain,
bilateral
upper
extremity
paresthesias, and bilateral lower extremity parasthesias.” [Tr.
1323].
On January 14, 2015, H. Thompson Prout, Ph.D., a state agency
psychological consultant, provided on an opinion on Plaintiff’s
medically determinable impairments and found Plaintiff’s affective
disorders
were
Additionally,
not
Dr.
severe
Prout
mental
opined
impairments.
that
Plaintiff’s
[Tr.
129].
affective
disorders did not restrict him in his activities of daily living
and
only
caused
mild
difficulties
in
maintaining
social
functioning, concentration, persistence, and pace. [Tr. 129].
On January 15, 2015, Diosado Irlandez, M.D., a state agency
medical consultant, provided an opinion on Plaintiff’s Residual
6
Functional Capacity (“RFC”). [Tr. 131-33]. Dr. Irlandez found that
due to Plaintiff’s S/P ORIF of the right knee and tibia fracture
and
low
back
limitations:
pain,
Plaintiff
occasionally
had
lift
or
the
carry
following
twenty
exertional
(20)
pounds;
frequently lift or carry ten (10) pounds; sit, stand, or walk six
(6) hours in an eight (8) hour workday; and push or pull limited
in lower extremities, right. [Tr. 131]. Dr. Irlandez also found
that due to Plaintiff’s S/P ORIF of the right knee and tibia
fracture and low back pain, Plaintiff could: occasionally climb
ramps or stairs; never climb ladders, ropes, or scaffolds; and
occasionally stoop, kneel, crouch, or crawl. [Tr. 105, 123]. Dr.
Irlandez further found that due to Plaintiff’s low back pain and
pneumonconiosis, Plaintiff should avoid concentrated exposure to
vibration, concentrated exposure to hazards, such as machinery and
heights, and concentrated exposure to fumes, odors, dusts, gases,
and poor ventilation. [Tr. 105, 123].
A May 16, 2017, cervical spine AP showed disc disease at C5C6 with narrowing of the disc space and degenerative changes at C5-C6 and C6-C7 with small anterior osteophyte. [Tr. 1445]. On June
16, 2017, during an appointment at Mountain Comprehensive Health,
Plaintiff presented walking with a cane and was prescribed a new
cane. [Tr. 1434]. On June 28, 2017, Plaintiff visited Kentucky
Orthopedic Clinic and was reported to: walk with a cane; have a
non-antalgic gait; have limited mobility and tenderness in his
7
back; reduced strength in his left hip flexor and right quadriceps;
and positive straight leg raise bilaterally. [Tr. 1450]. A July
19, 2017, MRI found, “Mild degenerative changes are present. At
L3-4 and L4-5, mild disc bulges and mild facet hypertrophy result
in mild narrowing of the neural foramina and thecal sac. There is
no disc herniation, significant central spinal stenosis or nerve
root compression at any level.” [Tr. 1454].
Plaintiff’s disability claims were denied both initially and
on reconsideration. [Tr. 109, 136]. After a January 8, 2016,
hearing, [Tr. 70-108], on February 4, 2016, an Administrative Law
Judge
(“ALJ”)
reviewed
the
evidence
of
record
and
denied
Plaintiff’s application. [Tr. 137-54]. However, on April 11, 2017,
the Appeals Council vacated the ALJ’s February 4, 2016, decision
[Tr. 137-54] and remanded this case for further consideration of
Plaintiff’s maximum residual functional capacity (“RFC”), the
medical opinion evidence, and the vocational evidence. [Tr. 15559]. On September 7, 2017, the ALJ held a second hearing, [Tr. 3069]. As will be discussed further herein, Plaintiff testified at
the second hearing. [Tr. 35-64].
In addition to Plaintiff, vocational expert (“VE”) William
Ellis
testified.
hypothetical
[Tr.
person
of
64-68].
VE
Plaintiff’s
Ellis
age,
testified
with
that
a
Plaintiff’s
education, work experience, and limitations, could not perform
Plaintiff’s past relevant work as a repairman, a medium, skilled
8
occupation, as classified by the Dictionary of Occupational Titles
(“DOT”),
but
very
heavy
as
actually
performed.
[Tr.
64-65].
However, VE Ellis also testified that a person such as Plaintiff
could perform light exertional work as a ticket taker, parking lot
attendant, and mail clerk, and VE Ellis clarified, “That’s a
representative and not an exhaustive list and the region is the
state of Kentucky.” [Tr. 65]. VE Ellis further testified that if
the hypothetical person required the ability to alternate between
sit and stand every thirty (30) minutes, they would still be able
to perform the previously mentioned jobs, but “[t]hey would be
reduced
by
50
percent.”
[Tr.
65].
Responding
to
a
final
hypothetical question, VE Ellis testified that if such a person,
as previously described, required three (3) additional ten (10)
minute unscheduled breaks each day, “[i]t would eliminate those
jobs plus all jobs.” [Tr. 66]. While VE Ellis cited the DOT at
times,
VE
Ellis’s
testimony
deviated
from
the
DOT
“at
the
exertional level and that was due to the claimant’s testimony
and/or the information [he] received concerning [the claimant’s]
work history.” [Tr. 64-65]. VE Ellis also testified his answers
regarding Plaintiff sitting and standing and breaks were not
supported by the DOT because “[t]he sit stand option is not in the
DOT so it would actually come from my observations and surveys
I’ve done,” and “[t]he breaks aren’t in the DOT, so, again, it’s
per observation of work.” [Tr. 65-66].
9
After the second hearing, on January 4, 2018, the ALJ reviewed
the evidence of record and denied Plaintiff’s application. [Tr. 829]. In denying Plaintiff’s application, the ALJ found Plaintiff
had
the
following
severe
impairments:
“cervical
and
lumbar
degenerative disc disease, history of tibial fracture status post
open
reduction
internal
fixation,
black
lung
disease,
osteoarthritis of the hands and left shoulder, obesity.” [Tr. 14
(citing
20
C.F.R.
§§
404.1520(c)].
Despite
the
ALJ
finding
Plaintiff had multiple severe impairments, the ALJ also found
Plaintiff had the RFC to perform light work, as defined in 20
C.F.R. §§ 404.1567(b), with the following physical limitations:
occasional pushing and pulling with the right lower extremity;
occasional climbing of ramps and stairs; no climbing of ropes,
ladders, or scaffolds; occasional stooping, kneeling, crouching,
and crawling; frequent exposure to vibration; occasional exposure
to fumes, odors, dusts, gases, and poor ventilation; and frequent
exposure to unprotected heights or dangerous moving machinery.
[Tr. 18].
The ALJ, accepting the vocational expert’s testimony, found
Plaintiff was unable to perform his past relevant work as a
repairman, which is classified by the DOT as a medium, skilled
occupation, but very heavy as actually performed. [Tr. 21-22].
However, again accepting the vocational expert’s testimony, the
ALJ determined there are other jobs Plaintiff could perform in the
10
national economy, such as ticket taker, parking lot attendant, and
mail clerk, which are classified as light work, and Plaintiff was,
therefore, found to not be disabled. [Tr. 22-23]. On April 27,
2018, the Appeals Council denied Plaintiff’s request for review of
the ALJ’s January 4, 2018, decision [Tr. 8-29], which rendered the
decision [Tr. 8-29] final. [Tr. 1-5].
Having exhausted his administrative remedies, on May 21,
2018, pursuant to 42 U.S.C. § 405(g), Plaintiff sought review
through an action in this Court. [DE 2]. On August 22, 2018,
Defendant filed an Answer [DE 9] contending, “Paragraph 6 of
Plaintiff’s
responsive
Complaint
pleading
states
is
a
legal
required,”
and
conclusion
to
“Plaintiff’s
which
no
Complaint
represents a Prayer for Relief to which no responsive pleading is
required.” [DE 9, at 2]. To the extent that the Court deems a
response to Paragraph 6 of the Complaint [DE 2] necessary or the
Prayer for Relief is deemed to allege facts to which a response is
required, the Defendant denies Paragraph 6 and the allegations.
Id. Pursuant to the Court’s August 22, 2018, Standing Scheduling
Order [DE 10], Plaintiff was directed to “move for summary judgment
or judgment on the pleadings within sixty (60) days.” [DE 10, at
2].
As will be discussed further herein, on October 22, 2018,
Plaintiff filed the present Motion for Summary Judgment [DE 11],
with an accompanying Memorandum in Support [DE 11-1], arguing, in
11
summary, that the ALJ erred by failing to support his determination
that Plaintiff was not disabled with substantial evidence, to
follow the directives of the Appeals Council, and to properly
evaluate Plaintiff’s subjective complaints of pain. [DE 11-1, at
2]. Responding to Plaintiff’s Motion for Summary Judgment [DE 11],
on November 20, 2018, Defendant filed a Motion for Summary Judgment
[DE 13] contending the ALJ’s January 4, 2018, decision [Tr. 8-29]
should be affirmed because the ALJ’s decision [Tr. 8-29] was
supported by substantial evidence, and Plaintiff’s subjective
complaints were not supported by the record. [DE 13, at 9-15].
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a reviewing court “must affirm
the Commissioner’s conclusions absent a determination that the
Commissioner has failed to apply the correct legal standard or has
made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th
Cir. 2005) (citations omitted). The scope of judicial review is
limited to the record itself, and the reviewing court “may not try
the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Hogg v. Sullivan, 987 F.2d 328, 331
(6th Cir. 1993) (citations omitted).
The Sixth Circuit has held that “substantial evidence exists
when a reasonable mind might accept the relevant evidence as
adequate to support a conclusion.” Warner v. Comm’r of Soc. Sec.,
12
375 F.3d 387, 390 (6th Cir. 2004) (citations omitted). The limited
nature of substantial evidence review prevents the reviewing court
from substituting its judgment for that of the ALJ. Rather, so
long as substantial evidence exists, the reviewing court should
affirm the ALJ’s decision “even if there is substantial evidence
in the record that would have supported an opposite conclusion.”
Longworth,
402
F.3d
at
595
(citations
omitted).
Substantial
evidence is “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Rogers v. Comm’r
of
Soc.
Sec.,
486
F.3d
234,
241
(6th
Cir.
2007)
(citations
omitted).
“In determining whether the Secretary's factual findings are
supported by substantial evidence, [the Court] must examine the
evidence in the record ‘taken as a whole . . . .’” Wyatt v.
Secretary of Health and Human Services, 974 F.2d 680, 683 (6th
Cir. 1992) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir.
1980)). Additionally, the Court “‘must take into account whatever
in the record fairly detracts from its weight.’” Wyatt, 974 F.3d
at 683 (citing Beavers v. Secretary of Health, Educ. & Welfare,
577 F.2d 383, 387 (6th Cir. 1978). “The substantial evidence
standard presupposes that there is a ‘zone of choice’ within which
the
[Commissioner]
may
proceed
without
interference
from
the
courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)
13
(citations omitted). “If the Secretary’s findings are supported by
substantial evidence, then we must affirm the Secretary’s decision
even though as triers of fact we might have arrived at a different
result.” Elkins v. Secretary of Health & Human Services, 658 F.2d
437, 439 (6th Cir. 1981).
III. DISCUSSION
Under the Social Security Act, the term “disability” means an
“inability 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 12 months
.
.
.
.”
42
U.S.C.
§
423(d)(1)(A).
A
five-step
sequential
evaluation process is used to determine whether a claimant is
disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. In summary,
the five-step sequential evaluation process is as follows:
The first step is to determine whether the claimant is
engaged in significant gainful activity. 20 C.F.R. §
416.920(b). If not, the second step is to determine
whether the claimant has a severe impairment, which is
“any impairment or combination of impairments which
significantly limits your physical or mental ability to
do basic work activities.” § 416.920(c). If there is a
severe impairment, the third step is to determine
whether the impairment meets or exceeds the criteria of
one of the listed impairments in Appendix 1. §
416.920(d). If the claimant does not satisfy one of the
listings, the [fourth step] is to determine whether the
claimant's impairment prevents him from performing his
past relevant work. § 416.920(e). If it does not, the
claimant is found not disabled. [At the fifth step,]
[i]f the impairment prevents a return to former work,
the claimant's residual functional capacity must be
14
determined, id., and it is then considered in
conjunction with the claimant's age, work experience and
education in order to ascertain whether the impairment
or combination of impairments prevents the claimant from
doing other work. § 416.920(f); see also Subpart P,
Appendix 2, Tables 1–3.
Williamson v. Secretary of Health and Human Services, 796 F.2d
146, 149 (6th Cir. 1986); see also 20 C.F.R. § 404.1520; 20 C.F.R.
§ 416.920.
The claimant “bear[s] the burden at step one of showing that
he is not working, at step two that he has a medically severe
impairment or combination of impairments, and at step four that
the impairment prevents him from performing his past work.” Bowen
v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). “[T]he Secretary bears
the burden of proof at step five, which determines whether the
claimant
is
able
to
perform
work
available
in
the
national
economy.” Id.
Since the Parties’ cross Motions for Summary Judgment [DE 11;
DE 13] concern the same facts, the Court will consider the Parties’
Motions [DE 11; DE 13] together. The issues presently before the
Court are whether the ALJ erred by failing to support his finding
that Plaintiff was not disabled with substantial evidence or by
failing to properly evaluate Plaintiff’s subjective complaints of
pain. [DE 11-1, at 2].
15
A. WHETHER THE ALJ’S DECISION IS SUPPORTED BY SUBSTIANTIAL
EVIDENCE AND RESPONSIVE TO THE APPEALS COUNCIL’S DIRECTIVES
Federal
regulations
provide
that
the
Social
Security
Administration (“SSA”) makes disability determinations based on
“all
the
evidence
in
[the]
case
record.”
20
C.F.R.
§
404.1520(a)(3). Furthermore, the SSA is to “always consider the
medical opinions in [the] case record together with the rest of
the relevant evidence [they] receive.” 20 C.F.R. § 404.1527(b).
“In evaluating the intensity and persistence of [a claimant’s]
symptoms, [the SSA] consider[s] all of the available evidence from
[a claimant’s] medical sources and nonmedical sources about how [a
claimant’s] symptoms affect [them].” 20 C.F.R. § 404.1529(c)(1).
In the present case, Plaintiff argues, “When the record in
the case is considered in its entirety, the combined effects of
Plaintiff’s
physical
impairments,
reflect
that
he
could
not
perform a wide range of even sedentary work on a regular and
sustained basis. [DE 11-1, at 16]; see also Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (“But the ALJ does
not contend, and the record does not suggest, that Gayheart could
do any of these activities on a sustained basis, which is how the
functional
limitations
of
mental
impairments
are
to
be
assessed.”). “[A] denial of benefits based upon an ALJ's improper
calculation
of
a
claimant's
residual
functional
capacity,
a
description of what the claimant ‘can and cannot do,’ must be
16
reversed.” Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 631 (6th
Cir. 2004) (quoting Howard v. Comm’r. of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002)).
Here, Plaintiff asserts the April 11, 2017, Appeals Council
vacated the ALJ’s February 4, 2016, decision [Tr. 137-54], remanded
this case, and directed the ALJ to do the following:
[E]valuate Plaintiff’s alleged symptoms and provide
rationale in accordance with the disability regulations;
to give further consideration to Plaintiff’s maximum
[RFC] and provide appropriate rationale with specific
references; and to obtain additional evidence from a
vocation expert if necessary and give the Plaintiff the
opportunity for a Hearing on the matter.
[DE 11-1, at 17 (citing Tr. 155-57])]. Plaintiff argues the ALJ
failed to do as directed. The Court disagrees.
Plaintiff
acknowledges
that
he
suffers
from
the
severe
impairments found by the ALJ. [DE 11-1, at 17]. As previously
mentioned,
the
impairments:
ALJ
found
“cervical
and
Plaintiff
lumbar
had
the
following
degenerative
disc
severe
disease,
history of tibial fracture status post open reduction internal
fixation, black lung disease, osteoarthritis of the hands and left
shoulder, obesity.” [Tr. 14 (citing 20 C.F.R. §§ 404.1520(c)].
However, Plaintiff argues, “The ALJ . . . completely discounted
Plaintiff’s allegations in regard to his heart and also in regard
to his carpal tunnel syndrome in his hands and also completely
ignored
the
psychological
impairments
which
uncontradicted in the record.” [DE 11-1, at 17].
17
are
completely
Plaintiff asserts that he was diagnosed by Cumberland River
Comprehensive Care Center as suffering from a Major Depressive
Disorder and placed on an Adult Treatment Plan, which included
prescription medication. Id. (citing [Tr. 1300-73]). Plaintiff
posits, “[T]he ALJ has discounted these serious impairments and
also not given any weight or credibility to the restrictions these
conditions have on his ability to perform daily activities.” Id.
at 17-18. Plaintiff further asserts, “The ALJ on his RFC did not
find any type of psychological conditions even to the point of
performing simple, detailed or complication instructions or his
ability to be around supervisors, co-workers, or friends.” Id. at
18. Additionally, Plaintiff argues that the ALJ should have given
more weight to the May 1, 2013, physical therapist’s functional
capacity exam, which found the following:
Plaintiff did not qualify for any hand or assembly type
activities, did not qualify for wrist work, qualified
for only infrequent elbow work, does not qualify for
shoulder (reaching) work, qualifies for infrequent neck
movement work, does not qualify for forward bending
work, and does not qualify for any type of squatting
activities.
Id. (citing [Tr. 649-52]). Plaintiff posits that the ALJ erred by
failing to “recognize or even address [the May 1, 2013,] functional
capacity evaluation and this is completely unfounded and is not
supported by the record. It is clear the Plaintiff suffers from a
number of physical and mental problems that have not been addressed
by the findings of the ALJ.” Id. Lastly, Plaintiff alleges, “[T]he
18
ALJ further failed to address the fact the Plaintiff suffered from
a significant knee injury in these [RFCs],” and Plaintiff claims
that the ALJ’s failure to find there is a significant limitation
on Plaintiff’s ability to sit, stand, or walk “is completely . .
. unsupported by the record in this claim.” Id. at 18-19.
In
his
January
4,
2018,
decision,
the
ALJ
evaluated
Plaintiff’s objective medical evidence and discussed the medical
records from Plaintiff’s alleged onset date to the date of the
decision. [Tr. 14-17, 18-21]. Additionally, the ALJ reiterated the
Appeals Council’s directions for him to follow on remand and stated
that he “complied with these directions.” [Tr. 11]. Specifically,
the ALJ noted that he did the following:
[A]s required by the Order, the undersigned has
considered the claimant’s impairment of black lung, and
the resulting limitations which are discussed in detail
below. The undersigned has also not relied upon evidence
not in the file regarding the claimant’s alleged ability
to care for animals. The undersigned took testimony at
the hearing indicating the claimant lives with his wife
and child, and does not care for animals. This resolves
the issue of the prior ALJ relying on erroneous evidence
in the prior hearing decision.
[Tr. 11]. The ALJ further noted, “As for the claimant’s black lung
disease,
one
image
apparently
showed
changes
consistent
with
pneumoconiosis,” but “the claimant admits he takes no medication
for
breathing
issues,
and
the
medical
records
show
minimal
treatment.” [Tr. 15 (citing [Tr. 948-50])]; see also [Tr. 84].
Additionally, the ALJ cites Dr. Monderewicz’s finding that “the
19
claimant had no dyspnea on exertion, but reported shortness of
breath with prolonged activity.” [Tr. 15 (citing [Tr. 1156-65])].
Defendant correctly asserts the following:
[T]he ALJ also reasonably considered Plaintiff’s
significant activities of daily living including
breaking his tibia when was involved in an accident while
riding a four-wheeler in July 2014 (subsequent to his
March 2013 alleged disability onset), in justifiably
finding that Plaintiff retained the functional capacity
to perform the reduced requirements of light exertion
work activities.
[DE 13, at 10 (citing [Tr. 15, 945-54, 1211-12])]; see also Cruse
v. Comm’r of Soc. Sec., 502 F.3d 532, 543 (6th Cir. 2007) (finding
it is appropriate for an ALJ to consider the claimant’s daily
activities when making a credibility determination); Walters v.
Comm’r
of
Soc.
Sec.,
127
F.3d
525,
531
(6th
Cir.
1997)
(“Discounting credibility to a certain degree is appropriate where
an ALJ finds contradictions among medical reports, claimant's
testimony, and other evidence.”); 20 C.F.R. § 404.1529(c)(4).
Plaintiff’s arguments that the ALJ “completely discounted”
Plaintiff’s allegations regarding his heart and alleged carpal
tunnel
syndrome
and
“completely
ignored
the
psychological
impairments which are completely uncontradicted in the record” are
unsupported
by
the
record.
[DE
11-1,
at
17].
The
ALJ
found
Plaintiff’s alleged heart blockage and carpal tunnel syndrome were
not
medically
determinable
impairments.
[Tr.
17].
The
ALJ
correctly asserts, “The claimant’s most current treatment records
20
from his primary care provider document no cardiac issues or
symptoms
whatsoever,”
and
“[t]here
is
no
documentation
of
treatment with a cardiologist.” [Tr. 17 (citing [Tr. 1434-45])].
Regarding Plaintiff’s alleged carpal tunnel syndrome, the ALJ
found, “[There is no EMG/NCV evidence documenting carpal tunnel
syndrome or cervical radiculopathy. Current primary care records
document no complaints of dropping things or numbness and tingling
in the hands.” [Tr. 17 (citing 1432-1446)]. The ALJ continued,
“While records from the claimant’s treatment at a pain clinic in
November 2015 show complaints of paresthesia, he has not mentioned
such
symptoms
to
current
providers,
and
no
tests
have
been
performed to support such a diagnosis.” [Tr. 17]; see also [Tr.
1321-29]. Moreover, during Plaintiff’s January 8, 2016, testimony,
he did not remember having his hands x-rayed or who diagnosed his
carpal tunnel syndrome. [Tr. 98-100].
Regarding Plaintiff’s mental impairments of depression and
anxiety, the ALJ determined Plaintiff was no more than mildly
limited. [Tr. 16]. The ALJ acknowledged that in 2013, Plaintiff
received treatment and medication for his mental impairments. [Tr.
16 (citing [Tr. 719-749])]. However, the ALJ found Plaintiff’s
counseling records from February and July 2016 “[did] not support
more than mild limitation in any mental functional area,” and
“[c]urrent
primary
care
records
do
not
document
psychiatric
symptoms, indicating no anxiety, depression or insomnia.” [Tr. 16
21
(citing [Tr. 1330-73, 1432-1446])]. Also, the ALJ gave great weight
to the assessment of state agency psychological consultant Dr.
Prout, who found Plaintiff did not have a severe mental impairment.
[Tr. 21 (citing [Tr. 122-135])].
Finally, turning to Plaintiff’s claims that the ALJ failed to
address both the findings of Plaintiff’s May 1, 2013, physical
therapist’s
examination
[Tr.
639-52]
and
Plaintiff’s
alleged
limitations caused by his knee injury, insofar as they pertain to
Plaintiff’s ability to sit, stand, or walk, the Court finds
Plaintiff’s arguments to lack merit. Not only did the ALJ address
the physical therapist’s May 1, 2014, findings, the ALJ gave them
little
weight
because
“[t]he
opinion
is
not
offered
by
an
acceptable medical source, and relies far too heavily on the
claimant’s subjective complaints of pain with all maneuvers” and
“g[ave] no weight to the 96% impairment assessed by the claimant’s
physical therapist for the same reason.” [Tr. 20-21]. The ALJ
explained, “The claimant’s subjective complaints are entirely
inconsistent with his mild imaging studies.” [Tr. 21]. As will be
discussed further herein, the ALJ is correct that Plaintiff’s
subjective complaints are inconsistent with the imaging studies.
Accordingly, it was appropriate for the ALJ to discount the
physical therapist’s May 1, 2013, findings.
Like the physical therapist’s examination, the ALJ thoroughly
addressed
both
Plaintiff’s
knee
22
injury
and
its
effects
on
Plaintiff’s ability to sit, stand, and walk throughout his decision
[Tr. 8-29]. [Tr. 20-23]. Contrary to Plaintiff’s argument, the
ALJ’s finding that Plaintiff was not significantly limited in his
ability
to
evidence.
sit,
stand,
Specifically,
or
walk
the
ALJ
is
supported
supported
his
by
substantial
opinion,
with
citations to evidence in the record, by stating:
By December[] 2014, the claimant was able to ambulate
without major restrictions, although he was not able to
run or do increased activities. He still experienced
pain and crepitus, but had a normal range of motion and
no instability. Physical therapy records after that
injury show the claimant had a very mild antalgic gait,
and was able to ambulate throughout the clinic without
an assistive device. He had some reduced strength.
[Tr. 20 (internal citations omitted) (citing [Tr. 1209-16, 121733])]. Despite Plaintiff sometimes using a cane, in addition to
the evidence cited to by the ALJ, other medical evidence previously
described herein supports the ALJ’s decision. See [Tr. 105, 123,
131-33, 1434, 1450]. Having reviewed the evidence cited to by the
ALJ, and the whole record, the Court finds there is substantial
evidence to support the ALJ’s decision [Tr. 8-29].
B. WHETHER THE ALJ PROPERLY EVALUATED PLAINTIFF’S SUBJECTIVE
COMPLAINTS OF PAIN
Plaintiff also argues the ALJ failed to properly evaluate his
subjective complaints of pain. [DE 11-1, at 19-21]. During the
January 8, 2016, hearing [Tr. 70-108], Plaintiff testified to the
following: he is right-handed, [Tr. 76]; he had an unrestricted
driver’s license, [Tr. 77]; he completed the ninth grade and does
23
not have a GED, [Tr. 77]; his past work involved heavy lifting,
and he stopped in 2013 due to problems with his neck and breathing,
[Tr. 78-82]; his neck pain was “pretty much constant,” and the
pain was brought on by moving his neck “a certain way,” [Tr. 8283]; his neck pain “goes through [his] shoulders and shoots pains
down [his] arms,” [Tr. 83]; some of his medications helped his
neck pain for “maybe an hour or two hours,” [Tr. 83-84]; he was
neither getting treatment for black lung disease nor using an
inhaler or breathing device to treat it, [Tr. 84]; he hadn’t used
an inhaler in about a year because he had not been back to the
doctor to get one, [Tr. 84]; he hurt his neck in a car accident,
[Tr. 84]; walking, going up stairs, bending over, and hot weather
made
him
congested,
short
[Tr.
of
breath,
85];
he
[Tr.
85];
fractured
humidity
his
right
made
leg
him
when
more
he
accidentally flipped his four-wheeler, [Tr. 85-86]; his right leg
was doing “fair,” but it still had pain that was “pretty much
constant,” [Tr. 86]; he had no treatment for his right leg other
than physical therapy and surgery, [Tr. 87]; he last smoked
marijuana two (2) to three (3) months prior to the hearing and
smoked it once a year, [Tr. 87]; he smoked one pack of cigarettes
a day, [Tr. 88]; he said he had a cane, and Julie Jackson, APRN,
recommended he use one, [Tr. 88-89]; he could only stand for thirty
(30) minutes before sitting down and resting, [Tr. 89]; he used
his cane when his back was “bad off” or “severely bad,” [Tr. 89];
24
his back pain was “all the way up,” [Tr. 89]; when using his cane,
he could walk the length of a football field, [Tr. 91]; without
his cane, he could walk twenty-five (25) yards before having to
stop, [Tr. 91]; he could sit for approximately fifteen (15) minutes
before needing to stand up, [Tr. 91]; he could lift or carry ten
(10) pounds, [Tr. 91]; he did not cook, clean, do yard work, or
help with the vacuuming and laundry, [Tr. 92-93]; he went to the
grocery store and other stores with his wife and attended church
about six (6) times a year, [Tr. 93-94]; his hobbies included
putting model airplanes and cars together, and he attended some of
his son’s football games, [Tr. 94-95]; he had not been on a fourwheeler since his accident in July 2014, but he did have a
motorcycle the year prior to the hearing, [Tr. 95-96]; pain from
his hips to his neck was also present, [Tr. 96]; if he experienced
pain from standing too long, he would sit in a recliner and lay
down for approximately thirty (30) minutes at a time, which
occurred four (4) to five (5) times a day, [Tr. 96-97]; and he had
difficulty picking up or handling things, including small items,
because they would cause pain to up through his fingernails and
into his arms, but he did not remember having his hands or
shoulders x-rayed or who diagnosed his carpal tunnel, [Tr. 98100].
During the September 7, 2017, hearing [Tr. 30-69], Plaintiff
testified to the following: he could not drive for a long period
25
of time because his arms would go numb, and his legs would jerk,
requiring him to get out and walk around every thirty (30) minutes
or so, [Tr. 35]; when working in the mines, he had to lift, push,
pull, and tug heavy amounts of weight, [Tr. 38]; physical therapy
did not help his back and neck pain, [Tr. 39]; his back pain was
worsening, and he wears a back brace off and on that does not help,
[Tr. 39-41]; the doctors told him “that [his] back would never get
better. It would just get worse,” [Tr. 41-42]; his back pain on a
scale of one (1) to ten (10) was an eight (8), [Tr. 42]; laying,
sitting, and walking too long caused him back pain, [Tr. 42-43];
and his back pain radiates down into his legs, [Tr. 43].
Plaintiff now argues that the ALJ “failed to properly assess
the entirety of the medical evidence including all these additional
medical problems which are resulting in additional levels of pain
for Plaintiff.” [DE 11-1, at 20]. In support, Plaintiff claims he
has a further decreased tolerance to perform any type of physical
activity, including sitting, standing, or walking and using his
hands “which result[s] in more difficulties in performing normal
activities from a psychological standpoint.” Id. Plaintiff also
blanketly states that “[t]here is new information that is based
upon the objective medical findings from the medical records,
including diagnostic testing, as well as the consultative exam,”
and his “testimony regarding his pain level is uncontradicted in
the record.” Id. Notably, Plaintiff neither states what exact
26
testimony is uncontradicted nor recounts how his testimony is
supported by the medical evidence in the record.2
Regardless,
Defendant
disagrees
with
Plaintiff,
arguing,
“[S]ubstantial evidence supports the ALJ’s finding that the record
did not include objective findings or other record evidence that
would support Plaintiff’s argument that he was subject to disabling
symptoms.” [DE 13, at 13]. Defendant further contends, “[T]he ALJ’s
analysis
of
Plaintiff’s
symptom
complaints
is
entitled
to
particular deference from this Court.” Id. (citing Jones v. Comm’r
of
Soc.
Defendant
Sec.,
336
contends,
F.3d
469,
476
“Plaintiff’s
(6th
Cir.
2003)).
treatment
records
Finally,
showed
insufficient objective findings to support his claims of disabling
physical pain as well as other alleged symptoms attributed to his
alleged impairments through the date of the Commissioner’s final
decision on January [4], 2018.” [DE 13, at 14 (citing Curler v.
Comm’r of Soc. Sec., 561 F. App’x 464, 475 (6th Cir. 2014)
(unpublished)
(“Curler's
testimony
describing
her
back
pain
contrasted starkly with the medical evidence.”)).
Notably, Plaintiff fails to support his various arguments by
citing to evidence in the in the administrative record.
2
[DE 11-1
Plaintiff relies on Social Security Ruling (“SSR”) 96-7p, which interpreted
SSA Regulation, 20 C.F.R. § 404.1529, in setting forth a two-step process for
evaluating subjective complaints. [DE 11-1, at 19-20]. Plaintiff implies that
SSR 96-7p required the ALJ to make a finding on the credibility of Plaintiff’s
statements. Id. However, as correctly noted by Defendant, [DE 13, at 12 n. 5],
SSR 96-7p was superseded by SSR 16-3p.
27
at
19-21].
This
Court
has
held,
“[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.” Vasquez v. Astrue, No.
6:12–CV–125–KSF, 2013 WL 1498895, at *6 (E.D. Ky. Apr. 11, 2013)
(citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997));
see also Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d
477, 491 (6th Cir. 2006). For example, Plaintiff references the
underlying medical records, but he fails to explain either what
they indicate or how they support his arguments, much less cite to
any specific records. [DE 11-1, at 19-21].
At least some citation to the record is required for Plaintiff
to demonstrate that he is entitled to relief. Plaintiff’s counsel
must take the necessary step of pointing to specific instances
where the ALJ erred and provide citations to the record that
indicate that the ALJ's decision is not supported by substantial
evidence. Simply put, this Court is not required to scour the
entire record, looking for evidence that may support Plaintiff’s
claims.
Nevertheless, on the merits, there is no evidence before the
Court that indicates the ALJ erred in discounting Plaintiff’s
subjective
complaints.
The
ALJ
reviewed
Plaintiff’s
medical
history and relied on substantial evidence, including, objective
28
medical evidence, and opinion evidence by examining and nonexamining physicians, in determining Plaintiff was not disabled
and able to perform light work with some limitations. [Tr. 8-29].
When
evaluating
a
disability
claim
for
social
security
purposes, the claimant's pain should be considered. Kirk v. Sec.
of Health and Human Servs., 667 F.2d 524, 538 (6th Cir. 1981).
Both the SSA and the Sixth Circuit have guidelines for analyzing
a claimant's subjective complaints of pain. The SSA regulations
are set forth in 20 C.F.R. § 404.1529, which states, in part:
[S]tatements about your pain or other symptoms will not
alone establish that you are disabled. There must be
objective medical evidence from an acceptable medical
source that shows you have a medical impairment(s) which
could reasonably be expected to produce the pain or other
symptoms alleged and that, when considered with all of
the other evidence (including statements about the
intensity and persistence of your pain or other symptoms
which may reasonably be accepted as consistent with the
medical signs and laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. § 404.1529(a).
The Sixth Circuit's guidelines for evaluating a claimant's
assertions of disabling pain are set forth in Duncan v. Sec'y of
Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). The Sixth
Circuit laid out these guidelines as follows:
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
29
severity that it can reasonably be expected to produce
the alleged disabling pain.
Id. In Duncan, the Sixth Circuit explicitly noted that the test
“does not require . . . ‘objective evidence of the pain itself.’”
Id. (quoting Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir.
1984)). However, as the Sixth Circuit clarified in Felisky, “[b]oth
the SSA standards and the Duncan test require objective medical
evidence showing an underlying medical condition.” 35 F.3d at 1038–
39
(emphasis
previously
added);
mentioned,
see
the
also
20
ALJ
C.F.R.
may
also
§
404.1529(a).
discount
As
witness
credibility when a claimant’s testimony contradicts the medical
records and other evidence. See Walters v. Comm’r of Soc. Sec.,
127 F.3d at 531.
In the instant case, the ALJ found Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms. [Tr. 24]. However, the ALJ further found
that Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of his symptoms are inconsistent with the
medical evidence and other evidence in the record. [Tr. 24]; see
also 20 C.F.R. § 404.1529(c)(4). The ALJ’s finding is supported by
substantial evidence in the record.
In general, the ALJ found Plaintiff’s “statements about the
intensity, persistence, and limiting effects of his . . . symptoms”
to be “inconsistent because the claimant’s subjective complaints
30
are grossly disproportionate with the medical evidence of record,
which shows only mild radiographic findings.” [Tr. 19]. The ALJ
further found, “Several of the conditions about which the claimant
testified have not been treated at all in the numerous years this
application has been pending.” [Tr. 19].
Particularly, regarding Plaintiff’s testimony about his back
issues, the ALJ found, “While [Plaintiff] has had physical therapy,
and some reduced range of motion and reduced strength, his imaging
studies simply do support the level of impairment the claimant
alleges.” [Tr. 19]. In support of this finding, ALJ cites the
following medical evidence: March 1, 2013, imaging study showing
degenerative disc disease of C5-C6 with mild diffuse bulge, [Tr.
575-94]; March 26, 2013, MRI showing prominent osteophyte disc
complexes at C3-C4 and C5-C6 slightly impinging on the thecal sac
with no disc protrusion, which Dr. Bean later concluded showed
only minor chronic disc bulge at C5-C6, resulting in Dr. Bean
diagnosing Plaintiff with cervical and lumbar sprain and finding
he should be able to get back to work after physical therapy, [Tr.
595-98, 599-601]; Plaintiff’s sprain was treated long term with
opioid medication, [Tr. 719-49, 750-947]; October 20, 2014, x-ray
showing Plaintiff’s lumbar spine to be normal, [Tr. 1166-69]; May
16,
2017,
imaging
study
showing
disc
disease
at
C5-C6
with
narrowing of the disc space with degenerative changes at C5-C6 and
C6-C7 with small anterior osteophyte, [Tr. 1445]; and July 19,
31
2017,
MRI
showing
mild
degenerative
changes
with
no
disc
herniation, significant central spinal stenosis, or nerve root
compression at any level, [Tr. 1452-54]. [Tr. 19-20]. Having
reviewed
evidence,
Plaintiff’s
the
ALJ
various
x-rays,
concluded,
MRIs,
“Although
and
other
medical
the
claimant
has
significant complaints of pain, and some findings of weakness and
limited range of motion on examination, based upon his numerous
mild imaging studies, the claimant’s orthopedic conditions are
accommodated by limiting him to a range of light work.” [Tr. 20].
The ALJ's evaluation of Plaintiff’s testimony is entitled to
deference by this Court. Cruse v. Comm'r of Soc. Sec., 502 F.3d
532, 542 (6th Cir. 2007). As previously stated, “The Court may not
re-weigh the evidence and substitute its own judgment for that of
the Commissioner merely because substantial evidence exists in the
record to support a different conclusion.” Putman v. Astrue, 2009
WL 838155, at *5 (E.D. Tenn. Mar. 30, 2009). So long as the ALJ
cited substantial evidence to support his conclusions, this Court
may not re-evaluate his determinations. Ulman v. Comm'r of Soc.
Sec., 693 F.3d 709, 714 (6th Cir. 2012).
When
considering
all
medical
evidence
and
Plaintiff’s
personal testimony regarding his activities, the ALJ properly
evaluated Plaintiff’s subjective complaints of pain. Because the
ALJ’s evaluation is supported by substantial evidence, it is
entitled to deference. Thus, remand is unwarranted.
32
In addition to Plaintiff’s unfounded argument that the ALJ
failed to properly evaluate his subjective complaints of pain,
Plaintiff posits, “[T]he ALJ has failed to properly assess that
Plaintiff is an individual closely approaching advanced age.” [DE
11-1, at 21]. Plaintiff claims that at the time of the second
hearing, he was over fifty (50) years old, and the ALJ “failed to
assess Plaintiff’s age, education, and past work in making a
determination as to whether he met Grid rules.” Id. Plaintiff’s
position is that “based on the medical record of Harlan ARH . . .
he would be limited to no more than [a] range of sedentary work .
. . .” Id. However, the ALJ based his decision on VE Ellis’s
testimony,
which
was
in
response
to
the
ALJ’s
hypothetical
questions about “an individual of the claimant’s age, education,
and work background.” [Tr. 64]; see also [Tr. 23]. Plaintiff is
making yet another argument that had the ALJ found Plaintiff to
have a more limited RFC, Plaintiff would have been found to be
disabled. While that may be true, as repeatedly stated herein, if
an ALJ’s decision is supported by substantial evidence, as it is
in the present case, the Court may not, and will not, reevaluate
the ALJ’s determinations. Ulman, 693 F.3d at 714.
IV. CONCLUSION
For the foregoing reasons, the Court, having found no legal
error on the part of the ALJ, and that his decision is supported
by substantial evidence,
33
IT IS ORDERED as follows:
(1) Plaintiff’s Motion for Summary Judgment [R. 11] is DENIED;
(2) Defendant’s Motion for Summary Judgement [R. 13] is
GRANTED;
(3) Defendant Commissioner’s decision denying Plaintiff’s
disability claim is AFFIRMED;
(4) This matter is DISMISSED and STRICKEN FROM THE COURT’S
ACTIVE DOCKET; and
(5) Judgment in favor of the Defendant will be
separately.
This the 30th day of September, 2019.
34
ENTERED
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