Carter v. Commissioner of Social Security
Filing
25
MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 8/29/2019. The Findings of Fact, Conclusions of Law, and Recommendation of Magistrate Judge Lanny King (D.N. 18) are ADOPTED in full and INCORPORATED by reference herein. Carter's objections (D.N. 21) are OVERRULED. A separate judgment will be entered this date. cc: Counsel (AME)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARK CARTER,
Plaintiff,
v.
Civil Action No. 3:18-cv-273-DJH-LLK
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Mark Carter filed this action seeking review of the Commissioner of Social
Security’s decision to deny his application for disability-insurance benefits. (Docket No. 1) The
case was referred to Magistrate Judge Lanny L. King for report and recommendation. Judge King
issued his Findings of Fact, Conclusions of Law, and Recommendation on February 13, 2019,
recommending that the Commissioner’s decision be affirmed and that Carter’s complaint be
dismissed. (D.N. 18) Carter timely filed an objection to the report and recommendation. (D.N.
21) After careful consideration, the Court will overrule the objection and adopt Judge King’s
Findings of Fact, Conclusions of Law, and Recommendation.
I.
BACKGROUND
On November 22, 2015, Carter filed an application for disability-insurance benefits
asserting that he was unable to work due to his interstitial lung disease/pulmonary fibrosis, disk
herniation/bilateral foraminal stenosis, depression/PTSD, and hypertension. (D.N. 9-2, PageID #
50; D.N. 9-3, PageID # 200) The Commissioner denied Carter’s application on July 26, 2016, and
again on December 7, 2016. (D.N. 9-2, PageID # 50) Carter thereafter filed a request for a hearing
before an administrative law judge. (Id.) On January 3, 2018, the ALJ issued an opinion denying
Carter’s claims, finding that Carter has the residual functional capacity (RFC) to perform
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“sedentary work as defined in 20 CFR 404.1567(a)” with some limitations. (Id., PageID # 55)
The ALJ also found that considering Carter’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that he can perform. (Id., PageID #
69) The appeals council denied Carter’s request for review. (Id., PageID # 36–39)
Carter filed this action on April 30, 2018, challenging the Commissioner’s denial of his
claims. (D.N. 1) The Court referred the matter to Magistrate Judge Lanny L. King, who
recommended that the Commissioner’s decision be affirmed and that Carter’s complaint be
dismissed with prejudice.
(D.N. 18)
Carter timely filed objections to Judge King’s
recommendation. (D.N. 21)
II.
STANDARD
When a party objects to a report and recommendation, the Court reviews de novo only
those portions of the report to which objection is made. 28 U.S.C. § 636(b)(1)(C). The Court may
adopt without review any portion of the report to which no objection is made. See Thomas v. Arn,
474 U.S. 140, 150 (1985); Skaggs v. Berryhill, No. 3:17-CV-631-DJH-LLK, 2018 WL 4219194,
at *2 (W.D. Ky. Sept. 5, 2018). Accordingly, the Court will review de novo only the portions of
Judge King’s recommendation to which Carter objects.
The Commissioner has promulgated regulations setting forth a five-step sequential process
for evaluating whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). Step two and step five
of that process are at issue here. (D.N. 24; D.N. 27) At step two, the ALJ “must determine whether
the claimant has a medically determinable impairment that is ‘severe’ or a combination of
impairments that is ‘severe.’” (D.N. 9-2, PageID # 51) 20 C.F.R. 404.1520(c). Having already
concluded that a claimant cannot perform past relevant work due to his impairment, at step five,
the ALJ considers the claimant’s RFC with his age, education, and work experience to determine
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whether he can perform any other work. 20 C.F.R. § 404.1520(g). If the claimant cannot perform
any other work, the Commissioner will find that he is disabled. Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 529 (6th Cir. 1997).
“In reviewing an ALJ’s decision, the Court asks ‘whether it is supported by substantial
evidence and was made pursuant to proper legal standards.’” Skaggs, 2018 WL 4219194, at *3
(citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted)).
“Substantial evidence is defined as 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, 486 F.3d at 241. The Court must affirm the ALJ’s decision if it is supported by substantial
evidence. Staymate v. Comm’r of Soc. Sec., 681 F. App’x 462, 466 (6th Cir. 2017) (citations
omitted). “The findings of the [ALJ] are not subject to reversal merely because there exists in the
record substantial evidence to support a different conclusion.” Buxton v. Comm’r of Soc. Sec., 246
F.3d 762, 772 (6th Cir. 2001); see also Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389–90 (6th
Cir. 1999) (“Even if the evidence could also support another conclusion, the decision of the
Administrative Law Judge must stand if the evidence could reasonably support the conclusion
reached.”). The Court may not independently weigh the available evidence. Price v. Comm’r
SSA, 342 F. App’x 172, 174 (6th Cir. 2009).
III.
DISCUSSION
While Carter only lists one objection, “Obesity as a Severe Impairment,” it appears that he
objects to Judge King’s recommendations on three grounds: failure to take obesity into account as
a severe impairment; improper utilization of a treating-source opinion; and the ALJ’s improper
evaluation methods. (See D.N. 21, PageID # 951, 953) The Court will consider each objection in
turn.
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A.
Carter first argues that the ALJ failed to classify Carter’s obesity as a severe impairment
under Step 3 of the analysis and that Judge King failed to mention obesity as a severe impairment.
(Id., PageID # 951–52) Yet the ALJ did classify Carter’s obesity as a severe impairment. (D.N.
9-2, PageID # 52, 54) And while it is true that Carter’s obesity was not mentioned by Judge King
in his report and recommendation, this omission is likely attributable to the fact that Carter did not
raise the issue in his Memorandum of Law/Findings of Fact. (See D.N. 12) Judge King could
address only the issues that Carter appealed and developed in his memorandum. See Cooper v.
Colvin, No. CIV.A. 12-101-DLB, 2013 WL 5350624, at *7 n.2 (E.D. Ky. Sept. 23, 2013) (noting
that the reviewing court “can only address those arguments that the Plaintiff actually makes”).
Moreover, Carter’s failure to set forth his objection to the obesity-impairment issue in his
memorandum constitutes a waiver of that argument.
See
Franklin v. Colvin, No.
115CV00052GNSHBB, 2015 WL 9255563, at *2 (W.D. Ky. Dec. 18, 2015) (citing Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)) (finding that a court “is under no obligation, absent
compelling reasons, to review new arguments or issues that were not raised before the Magistrate
Judge”).
Carter also asserts that “the Court’s rationalization of the reasons why obesity was not
proven as a severe impairment is a substitution of its opinion for that of the Commissioner who
never considered the matter.”
(D.N. 21, PageID # 952)
Again, however, Judge King’s
recommendation did not address obesity because Carter did not raise that issue in his
memorandum. (See D.N. 18) In any event, Carter’s obesity was in fact classified as a severe
impairment by the ALJ. (D.N. 9-2, PageID # 52)
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If Carter’s objection is that his obesity should be classified as a severe impairment, it fails
because the ALJ classified it as such. (Id.) If the objection is that Judge King did not properly
consider his obesity when determining whether the ALJ’s decision should be affirmed, this
argument has been waived. See Murr, 200 F.3d at 902 n.1.
B.
Carter’s second objection appears to be that the ALJ improperly ignored a treating-source
opinion. (See D.N. 21, PageID # 953–54) In his objections, Carter does not identify which treating
source’s opinion is at issue. (See D.N. 21) The objections include only vague statements such as
“[t]he ALJ did not follow the directives of 20 C.F.R. § 404.1527 when considering the treating
source and the unique perspective the treating source brings to the evaluation,” and “[t]he record
contains statements of the treating physician about the combined effect of the physical and mental
impairments as well as the psychological findings of somatic problems by the psychological
treating source.” (Id., PageID # 953–54) Carter’s objection never mentions the particular treatingsource opinion that he claims was given too little significance, or how it should have been
considered. (See id.)
“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.” McPherson v. Kelsey, 125 F.3d 989, 996 (6th Cir.
1997). Vague arguments without factual support are deemed waived. See Moore v. Comm’r, 573
F. App’x 540, 543 (6th Cir. 2014) (“Issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.”). As Carter has not provided the
Court with sufficient details to determine which treating-source opinion is at issue or how it should
have been considered, the Court considers this argument waived.
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C.
Finally, Carter objects to two of the ALJ’s evaluation methods. First, Carter argues that
“the ALJ’s generalization about considering the effect on the body’s systems is insufficient.”
(D.N. 21, PageID # 953) But Carter does not provide the Court with specific details regarding the
alleged improper generalization. (See D.N. 21) Nor is there any reference to the record or any
specific part of the ALJ’s decision. (See id.) Carter has not provided the Court with sufficient
detail to consider this argument, and thus it is waived. See Moore, 573 F. App’x at 543.
Carter next complains that “[t]he ALJ must explain how any material inconsistencies or
ambiguities in the record evidence were considered and resolved.” (D.N. 21, PageID # 953) Carter
directs the Court to consider “why were the numerous findings evidencing obesity omitted as well
as the opinions and numerous findings on the combined effect of the physical and mental
symptoms?” (Id., PageID # 954) But an ALJ need not “discuss every piece of evidence in the
record.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254 (6th Cir. 2016) (citing Thacker v.
Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004)). As with the first evaluation objection,
this vague description of “ambiguities” and “inconsistencies” in the record is insufficient to permit
this Court to meaningfully consider the argument. See Moore, 573 F. App’x at 543. This argument
is therefore also waived. Id.
IV.
CONCLUSION
For the reasons set forth above, and the Court being otherwise sufficiently advised, it is
hereby
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ORDERED as follows:
(1)
The Findings of Fact, Conclusions of Law, and Recommendation of Magistrate
Judge Lanny King (D.N. 18) are ADOPTED in full and INCORPORATED by reference herein.
(2)
Carter’s objections (D.N. 21) are OVERRULED.
(3)
A separate judgment will be entered this date.
August 29, 2019
David J. Hale, Judge
United States District Court
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