Armstead v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 7/11/2017: The final decision of the Commissioner is AFFIRMED. Judgment is GRANTED for the Commissioner. cc: counsel, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:16-CV-00159-HBB
GLENN AARON ARMISTEAD

PLAINTIFF

VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Glenn Aaron Armistead (APlaintiff@) seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both
the Plaintiff (DN 17) and Defendant (DN 18) have filed a Fact and Law Summary. Additionally,
Plaintiff is filed a motion for relief (DN 16).
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 13). By Order entered March
17, 2017 (DN 14), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.

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FINDINGS OF FACT
Plaintiff protectively filed an application for Supplemental Security Income on September
16, 2015 (Tr. 11, 236-41). Plaintiff alleged that he became disabled on November 1, 2013 as a
result of a leg amputation, depression, posttraumatic stress disorder, and high blood pressure (Tr.
11, 267). Administrative Law Judge Jason R. Yoder (AALJ@) conducted a hearing on August 30,
2016 in Evansville, Indiana. Plaintiff was present and represented by attorney S. Ryan Vanover,
who participated by telephone (Tr. 11). Tina Stambaugh was present and testified as a vocational
expert during the hearing (Id.).
In a decision dated September 14, 2016 the ALJ evaluated Plaintiff’s adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr.
11-23). At the first step, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since September 16, 2015 the application date (Tr. 14). At the second step, the ALJ
determined that Plaintiff has the following severe impairments: “left lower extremity
below-the-knee amputation with some residual phantom pain, alcohol use disorder in sustained
partial remission, cannabis use disorder in partial remission, cocaine use disorder in remission,
amphetamine-type use disorder in remission, intermittent explosive disorder (IED), panic
disorder, unspecified depression disorder, and antisocial personality disorder” (Id.). Notably, at
the second step, the ALJ also determined that Plaintiff=s benign hypertension and vitamin D
deficiency are Anon-severe@ impairments within the meaning of the regulations (Id.). At the third
step, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in Appendix 1 (Tr. Id.).

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At the fourth step, the ALJ made the following finding regarding Plaintiff’s residual
functional capacity:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 416.967(a) except he
can lift and carry 10 pounds occasionally and less than 10 pounds
frequently. He can sit for at least 6 out of 8 hours, and stand and
walk for about 2 out of 8 hours. He cannot push, pull, or operate
foot controls with his left lower extremity. He can never climb
ladders, ropes, or scaffolds, kneel, or crawl. He can occasionally
climb ramps and stairs, balance, stoop, and crouch. He must avoid
all exposure to dangerous work hazards such as exposed moving
machinery in unprotected heights. He can understand and
remember simple instructions, and carry out simple, routine tasks
that require little independent judgment or decision-making. He
should not perform tasks that have stringent speed or strict
rate-based production requirements, and involving few, if any, daily
changes in a work task or work environment. He can have
occasional, intermittent interaction with co-workers and
supervisors. He can have no interaction with the public.
(Tr. 17). The ALJ found that Plaintiff has no past relevant work (Tr. 22).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 22-23). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff has not been
under a Adisability,@ as defined in the Social Security Act, from September 16, 2015, the date that
the application was filed, through the date of the decision, September 14, 2016 (Tr. 23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr. 7).
The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1-4).

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CONCLUSIONS OF LAW
The Court has construed the complaint (DN 1), the motion for relief (DN 16), and the fact
and law summary (DN 17) in pro se Plaintiff’s favor, as required by Haines v. Kerner, 404 U.S.
519, 520-521 (1972). Plaintiff raises numerous claims, including, but not limited to: (1) the
wrongful denial of Supplemental Security Income benefits; (2) discrimination by the Social
Security Agency (presumably as a result of the decision not to award benefits); (3) concealment as
a result of some unspecified conduct by the Agency; (4) civil fraud as a result of some unspecified
conduct by the Agency; (5) a violation of the False Claim Act as a result of some unspecified
conduct by the Agency; (6) a violation of his civil rights as a result of some unspecified conduct by
the Agency; and (7) identification theft (DN 16, 17).
Sovereign immunity protects the United States and its agencies from suit unless there is a
waiver. The United States has waived sovereign immunity as to the Commissioner's final
decisions denying Social Security benefits, allowing private parties to bring actions for judicial
review under 42 U.S.C. § 405(g) and 405(h) of the Social Security Act. See Matthews v.
Eldridge, 424 U.S. 319, 327 (1976).
Pursuant to 42 U.S.C. § 405(g), review by the Court is limited to determining whether the
findings set forth in the final decision of the Commissioner are supported by Asubstantial
evidence,@ Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied.
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013); Cole v. Astrue, 661 F.3d 931,
937 (6th Cir. 2011); Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir.

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1986). However, Plaintiff is not challenging on either basis the findings set forth in the final
decision of the Commissioner (Tr. 11-23).
Subject matter jurisdiction over Plaintiff’s claims would normally arise under 28 U.S.C. §
1331 (federal question jurisdiction) and 28 U.S.C. § 1346(b)(1) (the Federal Tort Claims Act).
However, Congress has strictly limited the Court’s subject matter jurisdiction over actions brought
against the Commissioner:
No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal, or governmental
agency except as herein provided. No action against the United
States, the Commissioner of Social Security, or any officer or
employee thereof shall be brought under section 1331 or 1346 of
Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h) (emphasis added). Clearly, § 405(h) bars Plaintiff from proceeding with these
claims against the Commissioner under §§ 1331 and 1346(b)(1) because they arise out of
Plaintiff’s claim for Social Security Benefits. To the extent that Plaintiff may be asserting a
discrimination claim under the Due Process or Equal Protection clauses to the United States
Constitution, the Court lacks jurisdiction to consider such a claim because it arises out of the denial
of Social Security benefits. See Schweiker v. Chilicky, 487 U.S. 412, 414-29 (1988) (when the
due process claim arises out of the handling of a request for Social Security benefits the courts
have no jurisdiction to consider the claim under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) because Congress has provided what it considers
adequate remedial mechanisms for constitutional violations that may occur in the course of its
administration). In sum, the Court lacks subject matter jurisdiction over Plaintiff’s claims.
As previously mentioned, Plaintiff is not challenging any of the findings set forth in the
final decision of the Commissioner (Tr. 11-23). In recognition of Plaintiff’s pro se status, the
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Court has made a thorough review of the ALJ’s decision and the administrative record. The
Court concludes that the final decision of the Commissioner is supported by substantial evidence
in the record and fully comports with applicable law. Therefore, the final decision of the
Commissioner will be upheld.

ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED judgment is GRANTED for the Commissioner.

July 11, 2017

Copies:

Glen A. Armstead, pro se
Counsel

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