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Messer v. Colvin

United States District Court, E.D. Kentucky, Northern Division, Ashland

July 18, 2014



JOSEPH M. HOOD, Senior District Judge.

Plaintiff, Scotty Neil Messer, brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security denying his claims for period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). The Court, having reviewed the record, will affirm the Commissioner's decision, as it is supported by substantial evidence.


In determining whether a claimant has a compensable disability under the Social Security Act, the regulations provide a five-step sequential process which the administrative law judge must follow. 20 C.F.R. § 404.1520(a)-(e); see Walters v. Commissioner of Social Security, 127 F.3d 525, 529 (6th Cir. 1997). The five steps, in summary, are as follows:

(1) If the claimant is currently engaged in substantial gainful activity, he is not disabled.
(2) If the claimant is not doing substantial gainful activity, his impairment must be severe before he can be found disabled.
(3) If the claimant is not doing substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, the claimant is presumed disabled without further inquiry.
(4) If the claimant's impairment does not prevent him from doing past relevant work, he is not disabled.
(5) Even if the claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that accommodates his residual functional capacity and vocational factors (age, education, skills, etc.), he is not disabled.

Id. The burden of proof is on the claimant throughout the first four steps of this process to prove that he is disabled. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the administrative law judge reaches the fifth step without a finding that the claimant is not disabled, then the burden shifts to the Commissioner to consider the claimant's residual functional capacity, age, education, and past work experience to determine if he could perform other work. If not, he would be deemed disabled. 20 C.F.R. § 404.1520(f). Importantly, the Commissioner only has the burden of proof on "the fifth step, proving that there is work available in the economy that the claimant can perform." Her v. Commissioner of Social Security, 203 F.3d 388, 391 (6th Cir. 1999).


Plaintiff filed his applications for benefits on August 16, 2010, alleging disability as of July 7, 2010 [TR 146-153, 175]. Plaintiff's applications were denied initially and again on reconsideration [TR 88-91, 93-98]. After a hearing before an Administrative Law Judge ("ALJ") on February 8, 2012 [TR 25-43], the ALJ issued an unfavorable decision on February 27, 2012 [TR 10-20]. Plaintiff's request for review to the Appeals Council was denied on May 7, 2013, and the decision of the ALJ now stands as the final decision of the Commissioner [TR 1-5].

At the time the ALJ rendered his decision, Plaintiff was 45 years old [TR 146]. He has a high school education and has past relevant work experience as a fast food worker, truck driver and laborer [TR 30, 180, 191, 193]. Plaintiff claims that his ability to work is limited due "bad" discs in his back and a pinched nerve in his left leg [TR 179]. Plaintiff alleges that he became disabled on July 7, 2010 and that he could no longer work due to his condition [TR 179].

The ALJ began his analysis by determining that Plaintiff has met the insured status requirements of the Social Security Act through September 30, 2014 [TR 15]. At step one, the ALJ found that Plaintiff has not engaged in any substantial gainful activity since July 7, 2010, the alleged onset date [TR 15]. At step two, the ALJ determined that Plaintiff suffers from the following severe impairments: degenerative disc disease (DDD) of the lumbar spine, status-post spinal fusion and laminectomy [TR 15]. Continuing on to the third step, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments [TR 16].

Reviewing the entire administrative record, the ALJ described Plaintiff's residual functional capacity ("RFC") as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). He can push/pull to the weight limits of light work. He requires a sit/stand option at 30-minute intervals. He can frequently operate foot controls with both lower extremities. The claimant can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps/stairs, kneel, stoop, crouch, and crawl. He must avoid concentrated exposure to extreme cold; extreme heat; excessive vibration; and hazards such as moving machinery and unprotected heights.
[TR 16-19].

At step four of the analysis, considering the testimony of a Vocational Expert ("VE"), the ALJ found that Plaintiff could not perform any past relevant work [TR 19]. However, at step five, the ALJ concluded that, based on Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform [TR 19-20]. Therefore, the ALJ determined that Plaintiff has not been under a disability, as defined in the Social Security Act, from July 7, 2010 through the date of the ALJ's decision. [TR 20].

The ALJ's decision that Plaintiff is not disabled became the final decision of the Commissioner when the Appeals Commission subsequently denied his request for review on May 7, 2013 [TR 1-5]. Plaintiff has exhausted his administrative remedies and filed a timely action in this Court. This case is now ripe for review under 42 U.S.C. § 405(g).


The decision of the Commissioner must be supported by substantial evidence. Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). Once the decision of the Commissioner is final, an appeal may be taken to the United States District Court pursuant to 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is restricted to determining whether it is supported by substantial evidence and was made pursuant to the proper legal standards. See Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286 (6th Cir. 1994). "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." Id. In reviewing the decision of the Commissioner, courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. See id. Rather, the court must affirm the Commissioner's decision so long as it is supported by substantial evidence, even if the ...

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