United States District Court, W.D. Kentucky, Bowling Green Division
ROY L. CREEK PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM, OPINION, AND ORDER
Brent Brennenstuhl United States Magistrate Judge
the Court is the complaint (DN 1) of Plaintiff Roy L. Creek
seeking judicial review of the final decision of the
Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 13) and Defendant (DN 14) have filed a Fact and
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 11). By Order
entered May 16, 2017 (DN 12), 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.
filed an application for Social Security Income and
Disability Insurance Benefits on July 14, 2014 (Tr. 313,
323). Plaintiff alleged that he became disabled on September
28, 2012 as a result of chronic back pain, glaucoma, coronary
artery disease, congestive heart failure, high blood
pressure, high cholesterol, COPD, diabetes, neuropathy pain
in all extremities, sleep apnea, depression, anxiety, and
difficulty concentrating and focusing (Tr. 351).
Administrative Law Judge Richard Guida (“ALJ”)
conducted a video hearing on October 27, 2015 from Baltimore,
Maryland. Plaintiff appeared remotely from Bowling Green,
Kentucky and was represented by attorney Mary Burchett-Bower.
Also present and testifying was impartial vocational expert
decision dated December 10, 2015, the ALJ evaluated this
adult disability claim pursuant to the five-step sequential
evaluation process promulgated by the Commissioner (Tr.
12-31). At the first step, the ALJ found Plaintiff has not
engaged in substantial gainful activity since September 28,
2012, the alleged onset date (Tr. 17). At the second step,
the ALJ determined that Plaintiff's coronary artery
disease, hypertension, degenerative disc disease,
degenerative joint disease, diabetes, neuropathy, carpal
tunnel syndrome, depressive disorder, and borderline
intellectual functioning are “severe” impairments
within the meaning of the regulations (Tr. 17). Also at the
second step, the ALJ determined that Plaintiff's
glaucoma, sleep apnea, and COPD are “non-severe”
impairments within the meaning of the regulations (Tr. 18).
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. 18).
fourth step, the ALJ found Plaintiff has the residual
functional capacity to perform a limited range of light work
(Tr. 19). More specifically, the ALJ assigned Plaintiff the
[H]e can only occasionally push or pull, cannot climb
ladders, can occasionally climb stairs, balance, kneel,
stoop, crouch, and crawl, can engage in frequent bilateral
handling and fingering, requires the option to sit or stand
at will without leaving the workstation, and cannot have
concentrated exposure to temperature extremes, unprotected
heights, and moving machinery. In addition, he is limited to
performing simple, routine tasks.
(Tr. 19). Relying on testimony from the vocational expert,
the ALJ found that Plaintiff is unable to perform his past
relevant work as a truck driver (Tr. 23).
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. 23-24). The ALJ found that Plaintiff
is capable of performing a significant number of jobs that
exist in the national economy (Tr. 24). Therefore, the ALJ
concluded that Plaintiff has not been under a
“disability, ” as defined in the Social Security
Act, from September 28, 2012 through the date of the decision
timely filed a request for the Appeals Council to review the
ALJ's decision (Tr. 9). The Appeals Council denied
Plaintiff's request for review of the ALJ's decision
by the Court is limited to determining whether the findings
set forth in the final decision of the Commissioner are
supported by “substantial evidence, ” 42 U.S.C.
§ 405(g); 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. Landsaw v.
Sec'y of Health & Human Servs., 803 F.2d 211,
213 (6th Cir. 1986). “Substantial evidence exists when
a reasonable mind could accept the evidence as adequate to
support the challenged conclusion, even if that evidence
could support a decision the other way.”
Cotton, 2 F.3d at 695 (quoting Casey v.
Sec'y of Health & Human Servs., 987 F.2d 1230,
1233 (6th Cir. 1993)). In reviewing a case for substantial
evidence, the Court “may not try the case de
novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Cohen v. Sec'y of
Health & Human Servs., 964 F.2d 524, 528 (6th Cir.
1992) (quoting Garner v. Heckler, 745 F.2d 383, 387
(6th Cir. 1984)).
previously mentioned, the Appeals Council denied
Plaintiff's request for review of the ALJ's decision
(Tr. 1-6). At that point, the ALJ's decision became the
final decision of the Commissioner. 20 C.F.R. §§
404.955(b), 404.981, 422.210(a); see 42 U.S.C.
§ 405(h) (finality of the Commissioner's decision).
Thus, the Court will be reviewing the decision of the ALJ,
not the Appeals Council, and the evidence that was in the
administrative record when the ALJ rendered the decision. 42
U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v.
Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir.
1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th
Commissioner's Sequential Evaluation Process The Social
Security Act authorizes payment of Disability Insurance
Benefits and Supplemental Security Income to persons with
disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI