United States District Court, W.D. Kentucky, Bowling Green Division
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
King, Magistrate Judge United States District Court
filed a complaint seeking judicial review, pursuant to 42
U.S.C. § 405(g), of the final decision of the
Commissioner denying his claim for Social Security disability
benefits. The Court referred the matter to the undersigned
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636. (Docket # 11.) The fact and law summaries
of Plaintiff and Defendant are at Dockets # 15 and 16, and
the matter is ripe for determination.
argument in support of judicial disturbance of the
Commissioner's final decision that are presented
“in a perfunctory manner, unaccompanied by some effort
at developed argumentation” are deemed waived or
forfeited. Hicks v. Comm'r of Soc. Sec., 909
F.3d 786 n. 8 (6th Cir., 2018) (quoting McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). It is
insufficient that a Plaintiff “mention a possible
argument in a most skeletal way, ” leaving the court to
put flesh on its bones. Id.
makes four arguments. (Docket # 15). Because they are all
conclusory and do not develop a sufficient legal or factual
basis, they are waived. Therefore, the RECOMMENDATION will be
that the Court AFFIRM the Commissioner's final decision
and DISMISS Plaintiff's complaint.
Administrative Law Judge (“ALJ”) found that
Plaintiff suffers from the following severe, or vocational
significant, medical impairments: 1) Status post right L5-S1
laminectomy and discectomy in 2011; 2) Depressive disorder;
3) Degenerative disc disease of the lumbar and cervical
spine; 4) History of transient ischemic attack in 2012; 5)
Hypertension; and 6) Anxiety. (Administrative Record
(“AR”) at 12).
first argument is that “the ALJ erred in failing to
find that [his impairments] either met or equaled Listing
1.00 [of Appendix 1 of the regulations] in regard to his back
condition.” (Docket # 15 at 2).
specific medical impairment is listed at Listing 1.00.
Listing 1.00 is simply an introduction to impairments of the
“musculoskeletal system” such as major
dysfunction of a joint (Listing 1.02) and disorders of the
spine (Listing 1.04). Plaintiff does not identify which
specific Listing he alleges his back condition satisfies, and
he does not give page references to the administrative record
showing that each clinical criterion of a Listed impairment
is satisfied. Therefore, his argument is
Plaintiff's argument is unpersuasive. Plaintiff alleges
that the evidence shows that he has “difficulty with
ambulation.” (Docket # 15 at 2 referencing AR at 552).
Listings 1.02(A) and 1.04(C) are predicated, in part, on an
“inability to ambulate effectively, as defined in
1.00B2b.” To the extent Plaintiff is arguing that his
back conditions satisfies Listings 1.02(A) and/or 1.04(C),
the argument is unpersuasive for two reasons. First, the
evidence at ¶ 552 consists of a May 2016 progress note,
which states that Plaintiff's pain is “aggravated
by prolonged standing.” (AR at 552.) This does not
prove that Plaintiff has significant difficulty ambulating.
Second, even if Plaintiff does have significant difficulty
ambulating, this does not satisfy the Listings. An inability
to ambulate effectively means an “extreme limitation of
the ability to walk.” Listing 1.00B2b(1). Ineffe cti v
e ambul a tion is g e n erally defi n e d “ a s ha v
ing insufficient lower extremity functioning ... to permit
independent ambulation without the use of a hand- held
assistive device(s) that limits the function of both upper
extremities.” Id. A person ambulates
effectively if he is “capable of sustaining a
reasonable walking pace over a sufficient distance to be able
to carry out activities of daily living ... [and can] travel
without companion assistance to and from a place of
employment.” Section 1.00B2b(2). There is no allegation
or evidence that Plaintiff requires a walker, two crutches,
or two canes to walk. The ALJ found that Plaintiff drives
himself to doctor appointments, goes to the grocery, visits
family, goes fishing, and walks up and down the hall of his
apartment complex as part of his therapy. (AR, p. 16.)
second argument is that “the ALJ erred in failing to
find that [his impairments] either met or equaled Listing
12.00.” (Docket # 15 at 3).
specific medical impairment is listed at Listing 12.00.
Listing 12.00 is simply an introduction to “mental
impairments” such as depressive, bipolar and related
disorders (Listing 12.04) and anxiety and
obsessive-compulsive disorder (Listing 12.06). Plaintiff does
not identify which specific Listing he alleges his mental
impairment satisfies. Therefore, his argument is waived
Alternatively, Plaintiff's argument is unpersuasive.
Plaintiff cites the August 2017 completion by his treating
psychiatrist, Syed Umar, of the Residual Functional Capacity
Questionnaire for Psychiatric Disorders. (Docket # 15 at 3
referencing AR at 710-14). Among other things, Dr. Umar found
that Plaintiff has: 1) “Moderate” restriction of
the activities of daily living; 2) “Marked”
difficulties in maintaining social functioning; 3)
“Moderate” deficiencies of concentration,
persistence or pace resulting in failure to complete tasks in
a timely manner; and 4) “Experienced repeatedly
(3)” episodes of decompensation in any setting which
cause the patient to withdraw from that situation or to
experience exacerbation of signs and symptoms. (AR at
712-13). These findings correspond to the language of former
Listings 12.04(B) and 12.06(B) and, if the ALJ had accepted
these findings, this would have satisfied the former
extent Plaintiff's argument is that his mental impairment
satisfies former Listings 12.04(B) and/or 12.06(B), the
argument is unpersuasive for two reasons. First, the
ALJ's December 2017 decision was based on the version of
the Listings that went into effect in January 2017, 81 Fed.
Reg. 66138, 2016 WL 5341732 (AR at 13), and the new version
does not correspond to Dr. Umar's findings. Second,
assuming for the sake of argument that satisfying the old
version satisfies the new version, the ALJ gave “little
weight” to Dr. Umar's findings because they are
“not consistent with the record as a whole” and
“[t]here is no evidence of decompensation” (much
less three episodes). (AR at 20 referencing AR at 712- 13).
Therefore, Plaintiff has not shown that his mental impairment
satisfies the former Listings.