United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
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.
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 “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)
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)
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
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 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).
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
Fed.Appx. 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 Fed.Appx. 172, 174 (6th Cir. 2009).
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.
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”).
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 ...