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Hensley v. Berryhill

United States District Court, W.D. Kentucky, Louisville Division

September 17, 2019

JEFFREY HENSLEY PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

          Regina S. Edward, United District Magistrate Judge

         The Commissioner of Social Security denied Jeffrey Hensley's applications for supplemental security income benefits and disability insurance benefits. Hensley seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Both Hensley (DN 17-1) and the Commissioner (DN 18) have filed a Fact and Law Summary. The District Judge has referred the case to the undersigned United States Magistrate Judge (DN 13) to review the Fact and Law Summaries and submit Findings of Fact, Conclusions of Law, and Recommendations. 28 U.S.C. § 636(b)(1)(B).

         I. Findings of Fact Jeffrey

         Hensley (“Hensley”) is 44 years old, lives with his wife and children, and did not complete high school. On the day he turned 18, Hensley went straight into doing line construction. (Tr. 76-77). He claims that in 2012 or 2013 he had a mild heart attack and heat stroke while working on an electrical pole in Louisa, Kentucky, and since then his ability to work has not been the same. (TR. 78). Hensley explains that he tried to continue working for about another year after his heart attack but eventually quit because he couldn't perform the work. (Id.). Due to his constant back pain, migraines, shaking hands, COPD, and asthma, Hensley alleges that he can do little housework and needs assistance at the grocery store. (Tr. 79-81). Hensley has cut “way down” on smoking cigarettes but still smokes “about a pack a day.” (Tr. 82, 84).

         Hensley applied for supplemental security income benefits (“SSI”) under Title XVI and disability insurance benefits (“DIB”) under Title II, claiming he became disabled on January 1, 2014 (Tr. 222-238), as a result of pain while standing; heart problems; high blood pressure; depression; back pain; memory issues; and concentration issues. (Tr. 266). His applications were denied initially (Tr. 110, 127) and again on reconsideration (Tr. 147, 166). Administrative Law Judge D. Lyndell Pickett (“ALJ Pickett”) conducted a hearing in Louisville, Kentucky, on October 30, 2017. (Tr. 70-72). Hensley attended the hearing with his attorney. (Id.). An impartial vocational expert also testified at the hearing. (Id.). ALJ Pickett issued an unfavorable decision on January 30, 2018. (Tr. 33).

         ALJ Pickett applied the traditional five-step sequential analysis promulgated by the Commissioner, 20 C.F.R. § 404.1520, Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010), and found as follows. First, Hensley has not engaged in substantial gainful activity since January 1, 2014, the alleged onset date. (Tr. 23). Second, Hensley has the severe impairments of degenerative disc disease, migraine headaches, coronary artery disease, hypertension, chronic obstructive pulmonary disease (COPD), asthma, obstructive sleep apnea, carpal tunnel syndrome, and obesity. (Tr. 23). Third, none of Hensley's impairments or combination of impairments meets or medically equals the severity of a listed impairment from 20 C.F.R. Pt. 404, Subpt. P, App'x 1. (Tr. 25). Between steps three and four, ALJ Pickett found that Hensley has the residual functional capacity to perform “light work” with the following limitations:

He could never crawl or climb ladders, ropes, or scaffolds; he could occasionally balance, stoop, kneel, crouch, or climb ramps or stairs; he could occasionally have exposure to extreme cold or heat, humidity, fumes, odors, dusts, gases, or poor ventilation; he could never have exposure to hazards such as unprotected heights or dangerous machinery; he should be in an environment with a noise level of three or less as defined in the SCO; and he could frequently handle, finger or feel with the bilateral upper extremities.

(Tr. 26). Fourth, ALJ Pickett found Hensley could not perform any of his past relevant work. (Tr. 31). Fifth and finally, considering Hensley's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that he can perform. (Tr. 32).

         Based on this evaluation, ALJ Pickett concluded that Hensley was not disabled, as defined in the Social Security Act, from January 1, 2014, through January 30, 2018, the date of his decision. (Tr. 33). Hensley appealed ALJ Pickett's decision. (Tr. 221). The Appeals Council declined review. (Tr. 1). At that point, the denial became the final decision of the Commissioner, and Hensley appealed to this Court. (DN 1).

         II. Standard of Review

         When reviewing the administrative law judge's decision to deny disability benefits, the Court may “not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). Instead, the Court's review of the administrative law judge's decision is limited to an inquiry as to whether the administrative law judge's findings were supported by substantial evidence, 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations omitted), and whether the administrative law judge employed the proper legal standards in reaching her conclusion. See 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 v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993). The Supreme Court has clarified that “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high[.]” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citations omitted).

         III. Conclusions of Law

         A. Finding No. 4: Listed Impairment

         Hensley first claims that “at step three of the sequential evaluation process . . . ALJ Pickett found that Plaintiff failed to meet or equal any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1[.]” But that statement is the entirety of Hensley's argument. He does not identify which listing he allegedly meets and does not provide any support for meeting a specific listing from the regulations. Because Hensley mentions this issue in a cursory manner, “unaccompanied by some effort at developed argument, ” this argument is deemed waived and does not merit further consideration. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997); see also Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007) ...


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