United States District Court, W.D. Kentucky, Louisville Division
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
S. Edward, United District Magistrate Judge
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).
Findings of Fact Jeffrey
(“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).
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).
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).
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
Standard of Review
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)
Conclusions of Law
Finding No. 4: Listed Impairment
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) ...