United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge.
Thomas Martin Mullins brings this action under 42 U.S.C.
§ 405(g) to challenge Defendant Commissioner’s
final decision denying Plaintiff’s application for
Social Security Disability Insurance Benefits and
Supplemental Security Income. [DE 1]. The specific matters
currently before the Court include Plaintiff’s Motion
for Summary Judgment [DE 17] and Defendant’s Motion for
Summary Judgment [DE 19]. Both matters are now ripe for
decision, and for the reasons discussed below,
Plaintiff’s Motion for Summary Judgment [DE 17] will be
denied, and Defendant’s Motion for Summary Judgment [DE
19] will be granted. Accordingly, the Court will affirm the
Commissioner’s decision, as it is supported by
FACTUAL AND PROCEDURAL BACKGROUND
20, 2013, Plaintiff filed both a Title II application for a
period of disability and disability insurance benefits and a
Title XVI application for supplemental security income,
alleging his disability began on February 14, 2012. [Tr.
143-46]. At the time of Plaintiff’s alleged
disability onset date, he was 47 years old. [Tr. 357-64].
Plaintiff is a high school graduate, and his past relevant
work was as a coal mine shuttle car operator and a coal mine
scoop operator. [Tr. 357-64]. In Plaintiff’s
application materials, he initially alleged he was unable to
work due to both physical and mental impairments, including
anxiety, depression, high blood pressure, arthritis, and pain
in the lower back, neck, left knee, arms, and shoulders,
which arose from injuries to his neck and back that occurred
while he was working in the mines. [Tr. 395]; see
also [Tr. 429, 475, 694].
received treatment from pain management specialists James
Chaney, M.D., Peter Wright, M.D., Ballard Wright, M.D., and
the Wrights’ nurse practitioner, Rebecca Moore. [Tr.
475-77, 478-500, 583-89, 641-57, 669-8]. On January 28, 2013,
Plaintiff began seeing John W. Gilbert, M.D., for his back
pain. [Tr. 508-13]. Initially, Dr. Gilbert recommended
physical therapy and facet blocks. [Tr. 508]. However, Dr.
Gilbert’s initial treatments proved insufficient, so on
October 10, 2013, he performed a cervical decompression
fusion surgery on Plaintiff. [Tr. 543-46]. Plaintiff’s
treatment with Dr. Gilbert, Dr. Peter Wright, and Dr. Ballard
Wright will be discussed further herein.
claims were denied initially and on reconsideration. [Tr.
143, 144, 197, 198]. After a March 31, 2015 hearing [Tr.
117-42], on April 13, 2015, an Administrative Law Judge
(“ALJ”) reviewed the evidence of record and
granted Plaintiff’s applications. [Tr. 199-209].
However, on February 2, 2016, the Appeals Council vacated the
ALJ’s April 13, 2015, Decision [Tr. 199-209] and
remanded this case for further proceedings because the
Appeals Council found the ALJ’s April 13, 2015,
Decision [Tr. 199-209] was not supported by substantial
evidence. [Tr. 210-16]. Pursuant to the Appeals
Council’s remand, on April 6, 2016, a second hearing
[Tr. 79-116] was held, and on June 28, 2016, an ALJ reviewed
the evidence of record and denied Plaintiff’s
applications. [Tr. 24-45]. In denying Plaintiff’s
applications, the ALJ found the Plaintiff had severe
breathing and neck and lower back pain and should avoid
concentrated exposure to vibration and fumes, odors, dusts,
gases, and poor ventilation. [Tr. 29, 31]. The ALJ determined
Plaintiff could perform light work, including the following
restrictions: frequent climbing of ramps and stairs; no
climbing of ladders, ropes, or scaffolds; occasional
stooping, kneeling, crouching, and crawling; and frequent
overhead reaching. [Tr. 31]. The ALJ’s light work
finding was consistent with state agency physician Donna
Sandler, M.D.’s January 7, 2014, assessment that
Plaintiff was not disabled and was capable of performing
light work with certain postural, reaching, and environmental
limitations. [Tr. 191-96]. The ALJ accorded great weight to
the state agency. [Tr. 37]. In conclusion, the ALJ decided
that while Plaintiff was unable to perform his past relevant
work as a coal mine bolting machine operator and a coal mine
scoop operator, he was “capable of making a successful
adjustment to other work that exists in significant numbers
in the national economy.” [Tr. 24-45]. On October 31,
2017, the ALJ’s June 28, 2016, Decision [Tr. 24-45]
became the final determination of the Commissioner when the
Appeals Council denied Plaintiff’s request for review.
exhausted his administrative remedies, on January 4, 2018,
Plaintiff sought review through an action in this Court,
arguing in Paragraph V of his Complaint [DE 1] that
Defendant’s determination that Plaintiff was not
disabled was not supported by substantial evidence. [DE 1, at
2]. On April 19, 2018, Defendant filed an answer contending,
“Paragraph V of Plaintiff’s Complaint states a
legal conclusion to which no responsive pleading is required.
To the extent that the court deems a responsive pleading is
necessary, defendant denies paragraph V.” [DE 9, at 1].
Pursuant to the Court’s April 19, 2018, Standing
Scheduling Order [DE 10], Plaintiff was directed to
“move for summary judgment or judgment on the pleadings
within sixty (60) days.” [DE 10, at 2].
20, 2018, instead of moving for summary judgment or judgment
on the pleadings, Plaintiff filed a Motion for Extension of
Time in Order to Submit Memorandum [DE 11] asserting,
“[C]ounsel has had to relocate this law practice which
interrupted his ability to properly prepare Mr.
Mullins’ [sic] memorandum and have delayed our ability
to complete our arguments on Mr. Mullins’ [sic]
behalf.” [DE 11, at 1]. On August 13, 2018, Plaintiff
filed a Motion to Amend Complaint and Motion to Remand [DE
12], requesting the Court allow Plaintiff “to amend its
complaint to reflect that the denial issued claim issued in
2017 was issued by an ALJ who was not properly
appointed.” [DE 12, at 1]. On March 25, 2019, the Court
granted Plaintiff’s Motion for Extension of Time in
Order to Submit Memorandum [DE 11] and denied
Plaintiff’s Motion to Amend Complaint and Motion to
Remand [DE 12] because he failed to state his argument in a
non-perfunctory manner and, accordingly, waived his argument.
[DE 16]. Specifically, the Court found Plaintiff waived his
argument because instead of making a proper argument,
Plaintiff directed this Court to merely look at a United
States Supreme Court opinion, Lucia v. S.E.C., 138
S.Ct. 2044 (2018). Id.
be discussed further herein, on April 10, 2019, Plaintiff
filed the present Motion for Summary Judgment [DE 17], with
an accompanying Memorandum in Support [DE 17-2]. Responding
to Plaintiff’s Motion for Summary Judgment [DE 17], on
May 6, 2019, Defendant filed a Motion for Summary Judgment
[DE 19] arguing, in summary, that Plaintiff has waived all
Lucia related challenges, and in assessing
Plaintiff’s RFC, the ALJ reasonably weighed the medical
opinion evidence. [DE 19, at 7-12].
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), a reviewing court “must
affirm the Commissioner’s conclusions absent a
determination that the Commissioner has failed to apply the
correct legal standard or has made findings of fact
unsupported by substantial evidence in the record.”
Longworth v. Comm’r Soc. Sec., 402 F.3d 591,
595 (6th Cir. 2005) (citations omitted). The scope of
judicial review is limited to the record itself, and the
reviewing court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of
credibility.” Hogg v. Sullivan, 987 F.2d 328,
331 (6th Cir. 1993) (citations omitted).
Sixth Circuit has held that “substantial evidence
exists when a reasonable mind might accept the relevant
evidence as adequate to support a conclusion.”
Warner v. Comm’r of Soc. Sec., 375 F.3d 387,
390 (6th Cir. 2004) (citations omitted). The limited nature
of substantial evidence review prevents the reviewing court
from substituting its judgment for that of the ALJ. Rather,
so long as substantial evidence exists, the reviewing court
should affirm the ALJ’s Decision [Tr. 24-45]
“even if there is substantial evidence in the record
that would have supported an opposite conclusion.”
Longworth, 402 F.3d at 595 (citations omitted).
Substantial evidence is “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 v. Comm’r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations
determining whether the Secretary's factual findings are
supported by substantial evidence, [the Court] must examine
the evidence in the record ‘taken as a whole . . .
.’” Wyatt v. Secretary of Health and Human
Services, 974 F.2d 680, 683 (6th Cir. 1992) (citing
Allen v. Califano, 613 F.2d 139, 145 (6th Cir.
1980)). Additionally, the Court “‘must take into
account whatever in the record fairly detracts from its
weight.’” Wyatt, 974 F.3d at 683 (citing
Beavers v. Secretary of Health, Educ. & Welfare,
577 F.2d 383, 387 (6th Cir. 1978). “The substantial
evidence standard presupposes that there is a ‘zone of
choice’ within which the [Commissioner] may proceed
without interference from the courts.” Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations
omitted). “If the Secretary’s findings are
supported by substantial evidence, then we must affirm the
Secretary’s decision even though as triers of fact we
might have arrived at a different result.” Elkins
v. Secretary of Health & Human Services, 658 F.2d
437, 439 (6th Cir. 1981).
the Social Security Act, the term “disability”
means an “inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months . . . .”
42 U.S.C. § 423(d)(1)(A). A five-step sequential
evaluation process is used to determine whether a claimant is