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Clevenger v. Saul

United States District Court, E.D. Kentucky, Northern Division, Covington

September 30, 2019

ANDREW SAUL, Commissioner[1] Social Security Administration DEFENDANT


          Candace J. Smith, United States Magistrate Judge.

         Plaintiff Jamie L. Clevenger brings this action under 42 U.S.C. § 405(g), challenging Defendant Commissioner’s final decision denying his application for disability insurance benefits under Title II of the Social Security Act. The parties have consented to the undersigned’s authority to adjudicate this action pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (See R. 14). At issue is whether the Administrative Law Judge (ALJ) erred in finding Plaintiff “not disabled” within the meaning of the Social Security Act and therefore not entitled to benefits. The Court, having reviewed the record and the parties’ dispositive motions, and for the reasons set forth herein, will affirm the Commissioner’s decision.


         In reviewing the decision of an ALJ in social security cases, the only issues before the reviewing court are whether the ALJ applied correct legal standards and whether the decision is supported by substantial evidence. 42 U.S.C. § 423(a)(1). Substantial evidence means “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)). A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012).

         The Social Security Act requires the Commissioner to follow a five-step analysis when making a determination on a claim of disability. Vance v. Comm’r of Soc. Sec., 260 Fed.App’x 801, 803-04 (6th Cir. 2008) (citing Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). First, a claimant must demonstrate that he is not currently engaged in “substantial gainful activity.” Vance, 260 Fed.App’x at 803 (citing 20 C.F.R. §§ 404.1520(b), 416.920(b)). Second, if the claimant is not engaged in substantial gainful activity, he must demonstrate that he suffers from a severe impairment. Id. at 803-04. “A ‘severe impairment’ is one which ‘significantly limits . . . physical or mental ability to do basic work activities.’” Id. at 804 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). Third, if the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment meets or equals a listed impairment located at 20 C.F.R. part 404, subpart P, appendix 1, then the claimant is presumed disabled regardless of age, education, or work experience. Id. (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). Fourth, if the impairment does not meet or equal a listed impairment, the claimant must show his impairment prevents him from doing his past relevant work. Id. Lastly, even if the claimant cannot perform his past relevant work, he is not disabled if he can perform other work that exists in the national economy. Id. (citing Abbot, 905 F.2d at 923). Throughout this process, the claimant carries the overall burden of establishing that he is disabled, but the Commissioner bears the burden of establishing that the claimant can perform other work existing in the national economy. Id. (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).


         Plaintiff Jamie Clevenger was 50 years old at the time of the ALJ’s November 21, 2017 decision. Plaintiff completed the eleventh grade and has training for and worked in the past as a plumber. (See Administrative Record (A.R.) at 20, 192). Plaintiff alleged disability due to physical impairments, including high blood pressure, high cholesterol, type 2 diabetes, neuropathy or peripheral neuropathy of the lower extremities, obesity, sleep apnea, and diabetic retinopathy. (Id.).

         Plaintiff filed an application for Disability Insurance Benefits on September 4, 2015, alleging disability onset as of April 1, 2015. (Id. at 172). The application was denied initially on January 22, 2016, and again upon reconsideration on April 21, 2016. (Id. at 81, 91). Plaintiff appeared and testified at an administrative hearing before ALJ Thuy-Anh Nguyen on October 12, 2017. (Id. at 29). The ALJ also heard testimony from an impartial vocational expert. (Id. at 42). After receiving testimony and reviewing the record, the ALJ issued a written decision on November 21, 2017, finding Plaintiff not disabled under the Social Security Act and therefore not entitled to benefits. (Id. at 22).

         The ALJ used the five-step sequential process to determine that Plaintiff was not disabled. (Id. 13-21). See 20 C.F.R. § 404.1520(a). At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since April 1, 2015, the alleged onset date of Plaintiff’s disabilities. (Id. at 14) (citing 20 C.F.R. § 404.1571 et seq.). At step two, the ALJ found that Plaintiff’s severe impairments consisted of diabetes mellitus, peripheral neuropathy, obesity, obstructive sleep apnea, and depressive disorder. (Id.) (citing 20 C.F.R. § 404.1520(c)). At step three, the ALJ analyzed the Plaintiff’s impairments and the opinions of treating and examining physicians and found that Plaintiff did not have an impairment that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. at 15-16).

         Before moving on to step four, the ALJ considered the entire record and determined that Plaintiff Clevenger possessed the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), with the following restrictions:

[Plaintiff] is further limited to occasionally balancing, stooping, kneeling, crouching, crawling, or climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; performing jobs on flat, level ground; frequently operating foot pedals bilaterally, frequently handling, fingering, or feeling bilaterally; avoiding concentrated exposure to unprotected heights, dangerous machinery, extreme cold, and extreme heat; completing simple tasks that do not require a strict production quota or a fast pace; frequently interacting with others; adapting to occasional changes in a workplace; and performing positions that permit him to be off task 5% of a workday.

(Id. at 16).

         It was at this step that the ALJ reviewed the mental capacities of Plaintiff. (Id. at 16-20). This review included the opinions of two psychologists: Dr. McKinney, a consultative examiner, and Dr. Tishler, a state agency consultant. (Id. at 19). The ALJ gave the opinion of Dr. McKinney partial weight and gave the opinion of Dr. Tishler little weight, citing a lack of support in actual clinical findings and the record. (Id.).

         At step four, the ALJ found, both based on the Dictionary of Occupational Titles and the testimony of a vocational expert, that Plaintiff could not perform his past work as a plumber. (Id. at 20). The ALJ then proceeded to step five and adopted the vocational expert’s opinion that given an individual of Plaintiff’s age, education, work experience, and residual functional capacity, there are available jobs classified as light, unskilled occupations such as protective clothing issuer, bus monitor, and weights/measure checker clerk. ...

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