United States District Court, E.D. Kentucky, Northern Division, Covington
JAMIE L. CLEVENGER PLAINTIFF
ANDREW SAUL, Commissioner Social Security Administration DEFENDANT
MEMORANDUM OPINION AND ORDER
Candace J. Smith, United States Magistrate Judge.
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.
STANDARD OF REVIEW AND THE ADMINISTRATIVE PROCESS
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.
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)).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
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).
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).
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
[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).
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.).
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. ...