United States District Court, E.D. Tennessee, Knoxville
REPORT AND RECOMMENDATION
case is before the undersigned pursuant to 28 U.S.C. §
636(b), Rule 72(b) of the Federal Rules of Civil Procedure,
and the Rules of this Court for a report and recommendation
regarding disposition by the District Court of
Plaintiff's Motion for Judgment on the Pleadings and
Memorandum in Support [Docs. 19 & 20] and Defendant's
Motion for Summary Judgment and Memorandum in Support [Docs.
21 & 22]. Michael Darrel Marlow (“Plaintiff”)
seeks judicial review of the decision of the Administrative
Law Judge (“the ALJ”), the final decision of
Defendant Nancy A. Berryhill (“the
Commissioner”). For the reasons that follow, the Court
will RECOMMEND that Plaintiff's motion
[Doc. 19] be DENIED and the
Commissioner's motion [Doc. 21] be
March 12, 2013, Plaintiff filed an application for
supplemental security income benefits pursuant to Title XVI
of the Social Security Act, 42 U.S.C. § 1381 et
seq., claiming a period of disability that began on July
1, 2003. [Tr. 23, 99, 178-82]. After his application was denied
initially and upon reconsideration, Plaintiff requested a
hearing before an ALJ. [Tr. 131]. A hearing was held on March
9, 2016. [Tr. 40-68]. On July 22, 2016, the ALJ found that
Plaintiff was not disabled. [Tr. 23-34]. The Appeals Council
denied Plaintiff's request for review on August 4, 2017
[Tr. 1-7], making the ALJ's decision the final decision
of the Commissioner.
exhausted his administrative remedies, Plaintiff filed a
Complaint with this Court on October 2, 2017, seeking
judicial review of the Commissioner's final decision
under Section 405(g) of the Social Security Act. [Doc. 1].
The parties have filed competing dispositive motions, and
this matter is now ripe for adjudication.
made the following findings:
1. The claimant has not engaged in substantial gainful
activity since March 12, 2013, the alleged onset date (20 CFR
416.971 et seq.).
2. The claimant has the following severe impairments:
obesity, nearsighted vision, partial toe amputation,
hypertension, pars defect, affective disorder, personality
disorder, and alcohol abuse (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 416.967(b) except he cannot climb ladders, ropes, or
scaffolding, and he can only occasionally climb ramps and
stairs, as well as being capable of occasional balancing,
stooping, kneeling, crouching and crawling. He is capable of
occasional overhead reaching, pushing, and pulling using his
right upper extremity. His vision precludes jobs requiring
accurate judgments of distance and speed. The claimant is
able to work with large objects, able to do sustained detail
work, and he is capable of working with small objects. He is
able to avoid ordinary workplace hazards, such as boxes on
the floor, doors ajar, or approaching people are [sic]
vehicles. The claimant is limited to understanding,
remembering, in carrying out simple, routine, and repetitive
tasks performed in a work environment free from fast-paced
work. His work should entail only simple work-related
decisions and with few, if any, workplace changes. The
claimant should not interact with the general public, but he
is capable of occasional interaction with coworkers and
5. The claimant is unable to perform any past relevant work
(20 CFR 416.965).
6. The claimant was born on October 13, 1961 and was 51 years
old, which is defined as an individual closely approaching
advanced age, on the date the application was filed (20 CFR
7. The claimant has a limited education and is able to
communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue in this case
because the claimant's past relevant work is unskilled
(20 CFR 416.968).
9. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 416.969, and
10. The claimant has not been under a disability, as defined
in the Social Security Act, since March 12, 2013, the date
the application was filed (20 CFR 416.920(g)).
STANDARD OF REVIEW
reviewing the Commissioner's determination of whether an
individual is disabled pursuant to 42 U.S.C. § 405(g),
the Court is limited to determining whether the ALJ's
decision was reached through application of the correct legal
standards and in accordance with the procedure mandated by
the regulations and rulings promulgated by the Commissioner,
and whether the ALJ's findings are supported by
substantial evidence. Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 405 (6th Cir. 2009) (citation
omitted); Wilson v. Comm'r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004).
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.” Cutlip v. Sec'y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)
(citations omitted). It is immaterial whether the record may
also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the
reviewing judge may have decided the case differently.
Crisp v. Sec'y of Health & Human Servs., 790
F.2d 450, 453 n.4 (6th Cir. 1986). The substantial evidence
standard is intended to create a “‘zone of
choice' within which the Commissioner can act, without
the fear of court interference.” Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
Therefore, the Court will not “try the case de
novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
review, the plaintiff “bears the burden of proving his
entitlement to benefits.” Boyes v. Sec'y. of
Health & Human Servs., 46 F.3d 510, 512 (6th Cir.
1994) (citation omitted).
is the 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 twelve months.” 42 U.S.C.
§§ 423(d)(1)(A) and 1382c(a)(3)(A). A claimant will
only be considered disabled:
if his physical or mental impairment or impairments are of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
§§ 423(d)(2)(A) and 1382c(a)(3)(B).
is evaluated pursuant to a five-step analysis summarized as
1. If claimant is doing substantial gainful activity, he is
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be
3. If claimant is not doing substantial gainful activity and
is suffering from a severe impairment that has lasted or is
expected to last for a continuous period of at least twelve
months, and his impairment meets or equals a listed