Gary Creech v. Comm'r of Soc. Sec. , 581 F. App'x 519 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0740n.06
No. 14-5032
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
GARY REED CREECH, ) Sep 23, 2014
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) On Appeal from the United States
v. ) District Court for the Eastern District
) of Kentucky
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant-Appellee. )
)
_________________________________/ )
Before: GUY, CLAY, and WHITE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Gary Reed Creech appeals the district court’s
judgment affirming the denial of his application for Social Security Disability Insurance benefits.
See 42 U.S.C. § 405(g). Having reviewed the record and the arguments presented on appeal, we
conclude that no error occurred and find that substantial evidence supports the ALJ’s findings.
Accordingly, we affirm.
I.
Gary Creech worked as a multiple coil winder from 1972 until 2009. Creech filed an
application for disability insurance benefits alleging that he became disabled as of July 15, 2009,
at age 58, due to breathing problems and arthritic pain in his lumbar spine and hip. After the
Social Security Administration denied his application initially and upon reconsideration, Creech
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requested a hearing before an administrative law judge (ALJ). A hearing was conducted by
video conference before ALJ Charles J. Arnold on October 13, 2011. A written decision denying
the claim was issued on November 23, 2011, which became the final decision after the Appeals
Council denied Creech’s request for review. Creech filed this action seeking judicial review of
the final administrative decision, and the district court affirmed for the reasons stated in its
opinion entered on November 13, 2013. This timely appeal followed.
II.
Reviewing the district court’s decision de novo, this court determines whether the ALJ
applied the correct legal standards and reached a conclusion supported by substantial evidence.
See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010).
A. Signature
Creech argued in the district court that reversal was required because the Commissioner
allowed an ALJ who had not presided over the hearing, and to whom the case had not been
reassigned, to author the unfavorable decision contrary to the Commissioner’s own procedures
set forth in the Hearings, Appeals, and Litigation Law Manual (HALLEX). On appeal, Creech
argues that this error denied him due process, violated his right to a de novo hearing under
42 U.S.C. § 405(b), and was not in compliance with the procedures set forth in HALLEX I-2-8-
40.
HALLEX is an internal manual that serves to convey “‘guiding principles, procedural
guidance and information’ to adjudicators and staff of the Office of Hearings and Appeals.”
Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 397 (6th Cir. 2008) (quoting HALLEX I-1-0-1).
One provision, HALLEX I-2-8-40, addresses situations in which the ALJ who conducted the
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hearing is not available to issue or to sign a decision. First, if the ALJ is unavailable to issue a
decision for a substantial period of time, the Hearing Office Chief ALJ (HOCALJ) may reassign
the case to another ALJ who determines whether another hearing is necessary. There is no
indication here that Creech’s case was reassigned. Second, if the ALJ has approved a final draft
of the decision but is unavailable to sign the decision with either a “wet” signature or a “verified”
electronic signature, the HOCALJ may be authorized to sign the final decision on behalf of the
temporarily unavailable ALJ. The record supports the district court’s finding that this is what
occurred here.
Specifically, the record reflects that the hearing was conducted by ALJ Arnold and that
the final decision was signed with the electronic signature “Don C. Paris for Charles J. Arnold.”
There is no dispute that Don Paris was the Hearing Office Chief Administrative Law Judge
(HOCALJ). In addition, the denial decision was accompanied by a separate notice of the same
date from ALJ Arnold, which stated: “I carefully reviewed the facts of your case and made the
enclosed decision.” There is no basis to conclude other than that the HOCALJ signed the
decision on behalf of the ALJ who had conducted the hearing and drafted the decision. As such,
we need not decide whether the internal procedures of HALLEX I-2-8-40 create procedural due
process rights. See, e.g., Lawrence v. Colvin, No. 3:13-032-DCR, 2014 WL 640990, at *4 (E.D.
Ky. Feb. 18, 2014) (citing cases). Moreover, even district courts that have granted relief for
failure to comply with HALLEX have required that the plaintiff demonstrate prejudice from the
failure to follow the procedures. See id.
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B. Substantial Evidence
“The substantial-evidence standard is met if a ‘reasonable mind might accept the relevant
evidence as adequate to support a conclusion.’” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009) (citation omitted). In conducting our review,
we do not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. Instead, we consider the ALJ’s decision determinative if there is
such relevant evidence as a reasonable mind might accept as sufficient to support
the ALJ’s conclusion. The substantial evidence standard is less exacting than the
preponderance of the evidence standard. If the ALJ’s decision is supported by
substantial evidence, then reversal would not be warranted even if substantial
evidence would support the opposite conclusion.
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (citations and internal quotation marks
omitted).
The ALJ found that Creech met the insured-status requirements for disability benefits
through December 31, 2014, and had not engaged in substantial gainful activity since July 15,
2009. The ALJ found that Creech had severe impairments consisting of arthralgia and
emphysema, but that those impairments did not satisfy the severity requirements of any of the
listed impairments. After review of the medical records, including the evaluation by consultative
examiner, Mark Burns, M.D., and treating physician William Foley, M.D., the ALJ found that
the evidence confirmed Creech’s medically determinable impairments of arthritis of the back and
shoulder and emphysema, but not the degree of impairment alleged. Based on Dr. Burns’s
report, which was not contradicted by Dr. Foley’s evaluation, the ALJ found Creech retained the
residual functional capacity to perform medium work “except he cannot be exposed to
pulmonary irritants, humidity or temperature extremes.”
On appeal, Creech argues that this residual-functional-capacity (RFC) finding was not
supported by substantial evidence because it was inconsistent with the conclusion that he could
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not perform any past relevant work when he had prior work experience that was light-to-medium
exertion and semiskilled (clerk, stocker and delivery person). Because this argument was not
raised in the district court, we need not consider it for the first time on appeal. See White v.
Comm’r of Soc. Sec., 572 F.3d 272, 288 (6th Cir. 2009). Even if we did, however, this claim
lacks merit. As the Commissioner points out, there is no internal inconsistency because the
light-to-medium work experience that Creech claims was ignored did not constitute past relevant
work because it was not work he had performed within the past fifteen years. See 20 C.F.R.
§ 404.1560(b). Further, the ALJ specifically found that Creech had the RFC to perform medium
exertion work with certain limitations.
Next, Creech argues that the RFC finding was not supported by substantial evidence
because the ALJ stated that he “afford[ed] substantial weight to Dr. Burns[’] residual functional
capacity because it is supported by the preponderance of the evidence.” It is true that Dr. Burns
did not make an RFC assessment; however, the ALJ’s statement followed a summary of the
findings that Dr. Burns did make with respect to plaintiff’s physical limitations. Without
repeating those findings, we conclude that they provided substantial evidence to support the
ALJ’s RFC determination.
Finally, the ALJ noted that he “considered the opinions of the Kentucky State Agency
program physicians as required by Social Security Ruling 96-6p, concurring in their conclusion
that the claimant is ‘not disabled’ for the reasons detailed above.” Creech argues on appeal that
the state agency assessments did not provide “concurring support” for the ALJ’s RFC findings
because those non-examining assessments also found that Creech had no severe impairments.
However, no inconsistency in reasoning is reflected by the ALJ’s agreement with the conclusion
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that Creech was not disabled, and Creech has not shown that the ALJ’s RFC determination was
not supported by substantial evidence.
AFFIRMED.