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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON JOHNNY BROCK, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil No. 08-231-ART

MEMORANDUM OPINION & ORDER

*** *** *** *** This matter is before the Court on the cross-motions for summary judgment filed by Plaintiff Johnny Brock, R. 10, and Defendant Michael Astrue, Commissioner of Social Security, R. 11. For the reasons given below, the Court will deny Plaintiff's Motion for Summary Judgment and grant Defendant's Motion for Summary Judgment. I. BACKGROUND Brock filed an application for disability insurance benefits on May 18, 2006. Adm. R. at 108114. Brock alleged a disability beginning May 9, 2006. Id. His claim was denied initially, and again on reconsideration. Brock's claim stems from complaints of chronic back pain. The record reflects that in the fall of 2006, Dr. El-Kalliny diagnosed Brock with a herniated disk, recommended surgery, and on January 12, 2007, Brock underwent a "diskectomy" performed by Dr. William Brooks. Adm. R. at 51, 412-497 (Exhibit 24F). Dr. James Bean and Dr. Ronald Dubin both treated Brock following his surgery. See Adm. R. at 673-74 (Exhibit 57F); 557-570 (Exhibit 35F). In addition, Dr. Richard

Lingreen diagnosed Brock with "lumbar degenerative disc disease" and treated Brock from December 13, 2006 through September 12, 2007. Adm. R. at 604-610 (Exhibit 44F). During the disability review process, two non-examining state agency physicians reviewed Brock's medical records and opined that Brock could perform a "range of light exertion." Adm. R. at 52, 321-328 (residual functional capacity assessment of Dr. Lange, dated September 13, 2006), 350-357 (residual functional capacity assessment of Dr. Gregg, dated November 21, 2006). In addition, on July 28, 2007, Brock underwent a consultative examination by Dr. Daniel Sean Stewart. Adm. R. at 540-49 (Exhibit 31F). He diagnosed asthma and degenerative disk disease. Id. at 542. He also opined that Brock had physical limitations that could preclude certain employment because of his chronic lower back pain. Id. at 544. He noted that it is unlikely Brock could lift or carry more than 15-20 pounds and he appeared to be limited in his ability to bend, stoop, crawl, and squat. Id. At Brock's request, an administrative hearing was held before an Administrative Law Judge (ALJ) on September 21, 2007. Adm. R. at 1-37 (hearing transcript). At the time of the hearing Brock was thirty-four years of age. Id. at 34. Brock testified that he was previously employed as a short-haul truck driver, but that he stopped working because he had to have back surgery, and he complained of neck pain and foot and leg numbness. Adm. R. at 11, 22. He also testified that he was currently taking medication for asthma and complained of stomach ulcers. Id. at 28, 32 Vocational expert Jane Hall also appeared and testified at this hearing. Id. at 33-36. In response to the hypothetical question posed with the various restrictions described therein, she testified that there were a number of jobs that Brock could perform including inspector, cashier, or assembler. Id. at 35. Thereafter, the ALJ denied Brock's claims on April 11, 2008. See Adm. R. at 45-55. The 2

ALJ concluded that from May 9, 2006, Brock was not disabled and thus was not eligible for disability insurance benefits. Id. at 48. The Appeals Council denied Brock's request for review of the ALJ's decision, id. at 38, at which point the ALJ's decision became the Commissioner of Social Security's final decision. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). II. SOCIAL SECURITY REVIEW PROCESS AND THE ALJ'S DECISION A claimant can receive benefits only if he is deemed "disabled" under the Social Security Act. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (citing 42 U.S.C.

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