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Messer v. Colvin

United States District Court, E.D. Kentucky, Southern Division, Pikeville

April 14, 2014

TERRI MESSER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DANNY C. REEVES, District Judge.

Plaintiff Terri Messer ("Messer" or "the Claimant") was involved in an accident in December 2009, resulting in a broken leg. Even before the accident, Messer suffered from several impairments which limited her ability to be gainfully employed. In June 2010, Messer filed an application for supplemental security income under the relevant provisions of the Social Security Act. After her administrative claim was rejected, Messer filed the current action, claiming that the decision to deny her SSI benefits was erroneous.

The matter is currently pending for consideration of cross-motions for summary judgment filed by Messer and Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("the Commissioner"). [Record Nos. 14 and 15] Messer argues that the administrative law judge ("ALJ") assigned to her case erred by discounting the severity of two impairments. Additionally, she asserts that the ALJ was biased against her. As a result, Messer seeks reversal of the ALJ's decision and an award of benefits. Alternatively, she requests remand for further consideration of her claims. However, the Commissioner contends that the ALJ's decision is supported by substantial evidence and should be affirmed.

For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief sought by Messer.


On June 16, 2010, Messer applied for Supplemental Security Income ("SSI") under Title XVI of the Act. [ See Administrative Transcript, pp.142-43; hereafter, "Tr."] She alleges a disability beginning July 1, 2000. Messer's application was denied initially and upon reconsideration. [Tr., p. 60-90] On March 16, 2012, a hearing was held before ALJ Ronald M. Kayser in Hazard, Kentucky.[1] [ Id., pp. 29-59] Messer appeared and testified, represented by attorney Lucinda Cornett. [ Id., p. 13, 29] Impartial vocational expert ("VE") Tina Stambaugh also testified at the hearing via telephone. [ Id., pp. 32, 54-58]

Messer was fifty-three years old at the time of the ALJ's decision. She has completed two years of college and has past work experience as a substitute teacher. [Tr., p. 34, 54-55, 157] While teaching duties would normally be classified as skilled, Messer described her past job responsibilities as a "glorified babysitter." [Tr., p. 36] As a result, her past work was classified by the VE as semi-skilled. [Tr., p. 55] Messer claims to be disabled under the Act due to obesity, bipolar disorder, severe pain in her left leg resulting from the above-referenced automobile accident, migraine headaches, and seizures. After reviewing the record and testimony presented during the administrative hearing, the ALJ concluded that Messer suffered from the severe impairments of affective mood disorder, seizure disorder, morbid obesity, and a fracture of the left tibia (status post open reduction internal fixation in December 2009). However, he did not conclude that the migraine headaches Messer claimed to suffer constituted a severe impairment under the applicable regulations. [Tr., p. 15-18]

Notwithstanding her impairments, the ALJ determined that Messer maintained the residual functional capacity ("RFC") to perform medium work, subject to the following limitations:

[Messer] has the [RFC] to perform medium work as defined in 20 CFR 416.967(c) except that the claimant can lift 50 pounds occasionally and 25 pounds frequently; can stand and walk six hours in an eight hour workday; can sit six hours in an eight hour workday; no restrictions on pushing and pulling; should not climb ropes, scaffolds, and ladders; can frequently climb ramps and stairs; and the claimant should not work around dangerous machinery or unprotected heights. The claimant has moderate vs marked limitations in her ability to understand, remember, and carry out detailed instructions; work in coordination within proximity of others without being distracting by them or exhibiting behavioral extremes; and respond appropriately to changes in work setting. The claimant retains the ability to perform the requirements of basic unskilled work including the ability to remember, understand, and carry out simple and some detailed instructions and procedures requiring brief initial learning periods; can sustain concentration, effort, and pace for simple tasks requiring little independent judgment and involving minimal variations and doing so at requisite schedules of work and breaks; can interact frequently as needed with supervisors and peers and sufficiently for task completion, yet requiring no more than occasional interaction with the public; and the claimant can adapt adequately to situational conditions and changes with reasonable support and structure.

[Tr., p. 18]

Based on the testimony of VE Stambaugh, the ALJ determined that Messer could not perform past relevant work. [Tr., p. 23] However, after considering the Claimant's age, education, work experience and RFC, he found that she could perform other work that exists in significant numbers in the national economy, such as warehouse worker, general factory helper, and order filler. Additionally, the ALJ determined that Messer could perform clerical work, notwithstanding all of her physical and mental limitations, restrictions and impairments. [Tr., p. 24] Based on these findings, the ALJ concluded that Messer was not disabled under the Social Security Act. As a result, Messer was denied SSI benefits. [Tr., p. 24]


Under the Social Security Act, a "disability" is defined as "the inability to engage in substantial gainful activity' because of a medically determinable physical or mental impairment of at least one year's expected duration." Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007). A claimant's Social Security disability determination is made by an ALJ in accordance with "a five-step sequential evaluation process.'" Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. § 404.1520(a)(4)). If the claimant satisfies the first four steps of the process, the burden shifts to the Commissioner with respect to the fifth step. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).

First, the claimant must demonstrate that she is not engaged in substantial gainful employment at the time of the disability application. 20 C.F.R. § 416.920(b). Second, the claimant must show that she suffers from a severe impairment or combination of impairments. 20 C.F.R. § 416.920(c). Third, if the claimant is not engaged in substantial gainful employment and has a severe impairment which is expected to last for at least twelve months and which meets or equals a listed impairment, she will be considered disabled without regard to age, education, and work experience. 20 C.F.R. § 416.920(d). Fourth, if the Commissioner cannot make a determination of disability based on medical evaluations and current work activity and the claimant has a severe impairment, the Commissioner will then review the claimant's RFC and relevant past work to determine whether she can perform her past work. If she can, she is not disabled. 20 C.F.R. § 416.920(f).

Under the fifth step of the analysis, if the claimant's impairments prevent her from doing past work, the Commissioner will consider her RFC, age, education, and past work experience to determine whether she can perform other work. If she cannot perform other work, the Commissioner will find the claimant disabled. 20 C.F.R. § 416.920(g). The Commissioner has the burden of proof only on "the fifth step, proving that there is work available in the economy that the claimant can perform." White v. Comm'r of Soc. Sec., 312 F.Appx. 779, 785 (6th Cir. 2009) (quoting Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)).


Messer asserts that this matter should be reversed or remanded for further consideration for three reasons. First, she contends that ALJ Kayser failed to include migraine headaches as a severe impairment. Thus, she contends that the ALJ erred at the second step of the sequential evaluation process. Second, Messer argues that the ALJ erred in concluding that she has effective ambulation when, in fact, she does not. And finally, Messer alleges that ALJ Kayser was biased toward her. However, having reviewed the administrative ...

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