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Pennington v. Colvin

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

April 28, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DANNY R. REEVES, District Judge.

This matter is pending for consideration of cross-motions for summary judgment. [Record Nos. 14, 15] Plaintiff Gregory Allen Pennington ("Pennington" or "the Claimant") argues that the administrative law judge ("ALJ") assigned to his case erred in evaluating the consultative medical opinions, in determining that he does not have a mental impairment, and in finding that some of his alleged impairments are not severe impairments. As a result, Pennington seeks reversal of the ALJ's decision and an award of benefits. Alternatively, he requests remand for further consideration of his claims. The Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("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 Pennington.


On November 15, 2010, Pennington applied for a period of disability, disability insurance benefits, and Supplemental Security Income under Title XVI of the Social Security Act ("the Act"). [ See Administrative Transcript, pp. 184-89; hereafter, "Tr."] He alleges a disability beginning January 11, 2007. [Tr., p. 197] Pennington's applications were denied initially and upon reconsideration. [Tr., pp. 84-85, 118-19] On May 2, 2012, an administrative hearing was held before ALJ Andrew J. Chwalibog in Huntington, West Virginia. [ Id., p. 32] Pennington appeared and testified, represented by attorney William Grover Arnett. [ Id. ] An impartial vocational expert ("VE"), Dwight McMillion, also testified at the hearing. [ Id. ]

Pennington was forty-eight years old at the time of the ALJ's decision. He has an eighth grade education, and previously worked for a construction company for twenty-three years. At the time he filed for benefits in 2010, Pennington claimed to be disabled due to chronic obstructive pulmonary disease ("COPD"), neck and back problems; Stevens-Johnson Syndrome (a life-threatening skin rash), depression, "nerves, " insomnia, and illiteracy. [Tr., p. 19] Pennington also alleged numbness in his hands and arms, worsening eyesight, worsening neck and back pain, and worsening liver disease when he filed for reconsideration. [ Id. ] Due to a somewhat inconsistent record and the nature of the changing claims, [1] Pennington underwent two additional consultative examinations in February and March 2011. [ Id., p. 14]

After reviewing the record and testimony presented during the administrative hearing, ALJ Chwalibog concluded that Pennington suffered from the severe impairments of polyarthralgia, chronic pulmonary insufficiency (from smoking one to two packs per days for twenty or thirty years); organic brain syndrome (mental status, confusion, cerebral atrophy by CT); affective disorder (depression/anxiety); and alcohol abuse. [Tr., p. 14]

Notwithstanding his impairments, the ALJ determined that Pennington maintained the residual functional capacity ("RFC") to perform medium work secondary to back and neck pain, subject to the following limitations:

[Pennington] can occasionally reach and work overhead bilaterally, due to polyarthralgias; must avoid concentrated exposure to vibration and due to pulmonary disease; and, must avoid even moderate exposure to fumes, odors, gases, poor ventilation, etc. Also, [Pennington] has the ability to complete simple, routine, two steps commands; can maintain attention and concentration for two-hour segments to perform simple tasks; can maintain superficial interactions with others in a setting with minimal social demands. He would not be limited in adapting adequately to simple changes and doing simple tasks; he can drive independently, and he can make independent judgments. [Pennington] would require hands on training or oral instructions.

[Tr., p. 22]

Based on the VE's testimony, ALJ Chwalibog determined that Pennington could not perform past relevant work. [Tr., p. 23] However, after considering his age, education, work experience, and RFC, the ALJ found that Pennington could perform other work that exists in significant numbers in the national economy, such as assembler, inspector, grader/sorter, production helper, hand packer, and bench worker. [Tr., p. 26] Based on these findings, the ALJ concluded that Pennington was not disabled under the Act.


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 he is not engaged in substantial gainful employment at the time of the disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must show that he suffers from a severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 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, he will be considered disabled without regard to age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 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 ...

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