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Duncan v. Berryhill

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

June 12, 2017

REBECCA JEAN DUNCAN PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION & ORDER

          David L. Bunning United States District Judge

         Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record and the parties' dispositive motions, and for the reasons set forth herein, will affirm the Commissioner's decision.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 12, 2013, Plaintiff Rebecca Jean Duncan applied for supplemental security income (SSI) and disability insurance benefits (DIB), alleging disability beginning on May 13, 2013. (Tr. 177-89). Plaintiff was fifty-one (51) years old at the time of filing. (Tr. 177). Plaintiff alleged that she was unable to work after a fall caused a bulging disc against nerves in her back. (Tr. 232).

         Plaintiff's application was denied initially, and again on reconsideration. (Tr. 112-15; 119-25; 126-33). At Plaintiff's request, an administrative hearing was conducted on September 18, 2015 before Administrative Law Judge (ALJ) Ben Ballengee. (Tr. 31-63). On December 23, 2015, ALJ Ballengee ruled that Plaintiff was not entitled to benefits. (Tr. 11). This decision became the final decision of the Commissioner on October 7, 2016, when the Appeals Council denied Plaintiffs request for review. (Tr. 1-8).

         Plaintiff filed the instant action on November 8, 2016 alleging the ALJ's conclusions "are not supported by substantial evidence and are contrary to law and regulation." (Doc. # 2). The matter has culminated in cross-motions for summary judgement, which are now ripe for adjudication. (Docs. # 11 and 13).

         II. DISCUSSION

         A. Overview of the Process

         Judicial review of the Commissioner's decision is restricted to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). "Substantial evidence" is defined as "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). Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Id. Rather, the Court must affirm the Commissioner's decision, as long as it is supported by substantial evidence, even if the Court might have decided the case differently. Her v. Comm'r of Soc. Sec, 203 F.3d 388, 389-90 (6th Cir. 1999). If supported by substantial evidence, the Commissioner's findings must be affirmed, even if there is evidence favoring Plaintiff's side. Llstenbee v. Sec'y of Health & Human Servs., 846 F.2d 345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to reversal merely because substantial evidence would have supported the opposite conclusion. Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).

         To determine disability, the ALJ conducts a five-step analysis. Step One considers whether the claimant can still perform substantial gainful activity; Step Two, whether any of the claimant's impairments, alone or in combination, are "severe;" Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform her past relevant work; and Step Five, whether a significant number of other jobs exist in the national economy that the claimant can perform. The burden of proof rests with the Plaintiff on Steps One through Four. As to the last step, the burden of proof shifts to the Commissioner to identify "jobs in the economy that accommodate [Plaintiffs] residual functional capacity." See Jones v. Comm'r of Soc. Sec, 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec'y of Health & Human Servs., 14F.3d 1107, 1110 (6th Cir. 1994).

         B. The ALJ's Determination

         At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful activity since May 13, 2013, the alleged onset date of disability. (Tr. 16). At Step Two, the ALJ determined that Plaintiff has the following severe impairment: degenerative disc disease and obesity (in combination). (Tr. 16). The ALJ also determined that Plaintiff has the following non-severe impairments: hypertension, hyperlipidemia, esophageal reflux, lymphadenitis, episodic upper respiratory infections, episodic pharyngitis, episodic sinusitis, left foot injury, left breast mass with normal imaging, chest pain with normal cardiac testing, neurodermatitis, fatigue, diaphoresis, rib pain, and depression with anxiety. (Tr. 17-18). At Step Three, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 18-19).

         At Step Four, the ALJ found that Plaintiff possesses the residual functional capacity (RFC) to perform work at the light exertional level, as defined in 20 C.F.R. § 404.1567(b) and 20 CFR § 416.967(b), with the following limitations: "She can occasionally climb ladders, ropes, and scaffolds. She can frequently stoop and frequently crawl. She should never be exposed to unprotected heights or moving mechanical parts. She can occasionally be exposed to humidity and wetness and extreme cold." (Tr. 19).

         Based upon this RFC and relying on the testimony of a vocational expert (VE), the ALJ concluded that Plaintiff was unable to perform her past relevant work. (Tr. 24). The ALJ also acknowledged that Plaintiff was closely approaching advanced age at all times material to his decision. Id. However, at Step Five, the ALJ concluded that there were jobs that existed in significant numbers in the national economy that the Plaintiff could have performed, and that Plaintiff was not under a disability, as defined in the Social Security Act. (Tr. 24-25).

         C. Analysis

         Plaintiff advances three arguments in her Motion for Summary Judgment. (Doc. # 11-1). First, Plaintiff claims that the ALJ erred in assessing her credibility and discounting her subjective complaints. Id. at 4-7. Second, Plaintiff argues that the ALJ erred in weighing the medical opinion testimony. Wat 7-9. Specifically, Plaintiff contends that the ALJ should have given controlling weight to the opinions of her treating sources, Dr. Kiefer and Dr. Golden, and that the ALJ should not have given great weight to the opinions of non-examining sources, Dr. Conger and Dr. Perritt. Id. Third, Plaintiff generally alleges that the ALJ's decision "is not supported by substantial evidence because the ALJ's decision is not based on the entire record." Id. at 1. These arguments will be addressed in turn.

         1. The ALJ did not err in assessing Plaintiff's credibility.

         Although relevant to the RFC assessment, a claimant's description of his or her symptoms is not enough, on its own, to establish the existence of physical or mental impairments or disability. SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16, 2016). When evaluating a claimant's symptoms, the ALJ must determine whether there is an underlying medically determinable impairment that could be reasonably expected to produce the alleged symptoms. Id. Once that is established, the ALJ must "evaluate the intensity and persistence of ...


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