United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
L. Bunning United States District Judge
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
FACTUAL AND PROCEDURAL BACKGROUND
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).
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).
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
Overview of the Process
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).
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).
The ALJ's Determination
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).
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).
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).
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.
The ALJ did not err in assessing Plaintiff's
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 ...