United States District Court, W.D. Kentucky, Bowling Green Division
BETH E. PIPPIN PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge
the Court is the complaint (DN 1) of Beth E. Pippin
("Plaintiff") seeking judicial review of the final
decision of the Commissioner pursuant to 42 U.S.C. §
405(g). Both the Plaintiff (DN 15) and Defendant (DN 18) have
filed a Fact and Law Summary. For the reasons that follow,
judgment is granted for the Commissioner.
to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties
have consented to the undersigned United States Magistrate
Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of
judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed (DN 11). By Order
entered March 29, 2017 (DN 10), the parties were notified
that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was
October 10, 1996, Plaintiff filed an application for
Supplemental Security Income (SSI) benefits under Title XVI
of the Social Security Act (the Act) (Tr. 89). The state agency
denied Plaintiff's application at the initial and
reconsideration levels (Id.). Following an
administrative hearing on April 9, 1998, the Administrative
Law Judge issued a decision finding that Plaintiff was not
disabled (Id.). Plaintiff filed a request for review
of the Administrative Law Judge's decision
Plaintiff's request for review was pending before the
Appeals Council, she filed a subsequent application for SSI
on May 21, 1998 (Tr. 89). The state agency issued a favorable
determination in September 1998, finding that Plaintiff had
been disabled since May 21, 1998 (Id.). Thus,
Plaintiff became eligible for SSI benefits on June 1, 1998
December 21, 1999, the Appeals Council remanded
Plaintiff's October 10, 1996 application to an
Administrative Law Judge for further consideration (Tr. 89).
The remand order indicated that Plaintiff's award of
disability in her subsequent application was supported by
substantial evidence that amounted to new and material
evidence relating to the period at issue in the first
application (Id.). On remand, the Administrative Law
Judge considered the closed period between October 10, 1996
(the original alleged onset date) and May 31, 1998, the day
before Plaintiff became eligible for SSI (Id.). In a
decision dated June 16, 2000, the Administrative Law Judge
issued a favorable decision finding that Plaintiff was
entitled to SSI benefits between October 1996 and May 1998
(Tr. 89-93). More specifically, at the second step the
Administrative Law Judge found that Plaintiff had the
following severe impairments: degenerative joint disease, a
seizure disorder, a depressive disorder, and anxiety
disorder, borderline personality disorder, and borderline
intellectual functioning (Tr. 92). At the fourth step, the
Administrative Law Judge determined that Plaintiff had the
following residual functional capacity during the relevant
She was mildly limited in her ability to understand, retain,
and follow simple instructions. She had moderate difficulties
sustaining attention and concentration to perform repetitive
tasks. Her ability to relate to co-workers and others was
impaired. Her capacity to tolerate the stress and pressure of
daily work activity was moderately to severely impaired.
(Tr. 92-93). The Administrative Law Judge found that
Plaintiff was unable to perform the requirements of her past
relevant work during the relevant period (Tr. 93). At the
fifth step, the Administrative Law Judge considered
Plaintiff's age, education, past work experience, and
residual functional capacity (Id.). The
Administrative Law judge concluded due to Plaintiff's
non-exertional limitations she could not make an adjustment
to any work that existed in significant numbers in the
national economy during the relevant period and, therefore,
reached a finding of disabled under the medical-vocational
guidelines (Id.). However, Plaintiff reports that
her SSI benefits ceased in 2005 when her husband apparently
began receiving Disability Insurance Benefits (DIB) (DN 15
PageID # 1568 n. 1).
6, 2015, Plaintiff filed an application for DIB (Tr. 15,
285-86). Plaintiff alleged that she became disabled on
September 30, 2013, as a result of epilepsy, blood clot in
the right leg, migraine headaches, nerve damage in the head,
sleep apnea, fibromyalgia, back disorders, emphysema,
allergies, edema, acid reflux, abdominal pain, depression,
anxiety, panic attacks, and obesity (Tr. 15, 421-22).
Administrative Law Judge Candace A. McDaniel
("ALJ") conducted a video hearing from Louisville,
Kentucky (Tr. 15, 37-39). Plaintiff and her attorney, Richard
Burchett, participated from Bowling Green, Kentucky
(Id.). William R. Harpool also participated and
testified as an impartial vocational expert (Id.).
decision dated July 11, 2016, the ALJ evaluated this adult
disability claim pursuant to the five-step sequential
evaluation process promulgated by the Commissioner (Tr.
15-26). Notably, the ALJ found that Plaintiff met the insured
status requirements of the Social Security Act through
December 31, 2018 (Tr. 17). At the first step, the ALJ found
Plaintiff has not engaged in substantial gainful activity
since September 30, 2013 the alleged onset date
(Id.). Next, the ALJ determined that Plaintiff has
the following severe impairments: degenerative disc disease
of the cervical and lumbar spine; obesity; degenerative
osteoarthritis of the knees with a history of total
arthroplasty surgery bilaterally; a seizure disorder; a
depressive disorder; and an anxiety disorder (Id.).
Additionally, the ALJ found that Plaintiff's deep vein
thrombosis in the right leg, cholecystitis, hysterectomy, and
fibromyalgia are “non-severe” impairments (Tr.
17-18). At the third step, 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 Appendix 1 (Tr. 18). The ALJ specifically found that
plaintiff did not meet or medically equal the criteria for
listings 1.03, 1.04, 11.02, 11.03, 12.04, and 12.06 (Tr.
fourth step, the ALJ made the following finding with regard
to Plaintiff's residual functional capacity:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a range of sedentary work as
defined in 20 CFR 404.1567(a) in that the claimant can lift
and carry up to 10 pounds occasionally, lift and carry a
little less than 10 pounds such as 8 pounds frequently, sit
for six of eight hours, and stand or walk for three out of
eight hours; no more than occasional pushing and pulling with
the upper extremities as well as no more than occasional
pushing and pulling with the lower extremities; no climbing
of ladders, ropes, or scaffold [sic]; only occasional
climbing of ramps or stairs, occasional stooping, kneeling,
crouching, or crawling; able to balance when walking on level
ground but need to avoid uneven or slippery surfaces, and
would need to use a cane when ambulating for distances of
more than 10 or 15 feet; no exposure to hazardous work
settings including unprotected heights, operation of
machinery with open and exposed moving parts or gears that do
not stop with loss of human contact or control, no commercial
driving, and no exposure to large bodies of water; avoid
exposure to concentrate [sic] levels of vibrations, and
concentrated levels of fumes, odors, dusts, gases, poor
ventilation, wetness and humidity, and extreme temperatures
of cold or heat; is able to understand, remember and carry
out simple routine instructions; has adequate attention and
concentration for two hours [sic] over an eight hour workday,
interact with coworkers and supervisors frequently, with no
more than occasional contact with the public not incidental
to work activities, and is able to adapt to routine changes
in such a setting.
(Tr. 20). Relying on testimony from the vocational expert,
the ALJ found that Plaintiff is unable to perform any of her
past relevant work (Tr. 24).
proceeded to the fifth step where he considered Plaintiffs
residual functional capacity, age, education, and past work
experience as well as testimony from the vocational expert
(Tr. 25-26). The ALJ found that Plaintiff is capable of
performing a significant number of jobs that exist in the
national economy (Tr. 26). Therefore, the ALJ concluded that
Plaintiff has not been under a Adisability, " as defined
in the Social Security Act, from September 30, 2013 through
the date of the decision, July 11, 2016 (Id.).
timely filed a request for the Appeals Council to review the
ALJ's decision (Tr. 8-10). The Appeals Council denied
Plaintiffs request for review of the ALJ's decision (Tr.
by the Court is limited to determining whether the findings
set forth in the final decision of the Commissioner are
supported by “substantial evidence, " 42 U.S.C.
§ 405(g); Cotton v. Sullivan, 2 F.3d 692, 695
(6th Cir. 1993); Wyatt v. Sec'y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992), and whether
the correct legal standards were applied. Landsaw v.
Sec'y of Health & Human Servs., 803 F.2d 211,
213 (6th Cir. 1986). “Substantial evidence exists when
a reasonable mind could accept the evidence as adequate to
support the challenged conclusion, even if that evidence
could support a decision the other way.”
Cotton, 2 F.3d at 695 (quoting Casey v.
Sec'y of Health & Human Servs., 987 F.2d 1230,
1233 (6th Cir. 1993)). In reviewing a case for substantial
evidence, the Court “may not try the case de
novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Cohen v. Sec'y of
Health & Human Servs., 964 F.2d 524, 528 (6th Cir.
1992) (quoting Garner v. Heckler, 745 F.2d 383, 387
(6th Cir. 1984)).
previously mentioned, the Appeals Council denied
Plaintiff's request for review of the ALJ's decision
(Tr. 1-4). At that point, the ALJ's decision became the
final decision of the Commissioner. 20 C.F.R. §§
404.955(b), 404.981, 422.210(a); see 42 U.S.C.
§ 405(h) (finality of the Commissioner's decision).
Thus, the Court will be reviewing the decision of the ALJ,
not the Appeals Council, and the evidence that was in the
administrative record when the ALJ rendered the decision. 42
U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v.
Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir.
1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th
Commissioner's Sequential Evaluation Process
Social Security Act authorizes payment of Disability
Insurance Benefits and Supplemental Security Income to
persons with disabilities. 42 U.S.C. §§ 401 et seq.
(Title II Disability Insurance Benefits), 1381 et seq. (Title
XVI Supplemental Security Income). The term
“disability” is defined as an
[I]nability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a ...