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Penny v. Berryhill

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

December 20, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Gregory F. Van Tatenhove, United States District Judge.

         Richard Penny seeks judicial review of an administrative decision of the Commissioner of Social Security, which denied Penny's claim for supplemental security income benefits. Mr. Penny brings this action pursuant to 42 U.S.C. § 405(g), alleging various errors on the part of the ALJ considering the matter. The Court, having reviewed the record and for the reasons set forth herein, will DENY Mr. Penny's Motion for Summary Judgment [R. 10] and will GRANT the Commissioner's Motion for Summary Judgment [R. 12.]


         Plaintiff Richard Penny filed an application for Title XVI supplemental security income (SSI) on July 16, 2013, alleging disability beginning July 1, 2010. [Transcript (hereinafter, “Tr.”) 162.] Penny later amended his disability onset date to September 31, 2013. [Tr. 51.] Penny's claims were initially denied by an Administrative Law Judge and then denied again upon reconsideration. [See Tr. 14.] After requesting a hearing, Penny appeared and testified at a video hearing on September 9, 2015 in front of ALJ George M. Bock. [Id.] Vocational expert Jennifer Ruhnke also testified. [Id.] The ALJ issued a final decision ultimately denying Penny's claims for benefits. [See id.]

         Richard Penny was born on October 1, 1969. [R. 10 at 2.] He completed the ninth grade, and, while in school, Penny attend special education classes. [Tr. 187.] He lives alone in Harlan County, Kentucky, and has not worked since 2010. [R. 10 at 4; Tr. 187.] His employment history consists of sporadic manual labor, including working at a poultry factory in 1986 and for a construction company in 2010. [Tr. 187.]

         Mr. Penny alleges disability based on his limited education and pain in his left knee, back, and right shoulder. [R. 10 at 3.] Mr. Penny's amended disability onset date is the result of a car accident that occurred in September 2013. [See id.] Through the course of Penny's application for benefits, three different doctors examined him for physical impairments related to his pain. [See Tr. 272-76, 317-25, 327-28.] Generally, the physicians agreed that Penny suffered strains and sprains of his neck, back, and knee. [See id.] In February 2014, Penny was diagnosed with tears to his left anterior cruciate ligament and medial meniscus, for which he underwent arthroscopic surgery. [Tr. 331-36.] Following surgery, Penny was referred to physical therapy, which he attended only once. [See Tr. 353-57.]

         Related to Penny's mental impairments, physicians noted no significant signs of deficiencies. [See Tr. 273, 318, 322, 325, 347, 351.] In October 2013, Penny underwent a psychological evaluation. [See Tr. 304-10.] From that evaluation, the doctor diagnosed Penny with anxiety disorder, and determined Penny had moderate impairment “to understand, retain, and follow simple instructions, ” “to maintain social interactions with supervisors, friends, and the public, ” and “to adapt and respond to the pressures of day-to-day work activity.” [Tr. 309-10.]

         In evaluating a claim of disability, the ALJ conducts a five-step analysis. See 20 C.F.R. § 416.920. First, if a claimant is performing a substantial gainful activity, he is not disabled. 20 C.F.R. § 416.920(a)(4)(i). Second, if a claimant does not have any impairment or combination of impairments which is severe and meets certain durational requirements, he is not “disabled” as defined by the regulations. 20 C.F.R. §416.920(a)(4)(ii). Third, if a claimant's impairments meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is “disabled.” 20 C.F.R. § 416.920(a)(4)(iii). Before moving to the fourth step, the ALJ must use all the relevant evidence in the record to determine the claimant's residual functional capacity (“RFC”), which assesses an individual's ability to perform certain physical and mental work activities on a sustained basis despite any impairment experienced by the individual. See 20 C.F.R. § 416.920(a)(4); 20 C.F.R. §416.945. Fourth, the ALJ must determine whether the claimant has the RFC to perform the requirements of his past relevant work, and if a claimant's impairments do not prevent him from doing past relevant work, he is not “disabled.” 20. C.F.R. § 416.920(a)(4)(iv). Fifth, if a claimant's impairments (considering his RFC, age, education, and past work) prevent him from doing other work that exists in the national economy, the he is “disabled.” 20 C.F.R. § 416.920(a)(4)(v).

         Through step four of the analysis, “the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, the burden shifts to the Commissioner to identify a significant number of jobs that accommodate the claimant's profile, but the claimant retains the ultimate burden of proving his lack of residual functional capacity. Id.; Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008).

         In this case, at step one, the ALJ determined that Mr. Penny has not engaged in substantial gainful activity since the September 30, 2013, amended alleged onset date. [Tr. 17.] At step two, the ALJ found Penny to have the following “severe” impairments: mild cervical degenerative joint disease; status post ACL tear of the left knee with surgical repair; borderline intellectual functioning; and anxiety. [Id.] At step three, the ALJ found Penny's combination of impairments do not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App'x 1. [Tr. 18.] Before moving to step four, the ALJ considered the record and determined that Penny possessed the following residual functioning capacity:

[T]he claimant has the residual functioning capacity to perform medium work as defined in 20 CFR 416.967(c) but with the following nonexertional limitations: no kneeling, crawling, or climbing of ladders, ramps, or scaffolds and no crouching. He is limited to repetitive work which is imple (sic), routine, and unskilled. Such work activity also must not involve any complex instructions or detailed tasks. Further, he cannot have interaction with the general public.

[Tr. 19-20.] After explaining Penny's RFC, the ALJ found at step four that, based on this RFC, his age, education, and work experience, there are a “significant number[]” of jobs in the national economy that Penny can perform. [Tr. 25.] Accordingly, the ALJ found at step five that Mr. Penny has not been under a disability since his amended alleged onset date pursuant to 20 C.F.R. § 416.920(g).

         Following the unfavorable decision, Mr. Penny timely appealed to the Appeals Council. However, the Appeals Council denied review on August 29, 2016, and ...

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