United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE JUDGE
Kennon seeks judicial review of an administrative decision of
the Commissioner of Social Security, which denied her claim
for supplemental security income and disability insurance
benefits. Ms. Kennon 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 Ms. Kennon's Motion for Summary
Judgment and GRANT the Commissioner's.
Emma Kennon initially filed an application for Title II
disability insurance benefits on February 16, 2012, alleging
disability beginning on November 4, 2009. [Transcript
(hereinafter, “Tr.”) 72.] Administrative Law
Judge Christopher R. Daniels denied this request on June 14,
2013. Tr. 69-80. The Appeals Council denied Ms. Kennon's
request for review on August 29, 2014. Id. at 23.
Thereafter, Ms. Kennon did not petition for further review,
making the decision on June 14, 2013, final. Id. On
October 2, 2014, Ms. Kennon filed a second application for
Title II disability insurance benefits, alleging disability
beginning February 15, 2011. Id. However, because
the previous decision by ALJ Daniels was binding, the ALJ
Roger L. Reynolds modified Ms. Kennon's date of alleged
onset to June 15, 2013, pursuant to the doctrine of res
judicata. Id. On June 15, 2016, ALJ Reynolds
returned another unfavorable decision for Ms. Kennon.
Id. She requested review from the Appeals Council
who denied this request. Id. at 1.
evaluate a claim of disability for Title II disability
insurance benefit claims, an ALJ conducts a five-step
analysis. Compare 20 C.F.R. § 404.1520
(disability insurance benefit claim) with 20 C.F.R.
§ 416.920 (claims for supplemental security
income). First, if a claimant is performing a
substantial gainful activity, he is not disabled. 20 C.F.R.
§ 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly
limit his physical or mental ability to do basic work
activities, he does not have a severe impairment and is not
“disabled” as defined by the regulations. 20
C.F.R. § 404.1520(c). 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.” C.F.R. § 404.1530(d). Before
moving on to the fourth step, the ALJ must use all of the
relevant evidence in the record to determine the
claimant's residual functional capacity (RFC), which
assess an individual's ability to perform certain
physical and metal work activities on a sustained basis
despite any impairment experienced by the individual.
See 20 C.F.R. § 404.1520(e); 20 C.F.R. §
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.
§ 404.1520(e). 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, then he is “disabled.” 20 C.F.R. §
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).
outset of this case, the ALJ determined that Ms. Kennon met
the insured status requirements of the Social Security Act
through December 31, 2014. Tr. 26; see also 20
C.F.R. § 404.131. Then at step one, the ALJ found Ms.
Kennon had not engaged in substantial gainful activity since
the alleged disability onset date, June 15, 2013. Tr. 26. At
step two, the ALJ found Ms. Kennon to suffer from the
following severe impairments: major depressive disorder,
generalized anxiety disorder, post-traumatic stress disorder
(PTSD), chronic obstructive pulmonary disease, and plantar
fibromatosis. Id. At step three, the ALJ determined
her combination of impairments did not meet or medically
equal one of the listed impairments in 20 C.F.R. Part 404 or
Part 416. Id. at 29. Before moving on to step four,
the ALJ considered the record and determined that Ms. Kennon
possessed the following residual functioning capacity:
[Ms. Kennon] had the residual functional capacity to perform
light work as defined in 20 C.F.R 404.1567(b) except no
climbing of ropes, ladders or scaffolds and only occasional
climbing of stairs or ramps. She can perform occasional
balancing, stooping, kneeling, crouching, or crawling. She is
precluded from aerobic activities such as running or jumping.
She cannot work with hands over the head. There can be no
operation of foot pedal controls; no exposure to concentrated
dust, gases, smoke, fumes, temperature extremes, excess
humidity, concentrated vibration, or industrial hazards. She
requires entry level work with simple, repetitive procedures.
She can tolerate only occasional changes in work routines and
should work in an object oriented, non-public environment
with only occasional and casual contact with coworkers,
supervisors, or the general public.
Id. at 29-30. After explaining the RFC, the ALJ
found at step four that, based on her RFC, age, education,
and work experience, Ms. Kennon was not capable of performing
past relevant work as a machine operator and factory
assembler, but was capable of performing other jobs existing
in the national economy. Id. at 31-32. Accordingly,
the ALJ found at step five that Ms. Kennon was not disabled
from June 15, 2013, through the date last insured, pursuant
to 20 C.F.R. §§ 404.1520(f). Id. at 33.
Ms. Kennon filed this action for review on October 13, 2017.
Court's review is generally limited to whether there is
substantial evidence in the record to support the ALJ's
decision. 42 U.S.C. § 405(g); Wright v.
Massanari, 321 F.3d 611, 614 (6th Cir. 2003);
Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir.
1987). “Substantial evidence” is “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) (citing Richardson v. Perales, 402
U.S. 389, 401 (1971)). The substantial evidence standard
“presupposes that there is a zone of choice within
which [administrative] decision makers can go either way,
without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
determine whether substantial evidence exists, courts must
examine the record as a whole. Cutlip, 25 F.3d at
286 (citing Kirk v. Sec'y of Health & Human
Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert.
denied, 461 U.S. 957 (1983)). However, a reviewing court
may not conduct a de novo review, resolve conflicts
in the evidence, or make credibility determinations.
Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012); see also Bradley v. Sec'y of Health
& Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988).
Rather, if the Commissioner's decision is supported by
substantial evidence, it must be affirmed even if the
reviewing court would decide the matter differently, and even
if substantial evidence also ...