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Kennon v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

March 26, 2018

EMMA KENNON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner Of Social Security, Defendant.



         Emma 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.



         Plaintiff 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.

         To 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).[1] 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. § 404.1545.

         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. § 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. § 404.1520(f).

         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).

         At the 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. [R. 1.]


         The 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. 1984)).

         To 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 ...

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