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McHone v. Berryhill

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

September 11, 2018

DEBRA MCHONE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Debra McHone (“the Claimant” or “McHone”)) and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 1');">11');">1 and 1');">13] McHone contends that the administrative law judge (“ALJ”) assigned to her case erred in denying her application for Supplemental Security Income (“SSI”) and widows' benefits because some of her ailments were not categorized as “severe.” [Record No. 1');">11');">1, 1');">1-2] McHone further argues that the ALJ did not properly weigh the medical evidence. Id. at 1');">1. She requests that the Court enter an award of benefits or, alternatively, remand the matter for a new administrative hearing. Id. at 1');">12. The Commissioner contends that the ALJ's decision is supported by substantial evidence and should be affirmed. [Record No. 1');">13]

         For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief sought by McHone.


         McHone filed an application for Title XVI SSI and Title II Widow's Insurance Benefits on June 1');">19, 201');">14. [Administrative Transcript, “Tr.” 901');">1, 907] She originally claimed a disability onset date of October 31');">1, 201');">11');">1. [Tr. 723, 91');">14] McHone later amended her onset date to June 9, 201');">14. [Tr. 1');">12, 726] The Social Security Administration (“SSA”) denied her application initially and upon reconsideration. [Tr. 828, 851');">1] McHone then requested a hearing before an ALJ. [Tr. 858]

         ALJ Kendra Kleber issued a written opinion following the administrative hearing, finding that McHone was not disabled. [Tr. 9-21');">1] The Appeals Council subsequently denied McHone's request for review. [Tr. 1');">1-4] Accordingly, McHone has exhausted her administrative remedies and this matter is ripe for review under 42 U.S.C. §§ 405(g), 1');">1383(c)(3).


         McHone was 53 years-old at the time of the ALJ's decision. [Tr. 724] She last worked in October 201');">11');">1 as a cashier at a Speedway convenience store. [Tr. 733] McHone did not complete high school but later obtained a General Equivalency Diploma. [Tr. 932]

         McHone was diagnosed prior to her alleged onset disability date with several ailments including asthma, fibromyalgia, depression, anxiety, and chronic obstructive pulmonary disease. [Tr. 1');">1, 473] McHone complained of hip pain both before and after her alleged onset date. [See, e.g., Tr. 1');">1, 472, 1');">1, 624, 2, 062, 2, 1');">190, 2, 256.] She also complained of back and leg pain in 201');">16. [Tr. 2, 047] Doctors Michael Yonz and Ryan Cassidy at the University of Kentucky Department of Orthopaedic Surgery diagnosed her with lumbar disc space narrowing and in June of 201');">16 doctors performed lumbar fusion surgery. [Tr. 2, 047, 2, 072- 2, 1');">104] McHone was advised that she should not to lift items weighing more than ten pounds for a period of six weeks following this surgery. [Tr. 2, 096] McHone told Physician's Assistant Melissa Hubert and Cassidy (UK Healthcare) on June 28, 201');">16, that she was having left-side low back pain and left buttock pain, but that it was a “nuisance and not truly painful.” [Tr. 2, 1');">191');">1] Hubert and Cassidy noted during a follow-up visit on July 1');">18, 201');">16, that the Claimant's back and leg pain had improved, but that she had developed restless leg syndrome. [Tr. 2, 1');">183]

         McHone also complained of headaches following the June 201');">14 alleged onset date. [See, e.g, Tr. 2, 1');">182, 2, 200, 2, 248.] An MRI was performed on November 1');">11');">1, 201');">14, and the impression showed no new or acute intracranial abnormalities. [Tr. 1');">1, 526] McHone indicated during an examination on August 22, 201');">16, that she believed the headaches had worsened since her back surgery due to a lack of sleep. [Tr. 2, 200]

         McHone was seen by doctors on November 22, 201');">16, due to complaints of foot pain, hip pain, shoulder pain, arthritis, migraines, and restless leg syndrome. [Tr. 2, 256] They assessed foot pain, arthritis, migraines, and restless leg syndrome. [Tr. 2, 267] Based on the doctors' notes, hip pain was not assessed but a physical exam noted tenderness in the shoulder and no joint swelling. [Tr. 2, 262] The doctors planned to place her back on naproxen because “her pain was well controlled on this regime.” [Tr. 2, 267] They also provided a podiatry and neurology referral. [Tr. 2, 267] Further, McHone was counseled regarding a low-fat diet and exercise. [Tr. 2, 269]

         McHone met with Jennifer Fishkoff, Psy. D., prior to the administrative hearing. [Tr. 1');">1, 61');">12-1');">1, 61');">18] Dr. Fishkoff performed a psychological consultative examination on September 23, 201');">14, and concluded that McHone suffered from major depressive disorder, pain disorder secondary to a general medical condition and psychological factors, and r/o PTSD mild. [Tr. 1');">1, 61');">17] She also found that McHone presented with “average to low average intellect. Her judgment, insight, reasoning abilities, general knowledge, attention/concentration and recall were within normal limits.” [Id.] Based on her mental status, McHone's “ability to tolerate frustration, conform to social standards, [and] maintain employment [were] moderately impaired.” [Id.] Dr. Fishkoff also noted that McHone's “ability to understand, retain, and follow instructions [was] within the normal limits. Her ability to sustain attention to perform simple and repetitive tasks as would be required over an eight-hour workday [was] moderately impaired given her pain and medical problems.” [Tr. 1');">1, 61');">18] Dr. Fishkoff concluded that McHone “does not appear to be capable of tolerating the stress and pressures associated with day-to-day work activity.” [Id.]

         Bryan Pack, Psy. D., reviewed McHone's medical records in October 201');">14. [Tr. 755-785] He explained that McHone could “understand, retain, and carry out simple instructions. [She could] consistently and usefully perform routine tasks of a sustained basis, with minimal (normal) supervision, and can cooperate effectively with the public and co-workers in completing simple tasks and transactions. [She] is able to adequately adapt to changes and demands of simple tasks.” Dr. Pack noted that McHone was moderately limited in her ability to understand, remember, and carry out detailed instructions and her ability to maintain attention and concentration for extended periods. [Tr. 784] He also determined that the Claimant was moderately limited in her “ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods” and in her ability to interact appropriately with the public. [Id.] Dr. Pack concluded that beyond these limitations McHone's “functional restrictions beyond levels assessed above are not considered attributable to [McHone's] mental illness.” [Tr. 785]

         Jack Reed, M.D., reviewed McHone's medical records in January 201');">15 and rendered an opinion regarding McHone's physical abilities. [Tr. 792-805] He determined that McHone was not disabled. [Tr. 808] Dr. Reed concluded that McHone could occasionally lift twenty pounds and frequently lift ten pounds, could stand or walk about six hours of an eight-hour work day, and could sit for about six hours of an eight-hour work day. [Tr. 802-803] He also explained that she was limited in her upper extremities to push or pull. [Tr. 803] Reed stated that the Claimant could ...

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