United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
Mark Anthony Kruempelman, seeks judicial review pursuant to
42 U.S.C. § 405(g), of an administrative decision of the
Commissioner of Social Security ("Commissioner")
denying her application for Disability Insurance Benefits
("DIB"). For the reasons stated herein, the Court
will deny Kruempelman's Motion for Summary Judgment [R.
11], and grant that of the Commissioner [R. 13].
filed his application for benefits in March 2014 alleging
disability beginning in August 2007 due to multiple physical
impairments. [Tr. 210.] His application was denied initially
and upon reconsideration. [Tr. 120-27; 136-42.] Kruempelman
timely requested a hearing before an administrative law judge
(ALJ). [Tr. 145-46.] That hearing took place before Judge
Peter J. Boylan on August 30, 2016. [Tr. 86.]
was fifty-eight years old on the date of the hearing. [Tr.
92.] He was last insured in December 2012, at which time he
was fifty-four years old. [Tr. 103.] Kruempelman has an
eleventh-grade education and his past work experience
includes working at the same restaurant from 1992 to 2007.
[Tr. 223.] Kruempelman alleges disability from a variety of
physical impairments, including depression, diabetes, back
and shoulder pain, and partial removal of his pancreas. [Tr.
232.] In September 2003, Kruempelman underwent what is known
as a "whipple procedure" to remove a portion of his
pancreas. [Tr. 317.] He was bedridden for a time following
the surgery and his weight dropped down to 106 pounds. [Tr.
317.] By April 2004, however, Kruempelman had returned to
restaurant work. [Tr. 326.] At the hearing before Judge
Boylan, Kruempelman indicated he was initially able to work
full time post-surgery, but eventually had to reduce his
hours before stopping altogether in August 2007 due to
"weakness." [Tr. 95.] Despite his physical
ailments, Kruempelman is still able to do some light work
around his home. [Tr. 98.] Additionally, Kruempelman noted at
the hearing that his diabetes is well-controlled. [Tr. 95.]
evaluating a claim of disability, the ALJ conducts a
five-step analysis. See 20 C.F.R. §
404.1520.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, then 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." 20 C.F.R. § 404.1520(d). 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
impairments 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 clamant 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). The plaintiff has the ultimate burden of
proving compliance with the first four steps. Kyle v.
Comm'r Of Soc. Sec, 609 F.3d 847, 855 (6th Cir.
2010). 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).
case, the ALJ issued his written decision on September 26,
2016. [Tr. 7-16.] At Step 1, the ALJ found that Kruempelman
had not engaged in substantial gainful activity during the
time period from his alleged onset date of August 1, 2007,
through is date of last insured of December 31, 2012. [Tr.
12.] At Step 2, the ALJ found that Kruempelman had the
following severe impairments: "degenerative disc
disease, diabetes mellitus, hypertension, gastro esophageal
reflux disease, and affective disorder." Id.
However, the ALJ concluded that, through the date of last
insured, Kruempelman did not have an "impairment or
combination of impairments that significantly limited the
ability to perform basic work-related activities for 12
consecutive months." Id. Therefore, the ALJ
concluded that Kruempelman "did not have a sever
impairment or combination of impairments" and so was not
disabled. Id. The analysis did not continue to Step
3. Kruempelman now seeks judicial review in this Court.
Court's review is 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]
decisionmakers can go either way, without interference by the
courts." Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (en banc) (quoting Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
determining the existence of substantial evidence, 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) (citation omitted); 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 supports
the opposite conclusion. See Ulman, 693 F.3d at 714;
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Her v. Comm 'r o/Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
now argues that the Commissioner's decision "was not
supported by substantial evidence" [R. 11 at 5.] More
specifically, Kruempelman asserts that the ALJ erred by not
finding pancreated insufficiency a severe impairment.
argues that the ALJ's decision is not supported by
sufficient evidence because, although the ALJ considered
Kruempelman's pancreatic surgery, he "fails to
account for Plaintiffs weight loss due to pancreatic
insufficiency." The record clearly reflects that
Kruempelman underwent a whipple procedure in 2003. [Tr. 12.]
Immediately following the procedure, "Plaintiff was
bedridden and lost a considerable amount of weight." [R.
11 at 6.] Despite taking digestive enzymes, Kruempelman has
been unable to maintain a healthy weight as measured by BMI.
Id. According to Kruempelman, his weight issues
after surgery indicate that he "clearly suffers from
pancreatic insufficiency resulting in weight loss."
Id. Pancreatic insufficiency is recognized in the
Listing of Impairments. [Id.; 20 C.F.R. § 404,
Appendix 1 to Subpart P.] What's more, Kruempelman's
BMI is at a listing level. [R. 11 at 7.]
to Kruempelman's assertion, the ALJ makes note of his
generally low BMI. [Tr. 14.] However, the Listings cited by
Kruempelman are a tool intended to be used at Step 3 of the
ALJ's 5-Step decision making process. [Tr. 14-15.] At
Step 2 of his analysis, the ALJ found that "the
claimant's medically determinable impairments could have
been reasonably expected to produce the alleged symptoms;
however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the . . . evidence in the
record." [Tr. 13.] In support of this conclusion, the
ALJ cites instances in the record where Kruempelman reported
his back pain was "stable," and medical records
showing that Kruempelman's diabetes was well-managed.
[Tr. 14.] Additionally, the ALJ relied on the evidence that
Kruempelman returned to full-time work following surgery for
a number of years before ceasing altogether as evidence that
he was not severely impaired following his pancreas surgery.