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Phipps v. Saul

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

September 24, 2019

VICKY L. PHIPPS, Plaintiff,


          Joseph M. Hood Senior U.S. District Judge.

         Plaintiff, Vicky L. Phipps (“Phipps”) brings this matter under 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Acting Commissioner of Social Security. [DE 1]. The Court, having reviewed the record and the motions filed by the parties, [DE 10, 12], will AFFIRM the Commissioner’s decision as no legal error occurred and it is supported by substantial evidence.


         Under the Social Security Act, a disability is defined as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In determining disability, an Administrative Law Judge (“ALJ”) uses a five-step analysis. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). Step One considers whether the claimant is still performing substantial gainful activity; Step Two, whether any of the claimant’s impairments are “severe”; Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform his past relevant work; and Step Five, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. Id.; see also Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).


         In 2013, Phipps applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and Title XVI of the Social Security Act. [TR 277, 284]. Her application alleged that she had become disabled as of August 14, 2007. [TR 277, 284, 316, 319]. Both of Phipps’ application were initially denied. [TR 147]. Phipps was denied again upon reconsideration. [TR 169]. Ms. Phipps then filed a request for a hearing before an Administrative Law Judge (“ALJ”), which took place on July 19, 2016. [TR 60-69]. That hearing was continued until December 22, 2016. [TR 33-60]. The ALJ, Christine Cooke, rendered a partially favorable decision. [TR 11-32]. The Appeals Council denied review on February 23, 2018. [TR 8-10].

         ALJ Cooke found that Phipps was not disabled prior to February 6, 2014, but that she became disabled on that date. [TR 13-24]. The Appeals Council denied review, [TR 1–4], rending the ALJ’s decision final under 20 C.F.R. § 404.981. This appeal followed pursuant to 42 U.S.C. § 405(g). Consistent with the Court’s Standing Scheduling Order, the parties have submitted cross motions for summary judgment, which are ripe for review. [DE 10, 12].

         Phipps alleges onset of disability of August 2007, when she was 41 years of age. [TR 277, 284, 316, 319]. Phipps has a GED, and past relevant work as a gas station manager, a skilled, medium-exertion job. [TR 47-48, 320-21, 332]. Phipps stopped working in 2007 due to her pregnancy. [TR 48-49, 320].

         Phipps claims she became disabled in 2007 due to a variety of physical and mental impairments. [TR 48-49, 320]. In particular, she claims that suffers from carpal tunnel syndrome, failed back syndrome, and multiple sclerosis. [TR 41-41, 44].

         In January 2014, a lower back x-ray revealed minimal degenerative changes and no spondylosisthesis noted. [TR 1014-15]. However, a lower back MRI study on February 6, 2014 revealed a bulging disc encroaching on the spinal canal and neural foramina. [TR 971-72].

         In March 2014, Dr. Joseph Childs, observed that Phipps had an abnormal straight leg raise test. [TR 961]. Phipps then saw Dr. Joel Norman, M.D., complaining of intermittent sciatic pain that worsened the prior year. [TR 966-67]. Upon follow-up, Dr. Norman noted similar findings. [TR 997, 1084].

         In May 2014, a state agency doctor, Sudhideb Mukherjee, M.D., evaluated Phipps’s physical abilities, concluding that she had the ability to perform light work. [TR 82-82]. He further indicated that Phipps did not meet or medically equal disabling impairment. [Id.]. Those conclusions were independently reviewed by Dr. P. Saranage, M.D., who concurred. [TR 108, 120-123].

         In June 2014, Dr. Norman performed low back surgery on Phipps. [TR 1105-07]. Phipps underwent another MRI in August of 2014, which showed post-surgical changes, but did not show any significant disc bulge, spinal canal narrowing, or narrowing or neural foramina. [TR 1178-79]. Dr. Norman opined that nothing in the MRI is consistent with Phipps’ pain. [TR 1254]. A follow-up MRI in September 2014 showed no significant changes. [TR 1180-81].

         Later that month, Phipps underwent a surgical revision to remove some scar tissues. [TR 1224-25]. She initially reported improvement in her pain. However, later in the year, Phipps continued to report persistent lower back pain, despite that fact that all the objective studies “reveal[ed] no evidence of neurologic compression, [and] stable appearance of the hardware with no complications or malalignment.” [TR 1245].

         In 2015, Phipps began pain management with Dr. James Choo, M.D. [TR 1235-39]. However, Phipps was able to heel-and-toe walk, and straight leg raise. [TR 1237]. Despite this, Dr. Choo performed several spinal injections. [TR 1202, 1234].

         In June 2015, Phipps underwent a lower back CT scan. [TR 1200-1, 1243]. The scan revealed mild narrowing at the neural foramina, but which were noncompressive. [TR 1243].

         Phipps treated with two nurse practitioners: Sherri Robertson and Amy Goodin. Goodin observed a normal gait and abnormal leg raise. [1465-66]. Robertson recorded irregular gait, but, like Goodin, recorded abnormal legal raises. [TR 1459, 1462, 1469, 1473, 1477, 1481, 1501, 1506, 1509, 1512].

         On December 22, 2016, Ms. Phipps testified at the hearing. Ms. Phipps reports living at home with her husband and eight-year old twins. [TR 47]. She testified that she is capable of driving. [TR 47]. Phipps testified that she gets up in the morning before her daughters, and that they get ready on their own. [TR 53]. She further reports that she sometimes requires them to help her get dressed. [TR 53]. However, on other occasions she helps them dress. [Id.]. Phipps further reports that she can make her children breakfast and does drive them to school. [TR 53]. Phipps will then return home and lay down because of the pain in her back. [TR 53-54].

         Phipps admitted that she has never had mental health treatment for anxiety or depression nor was she in the process of seeking such treatment. [TR 51]. She does take Valium. [Id.]

         After the hearing and considering all the evidence, the ALJ issued his decision on February 17, 2017. [TR 11-32]. At Step One, the ALJ determined that Phipps has not engaged in substantial gainful ...

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