United States District Court, E.D. Kentucky, Southern Division, London
VICKY L. PHIPPS, Plaintiff,
ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY,  Defendant.
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
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
STANDARD FOR DETERMINING DISABILITY
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).
PROCEDURAL AND FACTUAL HISTORY
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].
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].
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].
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
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].
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].
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].
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].
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.”
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].
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].
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].
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
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.]
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