United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Sheila Dianne Killion, 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 20, 22], 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
filed applications for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”), alleging disability beginning in October
2015. [TR 203-213]. The claim was denied initially and upon
reconsideration. [TR 119, 89-89, 117-118]. Killion pursued
her claims at a hearing in front of an Administrative Law
Judge (“ALJ”) on April 26, 2017. [TR 36–
76]. ALJ Jerry Meade issued a decision on October 27, 2017,
denying Killion’s claims and finding that she was not
disabled, as defined under the Act. [TR 13-40]. The Appeals
Council denied review, making it the Commissioner’s
final decision for purpose of judicial review. [TR
1–5]. This appeal followed pursuant to 42 U.S.C. §
405(g). [DE 1]. Consistent with the Court’s Standing
Scheduling Order, [DE 10], the parties have submitted cross
motions for summary judgment, which are ripe for review. [DE
alleges onset of disability at 61 years of age. [TR 203]. She
has a GED and four years of college education, but no degree.
[TR 21]. Killion engaged in past relevant work as a maid and
a landscaper. [TR 32, 275].
claims disability as a result of numerous impairments,
including brain injuries related to a past car accident, as
well as impairments to her back, vision, speech, memory,
dizziness, thyroid, and stomach. [TR 203, 237]. At her
hearing, Killion testified that injuries to her head and back
currently keeping her from working. [TR 46, 47].
Specifically, Killion reports suffering injuries to her
brain, back, related to a car accident in October 2015. [TR
46, 47, 52-54]. She further claims having balancing issues,
anxiety, and a fear of walking up and down steps. [TR 54].
also testified that she spends most of her days laying down
on the bed, watching TV, and working puzzle books. [TR 59].
She takes care of her own house. [TR 60-61]. She further
reports having a driver’s license but not driving that
often due to anxiety and back problems. [TR 47]. She does go
out on small trips occasionally, including going to church
and the Post Office. [TR 58]. She also estimated that she
could lift no more than 10-15 pounds, which causes increased
back pain. [TR 55].
began her treatment with her primary care physician, Dr. Gary
Francis, D.O. in September of 2015. Subsequently, on October
21, 2015, Killion was involved in a single-car automobile
accident. [TR 332]. Killion was admitted to the Pikeville
Medical Center in an unresponsive state. [TR 329-33]. She was
diagnosed with chest trauma, multiple thoracic spine
fractures, and a traumatic brain injury. [Id.].
result of the accident, Killion was later transferred to
Baptist Health for additional care. At Baptist Health, she
treated for gait, mobility, and speech rehabilitation issues.
[TR 325-28, 334-47, 345-61, 339-45, 361-94, 639-69, 677-726].
addition to her accident-related care, Killion treated with
Dr. Francis for high blood pressure, low back pain, high
cholesterol, and balance issues. [TR 481-540, 568-75,
577-628]. Dr. Francis opined that Killion had a history of
traumatic brain injury, anxiety, fatigue, and alcohol abuse.
[TR 541]. Similarly, he claimed that Killion had very
impaired and limited memory and difficulty walking. [TR 727].
As a result, Dr. Francis concluded that Killion’s
impairments were disabling. [TR 541, 727].
Curtis Gale-Dyer, D.O., evaluated Killion in connection with
her disability application. [TR 451-53]. He noted that
Killion had no loss of musculoskeletal strength nor any
neurological deficits. [TR 453].
state agency physicians reviewed Killion’s medical
records. First, state agency physician, Allen Dawson, M.D.,
concluded that Killion’s records reflect that she could
perform the equivalent of a full range of medium work. [TR
74-75]. Second, state agency physician, Robert Culburtson,
M.D., reviewed Killion’s medical records and agreed
that she was not disabled but could perform the equivalent of
a full range of medium work. TR 99-101]. However, a physical
therapist concluded that Killion could perform less than a
full range of sedentary work. [TR 542-45].
William Rigby, Ph.D., evaluated Killion’s psychological
condition, diagnosing her with anxiety disorder. [TR 456-60].
He concluded that she had no limitations to her ability to
sustain concentration and persistence to complete tasks and
only moderate limitations in her ability to follow simple
instructions, maintain social interaction, and adapt to work
pressures. [TR 459-60].
agency psychologists reviewed Killion’s records. First,
state agency psychologist, R. Leon Jackson, Ph.D., reviewed
Killion’s records and concluded that she had only
non-severe mental impairments that did not significantly
affect her ability to perform basis work-related activities.
[TR 72-73]. Second, Dr. Ann Demaree, Ph.D., reviewed the same
records and concurred.
the hearing and considering all the evidence, the ALJ issued
his decision on October 27, 2017. [TR 13-40]. At Step One,
the ALJ determined that Killion has not engaged in
substantial gainful activity since October 21, 2015, the
alleged onset date. [TR 18]. At Step Two, the ALJ found that
Killion suffered from the following severe impairments:
degenerative disc disease of the lumbar spine; history of
thoracic spine fractures and traumatic brain injury
(“TBI”); anxiety; and alcohol abuse. [TR 18].
But, at Step Three, the ALJ found that none of those
impairments or combination or impairment met or medically
equaled the severity of any of the listed impairments. [TR
20–23]. In reaching this conclusion, ALJ Meade found
that Killion had not satisfied the criteria of Listings 1.00,
1.04, 11.00, 11.08, 11.18, 12.6, 12.02, 12.05, and 12.09.
[Id.]. Before proceeding to Step Four, the ALJ found
that Plaintiff had the residual functional capacity
(“RFC”) to perform medium work as defined in 20
C.F.R. §§ 404.1567(c), 416.967(c). Specifically,
the ALJ found Killion could perform the following tasks:
Limited to simple, routine, and repetitive tasks. She can
have only occasional changes in the work setting. She can
have no interaction with the public. She can have occasional
interaction with co-workers and supervisors.
then concluded, at Step Four, that Killion is capable of
performing past relevant work as a maid. [TR 32]. In
addition, the ALJ determined that given Killion’s age,
education, work experience, and RFC, “there are other
jobs that exist in significant numbers in the national
economy that the claimant also can perform.” [TR
32-33]. ALJ Meade based his conclusion on testimony from a
vocational expert (“VE”) that Killion could be
able to perform the requirements of occupations such as store
laborer (60, 000 jobs nationally), assembler ...