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Killion v. Saul

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

September 24, 2019



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

         Plaintiff, 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 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).


         Plaintiff 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 20, 22].

         Killion 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].

         Killion 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].

         Killion 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].

         Killion 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.].

         As a 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].

         In 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].

         Dr. 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].

         Two 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].

         Dr. 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].

         Two 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.

         After 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.

[TR 23].

         The ALJ 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 ...

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