United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE
Jonathan Phillips, 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, [DE 7; DE
9], filed by the parties, will AFFIRM the
Commissionerâs decision as no legal error occurred and it is
supported by substantial evidence.
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 an application for disability insurance benefits
(“DIB”), alleging disability beginning on March
11, 2015, the date he injured his back in a work-related
incident. [TR 198-199]. Phillips’s application was
denied initially and upon reconsideration. [TR 100-01].
Phillips then pursued his claims before an Administrative Law
Judge (“ALJ”) Dennis Hansen. [TR 39-57]. The ALJ
held the hearing on September 7, 2017. [TR 39]. The ALJ found
that Phillips suffered an impairment to his back that
rendered him disabled from the alleged onset date of March
11, 2015 through May 5, 2016, and that he was no longer
disabled. [TR 18-32]. The Appeals Council denied
Phillips’ request for review. [TR 1-5].
appeal followed pursuant to 42 U.S.C. § 405(g). [DE 1].
Consistent with the Court’s Standing Scheduling Order,
[DE 6], the parties have submitted cross motions for summary
judgment, which are ripe for review. [DE 7, 9].
alleges onset of disability at 27 years of age. [TR 198].
Phillips has a high school education. [TR 237].
Phillips’ engaged in past relevant work as a
maintenance worker at a school and as a
transporter/maintenance worker at a nursing home.
claims disability due to his work-related back injury, as
well as a learning disability and hearing problems. [TR 236].
At the hearing in front of the ALJ, Phillips testified that
he can only stand for about 10 minutes before needing to sit
down. [TR 41-51]. Phillips further testified that he can only
sit for approximately 10 minutes before needing to readjust
and he cannot lift 10 pounds. [Id.].
testified that he lives at home with his wife and daughter.
[TR 42]. Phillips further testified that he does not go to
the grocery store, nor is he able to help with chores around
the house. [Id.]. However, he did testify that he is
able to drive “every now and then[.]” [TR 43]. To
find relief, Phillips claims that has to lay down about 6
times a day for about an hour each time. [Id.].
Phillips testified that he also uses ice packs, which help
some with relieving pain. [TR 47].
March 2015, Phillips went to the ER with complaints of back
pain after falling off a ladder several days prior. [TR
389-95]. Upon March and April follow-up appointments with Dr.
Dahhan, M.D. On April 10, 2015, Phillips submitted to an MRI
examination, which revealed disc protrusion contributing to
severe central stenosis. [TR 397-431, 447-51, 581-82]. As a
result, Dr. Dahhan recommended that Phillips not lift over
twenty-five pounds for several months, but advised that
Phillips could return to light work. [TR 541].
followed up with Dr. William Brooks throughout the rest of
2015 and early 2016. [TR 444-47. 543-61]. In January of 2016,
Phillips underwent a bilateral discectomy at L4-L5. [TR
497-524]. Following surgery, Phillips undertook physical
therapy. [TR 570-846, 880-81].
Brooks recommended Phillips not work until a functional
capacity evaluation (“FCE”) had been done. [TR
543]. He subsequently recommended that Phillips undergo such
an evaluation, which Phillips did. [TR 850-61]. The FCE
occurred on May 6, 2016. Thereafter, Dr. Brooks concluded
that Phillips had reached maximum medical improvement
(“MMI”) as of the date of the FCE, had a whole
person impairment of thirteen (13%) percent, and could
perform sedentary work. [TR 541]. Following the FCE, Phillips
continued to follow-up with complaints of low back and leg
pain. [TRE 935-51, 973-76, 980-83]. A state agency doctor,
Diosdado Irlandez concluded that Phillips could carry 20
pounds occasionally and 10 pounds frequently; stand and walk
two hours in an eight-hour workday; sit six hours;
occasionally use his legs; occasionally crawl, stoop, and
climb ramps and stairs, frequently kneel and crouch; never
climb ladders, ropers, or scaffolds; and should avoid even
moderate exposure to vibration and all exposure to hazards.
addition to his issues with his back, Phillips also sought
treatment related to his psychological condition. In
particular, Phillips received an evaluation from Dr. William
Rigby, Ph.D., who diagnosed Phillips with anxiety, and had
mild mental work-related limitations. [TR 911-16]. Dr. Rigby
opined that Phillips psychological impairments area likely to
continue indefinitely. [Id.].
addition to Dr. Rigby, Kirstin Bailey, Ph.D., a state
psychologist, also reviewed Phillips’ medical records
and concluded they were not severe. [TR 89-92]. Another
psychologist, Dan Vandivier, Ph.D., concurred with Dr.
Bailey’s conclusion. [TR 110-113].
the hearing and considering all the evidence, the ALJ issued
his decision on December 7, 2017. [TR 33]. At Step One, the
ALJ determined that Phillips had not engaged in substantial
gainful activity since March 11, 2015. [TR 22].
Two, the ALJ found that from March 11, 2015 through May 4,
205, the period during which the Phillips was under a
disability, Phillips suffered from the following severe
impairments: obesity, lumber degenerative disc disease, and
borderline intellectual functioning. [TR 22]. The ALJ also
found that Phillips suffered the following acute conditions,
all of which lasted less than twelve months: otitis media,
allergic rhinitis, and gastritis. [Id.].
noted that Phillips was diagnosed by Dr. Rigby with anxiety
disorder, but Phillips did not meet the full diagnostic
criteria for the condition. [Id.]. As a result, the
ALJ found that Phillips anxiety was not a severe impairment
within the meaning of the applicable regulations.
Three, the ALJ found that from March 11, 2015 through May 5,
2015, the claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of
any of the listed impairments. [TR 22]. In reaching this
conclusion, the ALJ found that Phillips had the following
degree of limitation in functioning: moderate limitation in
understanding, remembering, or applying information; a
moderate limitation in interacting with others; a moderate
limitation in concentrating, persisting, or maintaining pace;
and a moderate limitation in adapting or managing oneself.
[Id.]. The ALJ further found that that
Phillips’ mental impairments had not changed during any
time relevant to the decision. [TR 22].
proceeding to Step Four, the ALJ found that Phillips had the
residual functional capacity (“RFC”) to perform
sedentary work as defined in in 20 C.F.R. § 404.1567(a).
[TR 23]. Specifically, the ALJ found Plaintiff could perform
the following tasks:
The opportunity to change positions from sitting to standing
and vice versa every ten minutes; could occasionally climb
ramps and stairs; could occasionally stoop, kneel, crouch, or
crawl; could occasionally push and pull with lower
extremities; should avoid exposure to vibration; could never
climb ladders, ropes, or scaffolds; could never be exposed to
unprotected heights or dangerous moving machinery; could
perform work where the requirements do not exceed a 7th grade
arithmetic and 4th grade reading ability; could understand
and remember simple instructions; could sustain attention and
concentration to complete simple tasks with regular breaks
every 2 hours; could have ...