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Brown v. Saul

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

January 7, 2020

JERI R. BROWN, Plaintiff,
v.
ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.

          MEMORANDUM OPINION & ORDER

          JOSEPH M. HOOD SENIOR U.S. DISTRICT JUDGE.

         Plaintiff, Jeri R. Brown, brings this matter under 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record and the motions filed by the parties, will AFFIRM the Commissioner's decision as no legal error occurred and it is supported by substantial evidence.

         I. STANDARD FOR DETERMINING DISABILITY

         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).

         To evaluate a claim of disability for Title II disability insurance benefit claims, an ALJ conducts a five-step analysis. Compare 20 C.F.R. § 404.1520 (disability insurance benefit claim) with 20 C.F.R. § 416.920 (claims for supplemental security income).[2] 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 past relevant work; and, if necessary, 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).

         II. PROCEDURAL AND FACTUAL HISTORY

         On February 18, 2015, the Plaintiff, Jeri R. Brown (“Brown” or “Plaintiff”) applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”), alleging disability as of August 31, 2014. [TR 562, 564]. Brown alleged she is disabled due to a number of physical impairments, including chronic obstructive pulmonary disease (“COPD”), high blood pressure, asthma, allergies, acid reflux, and a hernia. [TR. 599].

         Brown's applications for SSI and DIB were denied initially on April 29, 2015. [TR at 463-466]. Her applications were also denied on reconsideration on December 16, 2015. [TR 476-482]. Subsequently, on September 7, 2017, Brown appeared at an administrative hearing before Administrative Law Judge (“ALJ”), Kendra S. Kleber. [TR 289-331]. Brown was represented by an attorney at the hearing. [Id.].

         The ALJ issued a decision on February 28, 2018, denying Brown's claims and finding she was not disabled. [TR 38]. The Appeals Council denied review. [TR 1-3]. 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 11, 13].

         Brown alleges onset of disability in August 2014, when she was age 46. [TR 562]. Brown engaged in past relevant work as a gate guard and cashier. [TR 325, 600]. She has a high school education. [Id.].

         At the hearing, Brown reported that she stopped her past work activities when she was laid off because the mine, where she had been employed as a guard, shut down. [TR 294-295]. However, Brown testified that she would have quit working anyway as a result of her alleged COPD. [TR 295-303]. She testified that she would not have been able to work another week. [TR 374].

         Brown testified that she had not worked since the mine closed. [TR 303]. In particular, Brown stated that she cannot drive on dirt roads of be in restaurants because the smells and dust make it difficult for her to breath. [TR 304]. Ms. Brown requires a CPAP machine to sleep at night and sometimes during the day. [Id.]. She also uses a nebulizer and has inhalers, including an emergency inhaler. [TR 312].

         Ms. Brown did testify that she can breathe better when the weather is cooler but is still unable to work a cashier job because she is unable to stand for extended periods of time. [TR 304-5]. In particular, she states she has pain that shoots down her legs from her back, above the belt line, that would prevent her from working. [TR 305]. This shooting pain, Brown testified, is in both legs and goes up to the shoulder blades. [TR 306]. The pain throbs as well as shoots. [Id.]. She states this pain causes problems for her when she is sleeping or resting. [TR 308].

         For her pain, Ms. Brown takes muscle relaxers, has received steroid shots, is prescribed Ibuprofen, and has undergone physical therapy. [TR 309].

         Ms. Brown also claims to have sleep apnea. [TR 315]. As a result of her pain and sleep apnea, she reports that she only sleeps about four (4) hours per night.

         Ms. Brown also claims she has irritable bowel syndrome (“IBS”). [TR 316]. In addition, Brown testifies that she has problems with “nerves.” [TR 374]. In particular, she reports having depression and panic attacks about once per month. [TR 320]. She described her panic attacks as causing her to go dizzy and making her to feel short of breath. [Id.].

         A vocational expert (“VE”), Joyce Borris, also testified at the hearing. [TR 325-326]. The vocational expert explained that Brown had worked as a security guard and as a cashier. [Id.]. ...


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