United States District Court, E.D. Kentucky, Southern Division, London
JERI R. BROWN, Plaintiff,
ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY,  Defendant.
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
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
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. §
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). 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).
PROCEDURAL AND FACTUAL HISTORY
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].
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.
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].
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
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].
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].
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].
pain, Ms. Brown takes muscle relaxers, has received steroid
shots, is prescribed Ibuprofen, and has undergone physical
therapy. [TR 309].
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.
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.].
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.]. ...