Burton v. SSA
MEMORANDUM OPINION AND ORDER: (1) Commissioner's 14 Motion for Summary Judgment is GRANTED. (2) Pla's 12 Motion for Summary Judgment is DENIED. (3) The administrative decision is AFFIRMED by separate Judgment entered this date. Signed by Judge Danny C. Reeves on April 19, 2017. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NANCY A. BERRYHILL, Acting
Commissioner of Social Security1,
Civil Action No. 5: 16-377-DCR
This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Harry Burton (“Burton”) [Record No. 12] and Defendant Nancy A. Berryhill,
Acting Commissioner of Social Security (“the Commissioner”). [Record No. 14] The
Commissioner’s motion will be granted and the relief that Burton seeks will be denied for the
reasons that follow.
Burton filed an application for disability insurance benefits (“DIB”) on August 20,
2013, alleging a disability onset date of February 8, 2009. [Tr. 303] Burton’s claim was denied
initially and on reconsideration. [Tr. 248, 256] He then requested an administrative hearing,
which Administrative Law Judge (“ALJ”) Bonnie Kittinger held on April 23, 2015. [Tr. 155,
263] The ALJ ultimately determined that Burton was not disabled from the alleged onset date
Nancy A. Berryhill is now the Acting Commissioner of Social Security and is
substituted as the defendant in this action pursuant to Rule 25(d) of the Federal Rules of Civil
through the date that Burton was last insured (September 30, 2014). [Tr. 149] Burton’s request
for review by the decision from the Appeals Council was denied. [Tr. 1] The matter is ripe
for review pursuant to 42 U.S.C. § 405(g).
Burton was 50 years old on September 30, 2014, the date on which he last met the
insured status requirements of the Social Security Act (“Act”). [Tr. 303, 317] He has a high
school equivalent education and past employment experience as a parts deliverer, maintenance
man, forklift operator, assembly worker, and construction worker. [Tr. 322, 323] Burton
alleges that he is disabled due to diabetes, neuropathy, depression, high blood pressure, high
cholesterol, and back injuries. [Tr. 321]
Burton underwent lumbar fusion surgery in May 2012. He reported that he was doing
well following the surgery during a post-operative visit with surgeon Dr. Steven Glassman in
August 2012 and no longer had the significant back and leg pain that he had prior to the
operation. [Tr. 547] Burton further indicated that he was “generally tolerating activities well.”
[Id.] Although Burton did not feel that he would be able to return to construction work, he did
anticipate being able to work at something “medium duty,” which “ma[de] sense” to Dr.
Glassman. [Id.] Dr. Glassman further reported that Burton had full strength in all muscle
groups and normal reflexes. [Tr. 549] Dr. Glassman concluded that Burton could lift 40
pounds but that he should avoid repeated stooping and bending. [Id.]
Dr. Joseph Lukins treated Burton for right shoulder pain in October 2013. [Tr. 744]
Burton reported right shoulder pain and tingling and numbness in his hand. [Id.] Dr. Lukins
noted Burton’s previous “back fusion for which he is disabled.” [Tr. 744] In December 2013,
following a carpal tunnel release procedure, Dr. Lukins reported that Burton’s shoulder had
significantly improved and that his range of motion had improved. However, Burton still
reported pain. [Tr. 740] Dr. Lukins saw Burton again in January 2014 and indicated that
Burton was “doing well after his carpal tunnel” and that his “shoulder symptoms [had]
decreased.” [Tr. 737]
In January 2014, Burton reportedly had “[e]xcellent shoulder strength” and, although
he had limitation in range of motion in his spine, the physician found no weakness, sensory
loss, or reflex asymmetry. [Tr. 914] In April 2014, Burton received treatment from the
University of Kentucky Department of Orthopaedic Surgery and Sports Medicine Clinic. He
complained at that time of shoulder pain and stiffness. [Tr. 1098] The physician reported that
Burton demonstrated diffuse tenderness and decreased grip strength, but that x-rays of his right
shoulder showed no acute fracture or dislocation. [Tr. 1099] The physician recommended
physical therapy for his shoulder. [Id.]
Burton has been diagnosed with diabetes and was found to have elevated blood sugar.
[See, e.g., Tr. 561, 567] He saw Dr. Ayman Geneidy in October 2013 and reported bilateral
lower extremity edema for approximately five years, recent excess proteinuria, and a renal
cyst. [Tr. 676] Dr. Geneidy diagnosed chronic kidney disease and proteinuria, and suspected
diabetic neuropathy. [Tr. 677] Burton received treatment for his diabetic conditions from an
endocrinologist at University of Kentucky HealthCare in August 2014. [Tr. 833] The
physician reported diminished sensation in both of Burton’s feet. [Tr. 835] The physician
continued Burton’s current medications. [Tr. 844]
In November 2012, Burton reported that he was back to work in construction and that
he had only occasional mild pain and numbness. [Tr. 553] Otherwise, he had no substantial
complaints. [Id.] Additionally, he had normal gait and station. [Tr. 555] Burton later reported
that he was frustrated because no one would hire him, but indicated that he had been staying
active and helping his friend with a new ceiling. [Tr. 589]
The state agency physicians concluded that Burton was not disabled from the alleged
onset date of February 8, 2009. [Tr. 248] They acknowledged that Burton’s ability to lift and
carry objects was decreased and that Burton’s limitations prevented him from performing some
tasks. They concluded, however, that these limitations did not prevent him from performing
all work-related activities. [Id.] Additionally, they found no evidence of significant damage
to Burton’s eyes, heart, liver, or kidneys caused by his high blood pressure and cholesterol or
his diabetes. [Id.] The agency physicians were unable to locate “evidence of any other severe
impairment that would prevent [Burton] from performing basic work activities on a daily
basis.” [Id.] They thus concluded that his condition was not severe enough to prevent him
from working. [Tr. 249]
Burton stated during the administrative hearing that he is unable to work due to the
neuropathy in his legs, arms, and hands. [Tr. 164] He testified that he is able to stand for 30
minutes before having to sit and is limited to lifting 25 pounds. [Id.] Burton denied
experiencing any side effects from his medications. [Id.] He also reported pain in his hands
and feet. [Tr. 167]
Burton testified that he had driven 75 miles in a day since the alleged onset date of
disability. [Tr. 160] He reported that, two years ago, he had volunteered at his wife’s
grandparents’ restaurant as a short-order cook for three to five hours per day for approximately
four weeks. [Tr. 161-62] Burton testified that he had to stop volunteering because he could
not stand for the time required. [Tr. 162] Burton further testified that, the day before the
hearing, he spent the majority of the day preparing, sanding and spray-painting a mailbox. [Tr.
165] He testified that he performs some household chores, such as doing the dishes, and
helping with dinner preparations. [Tr. 166] However, according to Burton, his back pain
prevented him from vacuuming and doing yard work. [Id.] He also asserted that he requires
some assistance with his personal hygiene. [Tr. 167]
The Vocational Expert (“VE”) appearing at the administrative hearing testified that a
hypothetical person of the claimant’s age, education, and previous work experience would be
able to perform light work with certain limitations and could perform work existing in the
national economy. [Tr. 182] Specifically, such an individual could perform light unskilled
work such that performed by a cashier or counter clerk. [Tr. 183]
The ALJ stated that Burton last met the insured status requirements of the Act on
September 30, 2014, and did not engage in substantial gainful activity during the relevant time
period. [Tr. 143] She found severe impairments of diabetes mellitus, degenerative disc
disease, diabetic neuropathy and nephropathy, chronic kidney disease, a partial thickness tear
and arthritis in the right shoulder, and obesity. [Tr. 144] However, the ALJ concluded that
Burton did not have an impairment or combination of impairments that met or equaled the
severity of a listed impairment. [Tr. 145]
“After careful consideration of the entire record,” the ALJ determined that Burton had
the residual functional capacity (“RFC”) to perform light work, except:
he is able to push/pull with his upper and lower extremities no more than
frequently; he is unable to climb ropes, ladders and scaffolds, but can
occasionally climb ramps/stairs, occasionally balance, stoop, crouch, kneel and
crawl; should avoid concentrated exposure to whole body vibration and should
perform no more than frequent bilateral overhead lifting; and he should be
allowed to change positions or alternate sitting and standing at 45 minute
[Id.] The ALJ discussed Burton’s testimony regarding the pain that he experienced and his
general limitations but concluded that he was not entirely credible because “the objective
medical evidence does not substantiate the level of severity he describes or the limitations he
attributes to his condition.” [Tr. 145-46]
The ALJ then evaluated the objective medical evidence relating to Burton’s shoulder
condition, diabetes, and kidney disease. [Tr. 146-47] She assigned some weight to Dr.
Glassman’s opinion that Burton should not lift over 40 pounds, but concluded that a 20-pound
limit was more appropriate. [Tr. 147] Additionally, she determined that Dr. Lukins’s opinion
(i.e., that Burton was disabled due to his back fusion) was not entitled to any weight because
it only addressed the ultimate issue of disability, which is reserved to the Commissioner, and
concluded that his opinion was unsupported by the record. [Id.] Finally, she discussed a prior
ALJ decision from 2011 and concluded that Burton’s condition was largely the same since this
decision. However, because of his lower extremity edema that prevented Burton from standing
for long periods, an additional sit/stand option was warranted. [Id.]
The ALJ concluded that Burton was unable to perform his past relevant work. [Id.]
Notwithstanding this finding, the ALJ determined based on the testimony of the VE that there
was work existing in substantial numbers in the national economy that Burton could
performed. [Tr. 148] Accordingly, she determined that Burton was not disabled during the
relevant period. [Id.]
Under the Act, a “disability” is defined as “the inability to engage in ‘substantial gainful
activity’ because of a medically determinable physical or mental impairment of at least one
year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)
(citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social Security disability determination is
made by an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. §
404.1520(a)(4)). If the claimant satisfies the requirements of the first four steps of the process,
the burden shifts to the Commissioner with respect to the fifth step. See Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that he is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, the
claimant must show that he suffers from a severe impairment or a combination of impairments.
20 C.F.R. § 404.1520(c).
Third, if the claimant is not engaged in substantial gainful
employment and has a severe impairment that is expected to last for at least twelve months
and that meets or equals a listed impairment, he will be considered disabled without regard to
age, education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the claimant has a
severe impairment but the Commissioner cannot make a determination of disability based on
medical evaluations and current work activity, the Commissioner will review the claimant’s
residual functional capacity (“RFC”) and relevant past work to determine whether he can
perform his past work. If he can, he is not disabled. 20 C.F.R. § 404.1520(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent him from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether he can perform other work. If he cannot perform other work,
the Commissioner will find the claimant disabled.
20 C.F.R. § 404.1520(g).
Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
Fed. Appx. 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391
(6th Cir. 1999)).
This Court’s review is limited to determining whether the ALJ’s findings are supported
by substantial evidence and whether the ALJ employed the proper legal standards in reaching
his decision. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).
Burton raises two claims of error. First, he argues that the ALJ erred by failing to
consider all of the evidence of record. Additionally, Burton contends that the ALJ’s evaluation
of his diabetes, neuropathy, kidney disease, and shoulder condition is not supported by
substantial evidence. However, the ALJ properly considered all relevant evidence. Her
decision is supported by substantial evidence.
An ALJ is required to consider all evidence of record when making a determination.
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014). But “an ALJ can consider
all the evidence without directly addressing in his written decision every piece of evidence
submitted by a party.” Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 507 (6th Cir.
2006) (citing Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
Burton argues that the ALJ erred by ignoring portions of the record relating to his
diabetes, neuropathy, kidney disease, and right shoulder condition. However, the ALJ’s
written decision does not support the contention that she ignored this evidence. First, the ALJ
stated that she had “careful[ly] consider[ed]  the entire record.” [Tr. 145] See Hillard v.
Sec’y of Health and Human Servs., No. 94-2212, 1996 WL 78311, at *3 (6th Cir. February 22,
1996) (“[T]he ALJ stated that he ‘review[ed] the evidence of record.’ Absent any basis to
question the veracity of this statement, this court must accept it at face value.”). Additionally,
she specifically considered the conditions in her written decision. The ALJ concluded that
each of these conditions was a severe impairment at the second stage of the analysis. [Tr. 144]
She also discussed the conditions during her discussion of Burton’s RFC, but concluded that
the record did not support a finding that these conditions rendered Burton disabled. [Tr. 146]
There is no reason to doubt that the ALJ considered all of the evidence in the record, regardless
of whether she specifically discussed every portion of it in her written decision. Burton’s
challenge on this basis fails.2
Burton also argues that the ALJ’s decision is not supported by substantial evidence.
But he fails to expand on this argument beyond stating that the ALJ’s “evaluation of Mr.
Burton’s diabetes, neuropathy, kidney disease and right shoulder condition is not based on the
record as a whole.” [Plaintiff’s Brief, p. 12] Burton seems to argue that the ALJ erred in
Burton also seems to argue that the ALJ ignored the opinion of one or more treating
physicians. He cites the treating physician rule, and states that the ALJ “ignored a number of
specialists Mr. Burton saw for his medical conditions.” [Plaintiff’s Brief, p. 12] However,
Burton does not identify which specialists the ALJ allegedly ignored or which specialists were
treating physicians. Without this information, the Court cannot evaluate his treating physician
argument and it is waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”).
making her RFC determination. However, there is substantial evidence to support the ALJ’s
Substantial evidence exists when a “reasonable mind might accept” the relevant
evidence “as adequate to support a conclusion.” Kirk v. Sec. of Health and Human Servs., 667
F.2d 524, 535 (6th Cir. 1981). As long as there is substantial evidence to support the ALJ’s
decision, it will be upheld, “even if there is substantial evidence in the record that would have
supported an opposite conclusion . . . .” Wright v. Massanari, 321 F.3d 611, 614 (6th Cir.
2003) (citation omitted). Additionally, the ALJ is permitted to “consider household and social
activities engaged in by the claimant in evaluating a claimant’s assertions of pain or ailments.”
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
The ALJ determined that Burton had the RFC to perform light work with a number of
limitations that accounted for his medical conditions. [Tr. 145] She found that Burton’s
statements regarding the severity of his conditions and the limitations that they imposed were
not entirely credible. She discussed his various conditions, and concluded that the evidence
did not support a finding that Burton is disabled. This conclusion is supported by substantial
The objective evidence supports the ALJ’s conclusion that Burton’s symptoms were
less severe than he alleged. Following shoulder surgery in May 2012, Burton’s treating
surgeon Dr. Glassman reported that Burton had full strength in all muscle groups and normal
reflexes. [Tr. 549] Similarly, in January 2014, Dr. Lukins reported that Burton was “doing
well” after his surgery and that his shoulder symptoms had decreased. [Tr. 737] Additionally,
several physicians confirmed that Burton had normal gait throughout the alleged period of
disability. [See, e.g., Tr. 555, 931]
Burton’s reports to his physicians are inconsistent with his assertions of disabling
limitations. Following his surgery, he reported that he no longer had the significant back and
leg pain that he had had prior to the operation and was “generally tolerating activities well.”
[Tr. 547] Burton reported in November 2012 that he was back to work in construction and
that he had only occasional mild pain and numbness. [Tr. 553] Based on Burton’s statements
regarding his condition, Dr. Glassman felt that Burton was capable of returning to medium
exertion work and was able to lift 40 pounds. [Tr. 547-49]
Burton’s daily activities during the alleged disability period contradict his assertions
that he is unable to perform light work. He reported that he had been working in construction,
and also that he had been staying active and was helping a friend with a new ceiling. [Tr. 553,
589] Additionally, he testified that he had driven 75 miles in a day since the alleged onset date
of disability. [Tr. 160] He also reported volunteering at his family’s restaurant, which required
him to work for three to five hours a day for about four weeks. [Tr. 161-62] The day before
the administrative hearing, Burton had prepared, sanded and painted a mailbox. [Tr. 165]
Additionally, he was able to complete some household chores and assist with dinner
preparations. [Tr. 166]
While the record does reflect that Burton has obtained treatment for his conditions, he
has not sufficiently explained how these conditions render him disabled. Instead, there is
substantial evidence in the record to support the ALJ’s conclusion that Burton is able to
perform a light range of work with stated limitations to account for his conditions.
Burton has failed to demonstrate that the ALJ ignored evidence from the record.
Additionally, the ALJ’s determination is supported by substantial evidence. Accordingly, it is
ORDERED as follows:
The Commissioner’s Motion for Summary Judgment [Record No. 14] is
The Plaintiff’s Motion for Summary Judgment [Record No. 12] is DENIED.
The administrative decision will be AFFIRMED by separate Judgment entered
This 19th day of April, 2017.
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