Keeton v. SSA
Filing
18
MEMORANDUM OPINION & ORDER: Pla's 14 Motion for Summary judgment is DENIED. A separate judgment affirming the Commissioner's decision will follow. Signed by Magistrate Judge Edward B. Atkins on 1/29/2025. (DC) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 5:24-CV-00104-EBA
KENNETH KEETON,
V.
PLAINTIFF,
MEMORANDUM OPINION & ORDER
MARTIN O’MALLEY,
Commissioner of Social Security,
DEFENDANT.
*** *** *** ***
INTRODUCTION
Plaintiff Kenneth Keeton appeals the Social Security Commissioner’s denial of his
application for disability insurance benefits. [R. 1]. Specifically, Keeton alleges that the
Administrative Law Judge (ALJ) committed “reversible error by failing to consider [his] kidney
impairment.” [R. 14-1 at pg. 4]. Keeton and the Commissioner filed briefs in support of their
respective positions. [R. 14-1; R. 17]. So, this matter is ripe for review. For the reasons discussed
below, the Court will affirm the Commissioner’s decision.
FACTS AND PROCEDURAL HISTORY
Kenneth Keeton is approximately 52 years old. [R. 11-6 at pg. 2]. The records for this case
indicate that he has a limited education 1 and previously worked as tractor trailer truck driver. [Id.
at pg. 40; R. 14-1 at pg. 1]. Unfortunately, Keeton suffers from several medical conditions,
“Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with
these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We
generally consider that a 7th grade through the 11th grade level of formal education is a limited education.” 20 C.F.R.
§ 404.1564(b)(3).
1
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including “diabetes, neuropathy, obesity, and proliferative diabetic retinopathy of the bilateral eyes
with macular edema status-post surgeries, including cataract removal from the left eye.” [R. 14-1
at pg. 2]. On June 30, 2020, Keeton protectively filed a Title II application for disability insurance
benefits, alleging that his disability began on May 11, 2020. [Id. at pg. 1; R. 11-6 at pg. 2]. Keeton’s
date last insured (DLI) was June 30, 2020, when he was 47 years old. 2 [Id.]. Thus, to prevail,
Keeton needed to establish that he was disabled within the meaning of the Social Security Act
between May 11, 2020, and June 30, 2020.
Keeton’s claim was denied initially and on reconsideration. [Id. at pgs. 2–8, 12–25]. He
then requested a hearing before an Administrative Law Judge, and a hearing was held before ALJ
Boyce Crocker on July 9, 2021. [Id. at pg. 31]. After the hearing, ALJ Crocker determined that
Keeton was not disabled within the meaning of Title II and denied his application. [Id. at pgs. 31–
42]. Keeton requested a review of ALJ Crocker’s decision with the Appeals Council and, on
August 25, 2022, the Appeals Council issued an order remanding Keeton’s case back to ALJ
Crocker. [Id. at pgs. 49–50]. As cause, the Appeals Council stated that “[t]he audio recording of
the hearing unintentionally captured sounds that are unrelated to the hearing,” apparently the result
of equipment “not [being] muted . . . as is needed to obtain a proper recording.” [Id. at pg. 49].
The Appeals Council’s order also directed ALJ Crocker to further consider Keeton’s residual
functional capacity 3 “during the entire period at issue and provide rationale with specific
references to evidence of record in support of assessed limitations.” [R. 11-3 at pg. 618].
“The date last insured . . . is the last day of the quarter a claimant[] meets insured status for disability or blindness.
For title II Disability Insurance Benefit . . . claims, adjudicators cannot establish onset after the DLI.” POMS DI
225501.320 Date Last Insured (DLI and the Established Onset Date (EOD)), available at
https://secure.ssa.gov/poms.nsf/lnx/0425501320. Put another way, Keeton must establish disability on or before June
30, 2020, to be entitled to a period of disability and disability insurance benefits.
3
Residual functional capacity (RFC) “is the most an adult can do despite his or her limitation(s).” 84 Fed. Reg. 22,924,
22,925 (May 20, 2019).
2
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After holding a remand hearing, ALJ Crocker again issued an unfavorable decision on
April 27, 2023. [Id. at pgs. 618–630]. Keeton then requested a review of ALJ Crocker’s remand
decision before the Appeals Council, claiming that—without further elaboration—Crocker’s
“decision contains errors of law and fact.” [R. 11-7 at pgs. 148–49]. This time, the Appeals Council
denied Keeton’s request because he failed to provide an adequate basis on which ALJ Crocker’s
decision should be changed. [R. 11-2 at pgs. 2–5]. So, because the Appeals Council declined
review, ALJ Crocker’s decision on remand became the Commissioner’s final decision, which is
subject to review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981. Now, having exhausted all
administrative remedies, Keeton seeks judicial review of ALJ Crocker’s decision denying benefits.
[R. 1].
STANDARD OF REVIEW & FRAMEWORK FOR DISABILITY DETERMINATIONS
A.
Administrative Law Judges must “follow agency rules and regulations.” Cole v. Astrue,
661 F.3d 931, 937 (6th Cir. 2011). A court reviewing the Commissioner’s conclusions must affirm
unless it determines that the Commissioner has failed to apply the correct legal standards or has
made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g);
Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). “Substantial evidence . . . is ‘more than a
mere scintilla of evidence’” and “means—and means only—‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 587 U.S.
97, 103 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 217
(1938)). Because the “threshold for such evidentiary sufficiency is not high,” id., the
Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be conclusive.”
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing U.S.C. § 405(g)).
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It is important to note that where, as here, the Appeals Council denies review of an ALJ’s decision,
that decision becomes the final decision of the Commissioner. Friend v. Comm’r of Soc. Sec., 375
F. App’x 543, 550 (6th Cir. 2010).
It has been observed that, because “[t]he Social Security hearing system is ‘probably the
largest adjudicative agency in the western world,’” the “need for efficiency” in resolving appeals
regarding agency decisions is “self-evident.” Heckler v. Campbell, 461 U.S. 458, 461 n. 2 (1983)
(internal citations omitted). Accordingly, a reviewing court owes the Commissioner’s decision
great deference. In conducting its review, a court may not try the case de novo, resolve conflicts
in the evidence, or decide questions of credibility. See Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)).
Consequently, an administrative decision is not subject to reversal even if substantial evidence
would have supported the opposite conclusion. See id. at 714 (quoting Bass, 499 F.3d at 509). In
other words, even if the Court would have resolved the factual issues differently, the ALJ’s
decision must stand if supported by substantial evidence. Id.; see also Tyra v. Sec’y of Health and
Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990). That said, a reviewing court may consider
evidence not referenced by the Administrative Law Judge. Heston v. Comm’r of Soc. Sec., 245
F.3d 528, 535 (6th Cir. 2001).
B.
Administrative Law Judges are tasked with conducting a five-step analysis to determine
whether a person is disabled within the meaning of Title II. 20 C.F.R. § 404.1520(a)(4). The five
steps are as follows:
(i)
At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
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(ii)
At the second step, we consider the medical severity of your impairment(s).
If you do not have a severe medically determinable physical or mental
impairment that meets the duration requirement in § 404.1509, or a
combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
(iii)
At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of our
listings in appendix 1 of this subpart and meets the duration requirement,
we will find that you are disabled.
(iv)
At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant
work, we will find that you are not disabled.
(v)
At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see if
you can make an adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 C.F.R. § 404.1520(a)(4).
Generally, the burden of proof rests with the person claiming benefits. Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987). Thus, Keeton bears the burden of establishing the severity of his
impairments and that he had greater limitations than the ALJ imposed. Her v. Commissioner of
Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (noting that “the burden of proof lies with the claimant
at steps one through four of the [sequential evaluation] process”); Higgs v. Bowen, 880 F.2d. 860,
863 (6th Cir. 1988) (noting that the claimant has the burden to “prove the severity of her
impairments”). However, if the ALJ reaches the fifth step of the analysis, the burden shifts to the
Commissioner to demonstrate that jobs exist within the national economy that can align with the
claimant’s RFC, age, education, and past work experience. Her, 203 F.3d at 391.
THE ALJ’S FINDINGS
As noted above, ALJ Crocker issued an unfavorable decision on Keeton’s claim for
benefits during Keeton’s initial appeal, [R. 11-6 at pgs. 31–42], and upon remand. [R. 11-3 at pgs.
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618–30]. On remand, ALJ Crocker found at Step One that Keeton last met insured status on June
30, 2020, and had not engaged in substantial gainful activity during the period from his alleged
onset date of May 11, 2020, through his DLI. [R. 11-3 at pg. 621]. At Step Two, Crocker found
that Keeton suffers from the following severe impairments: diabetes neuropathy, proliferative
diabetic retinopathy of the bilateral eyes with macular, and obesity. [Id.]. Crocker also found that
Keeton suffered from two non-severe impairments: hyperlipidemia and hypertension. [Id.]. At
Step Three, Crocker determined that Keeton’s impairments, through the DLI, did not meet or
medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. [Id. at pg. 623]. In determining Keeton’s RFC, ALJ Crocker stated the following:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the [RFC] to perform light work as defined
in 20 CFR 404.1567(b) except stand/walk for 4-hours of an 8-hour workday[,]
occasionally climb ramps and stairs, but no ladders, ropes or scaffolds; could
occasionally stoop, kneel, crouch and crawl; must avoid all exposure to unprotected
heights and moving machinery; had visual limitations such that near and far acuity
would be present bilaterally.
[Id.].
Based on Keeton’s RFC and accompanying findings of fact, ALJ Crocker concluded at
Step Four that Keeton was unable to perform any past relevant work through the DLI. [Id. at pg.
628]. However, at Step Five, Crocker found that Keeton is “not disabled”—and thus ineligible for
benefits under Title II—because Keeton “was capable of making a successful adjustment to other
work that existed in significant numbers in the national economy” through the DLI. [Id. at pgs.
628–29]. In making that determination, he relied on a vocational expert who testified that Keeton
would have been able to perform the requirements of the following occupations: (1) housekeeping
cleaner, (2) merchandise marker, (3) call out operator, and (4) document preparer. [Id.].
ANALYSIS
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Keeton maintains that ALJ Crocker’s unfavorable determination regarding his application
for Title II benefits is not supported by substantial evidence because Crocker failed to consider
Keeton’s chronic kidney disease. [R. 14-1 at pgs. 3–4]. Specifically, Keeton argues that his
“medical record is replete with references to a steadily worsening kidney impairment,” citing his
long battle with diabetes and the specific finding that his 2021 stage 3b chronic kidney disease
diagnosis was attributed to his diabetes. [Id. at pg. 4]. Given this diagnosis and supporting
evidence, Keeton contends that he meets listings 6.03 and 6.05 based on, respectively, his chronic
dialysis and chronic kidney disease. [Id.]. Thus, Keeton avers that ALJ Crocker’s failure to
consider his kidney impairment is reversible error. [Id.].
The medical record is indeed replete with evidence that Keeton suffers from a chronic
kidney condition. [See, e.g., R. 11-5 at pgs. 665–87; R. 11-14 at pgs. 1737–47, 1754]. But as the
Commissioner correctly points out, none of this evidence is from before the date on which Keeton
was last insured. [R. 17 at pg. 6]. Keeton does not dispute that the proffered evidence of his kidney
impairments—and thus his ability to meet listings 6.03 and 6.05—is from after the DLI. [R. 14-1
at pg. 4]. Rather, Keeton contends that such evidence should “relate back” because his recent
kidney diagnoses “did not appear overnight” and are the result of a “culmination of years of
impaired kidney functioning relating back to his diabetes.” [Id.]. In response, the Commissioner
contends that the post-DLI evidence of kidney impairment does not relate back because Keeton
did not “allege kidney problems as a disabling impairment” when he first applied for benefits. [R.
17 at pg. 6]. Furthermore, the Commissioner notes that Keeton “expressly stated he stopped
working because his vision problems caused him to lose his commercial driver’s license.” [Id. at
pgs. 4–6].
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While an ALJ must consider all evidence of record when making a Title II disability
benefits determination, Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014),
“[e]vidence of disability obtained after the expiration of insured status is generally of little
probative value.” Strong v. Soc. Sec. Admin., 88 Fed.App’x. 841, 845 (6th Cir. 2004) (citing
Cornette v. Sec’y of Health & Hum. Servs., 869 F.2d 260, 264 n. 6 (6th Cir. 1988)). Indeed, such
evidence should only be considered “insofar as it bears on the claimant’s condition prior to the
expiration of insured status.” Anderson v. Comm’r of Soc. Sec., 440 F.Supp.2d 696, 699–700 (E.D.
Mich. 2006) (citing Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976)). Put another way, an
ALJ’s failure to consider post-DLI evidence of impairment(s) is not error unless the post-DLI
evidence of impairment “relates back” to the claimant’s impairment(s) during the relevant period
of review.
Here, Keeton’s post-DLI kidney diagnoses do not relate back to his condition during the
relevant period. In his initial application for benefits, Keeton did not allege any kidney impairment.
[See R. 11-6 at pgs. 2–9]. Further, of the impairments which ALJ Crocker did find that Keeton
suffered from during the relevant period, [R. 11-3 at pg. 621], none of these impairments—severe
or non-severe—had any relation to his kidneys. Keeton seems to imply that his kidney impairments
do relate back because both his pre-and post-DLI impairments and diagnoses all possessed a
similar root cause (i.e., diabetes). [See R. 11-6 at pgs. 2–9 (listing diabetes and diabetic neuropathy
as disabling impairments); see also R. 14-1 at pg. 4 (citing R. 11-14 at pg. 1740) (November 2021
medical report of Dr. Charbel Salem, Keeton’s treating physician, attributing Keeton’s chronic
kidney disease to his diabetes); R. 11-14 at pg. 1754]. Importantly, however, Keeton bears the
burden of showing how his post-DLI diagnoses caused him functional limitations during the
relevant period. See Higgs, 880 F.2d at 863 (noting that a “mere diagnosis . . . says nothing about
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the severity of the condition”); see also Her, 203 F.3d at 391 (noting that “the burden of proof lies
with the claimant at steps one through four of the [sequential evaluation] process”). By relying
solely on a post-DLI diagnosis without offering any affirmative medical evidence that specifically
links his chronic kidney disease diagnosis to his condition during the relevant period, Keeton has
failed to meet this burden. Moreover, to the extent Keeton urges this Court to find error in
Crocker’s failure to make this evidentiary connection on his own, this Court may not, and will not,
reweigh the evidence. See Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854–55 (6th Cir. 2010)
(“Even if this Court might have reached a contrary conclusion of fact, the Commissioner’s decision
must be affirmed so long as it is supported by substantial evidence.”); see also Ulman, 693 F.3d at
714 (stating that “[a]s long as the ALJ cited substantial, legitimate evidence to support his factual
conclusions, we are not to second-guess”).
Even if the proffered evidence does relate back to his pre-DLI impairments, Keeton cannot
demonstrate that any error occurred because Crocker’s determination is supported by substantial
evidence. Indeed, where an ALJ’s decision is supported by substantial evidence, courts in this
Circuit have declined to reach the issue of whether an ALJ erred in failing to consider evidence
offered from a treating source after the DLI. See, e.g., Shavers v. Sec’y of Health & Hum. Servs.,
839 F.2d 232, 234 (6th Cir. 1987). In concluding that Keeton was not disabled, ALJ Crocker
explicitly stated that he “has considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence,
based on the requirements of 20 CFR 404.1529 and SSR 16-3p.” [R. 11-3 at pg. 624]. Moreover,
Crocker considered a plethora of medical records dating as far back as January 10, 2020—prior to
May 11, 2020, the beginning of the relevant period—through June 20, 2021. [See R. 11-3 at pgs.
621–28 (citing R. 11-10 at pgs. 2–382; R. 11-13 at pgs. 10-30, 36-44, 177-309)]. And among the
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symptoms and evidence considered, Crocker’s opinion also highlighted Keeton’s own testimony
where he stated that, during the relevant time period, he suffered from “daily swollen legs . . .
caused by diabetes issues and kidney problems.” [Id.]. Accordingly, the record reflects that ALJ
Crocker’s decision is supported by substantial evidence.
CONCLUSION
Kenneth Keeton appealed the Commissioner’s final decision finding that he can perform
light work, arguing that ALJ Crocker’s findings were not supported by substantial evidence
because Crocker failed to consider his chronic kidney disease. However, because Keeton’s kidney
impairments did not relate back to his pre-DLI impairments, Crocker was not required to consider
any evidence of Keeton’s kidney impairments. Moreover, even if Keeton’s kidney impairments
did relate back, no error occurred because Crocker’s decision was supported by substantial
evidence. Therefore,
IT IS ORDERED that Plaintiff Kenneth Keeton’s motion for summary judgment, [R. 14],
is DENIED. A separate judgment affirming the Commissioner’s decision will follow.
Signed January 29, 2025.
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