Pennington v. SSA

Filing 14

MEMORANDUM OPINION AND ORDER: Based on the foregoing analysis and discussion, it is hereby ORDERED as follows: 1. Plaintiff Jimmy Lee Pennington's motion for summary judgment [Record No. 11 ] is DENIED. 2. Defendant Commissioner of the Social Security Administration's motion forsummary judgment [Record No. 13 ] is GRANTED. 3. The administrative decision will be AFFIRMED by separate Judgment enteredthis date. Signed by Judge Danny C. Reeves on 11/18/2020.(MM)cc: COR

Case: 6:20-cv-00138-DCR Doc #: 14 Filed: 11/18/20 Page: 1 of 10 - Page ID#: 1128

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
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JIMMY LEE PENNINGTON,
Plaintiff,
V.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

Civil Action No. 6: 20-138-DCR

MEMORANDUM OPINION
AND ORDER

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The plaintiff seeks judicial review of the Commissioner of Social Security’s denial of
his application for disability insurance benefits. Specifically, the plaintiff contends that the
administrative law judge assigned to his case incorrectly evaluated his subjective complaints
of pain and that her decision is not supported by substantial evidence.
Despite the plaintiff’s failure to make any effort at developed argumentation, the Court
has reviewed the record and finds that the Commissioner’s decision is supported by substantial
evidence and is based on a proper application of the law. Accordingly, the administrative
decision will be affirmed.
I.
Plaintiff Jimmy Lee Pennington (“plaintiff” or “Pennington”) filed an application for
disability insurance benefits (“DIB”) on September 21, 2017.1 [See Administrative Transcript,
hereafter “Tr.,” 21. See also Tr. 354.]

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His application was denied initially and upon

Pennington also filed applications for DIB on January 15, 2013, and August 28, 2015,
which were denied. [See Tr. 173-227.]

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reconsideration.

[Tr. 272, 280]

Pennington thereafter requested a hearing before an

administrative law judge (“ALJ”). [Tr. 287] ALJ Joyce Francis held a hearing on January 15,
2019, and issued a written decision denying benefits on May 7, 2019. [Tr. 63-81; 21-33] The
ruling became the Commissioner’s final decision when the Appeals Council denied the
plaintiff’s request for review on May 20, 2020. [Tr. 1-3] The matter is ripe for judicial review.
See 42 U.S.C. § 405(g).
II.
The plaintiff was 51 years old at the time of the ALJ’s decision. [Tr. 354, 33] He lived
at home with his wife and fifteen-year-old daughter. [Tr. 67] He had graduated from high
school, possessed a driver’s license, and drove regularly. Pennington previously worked as a
roof bolter in coal mines from 2006 through 2012. [Tr. 68-69] Prior to that time, he worked
for the city waterworks, where he mowed grass, repaired water lines, and worked on sewer
lines. [Tr. 70] Pennington reported lifting up to 100 pounds for both jobs. [Tr. 73]
Pennington last worked on or around August 14, 2012, when he hit his head and injured
his neck.2 [Tr. 70, 354] He testified that he experienced pain daily and that his “back, neck,
[and] legs” prevented him from working Id. Pennington also reported swelling of his legs and
feet. [Tr. 74] He reported being able to walk for about ten minutes and being able to sit or
stand for ten or fifteen minutes. [Tr. 71] Pennington reported that he lies down six or seven
times per day to help relieve the swelling and pain. He also contends that he tries to avoid
lifting anything over 10 pounds.

2

The plaintiff was permitted to amend his onset date to December 30, 2017. [Tr. 66]

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Pennington reported taking nitroglycerin medication two to three times per week for
chest pain. [Tr. 73-74] He also complained of headaches two to three times a week.
Additionally, Pennington complained of depression, which made him irritable and reluctant to
go out in public. He also reported difficulty sustaining concentration. [Tr. 76]
Pennington presented to the Harlan ARH Emergency Department on May 11, 2017,
complaining of chest pain. [Tr. 868] Following a heart catheterization, he was diagnosed with
an acute non-ST segment elevation myocardial infarction. [Tr. 870] This was treated with
angioplasty and placement of a stent. [Tr. 527, 562, 580]
He followed up later that month with Srinivasa Appakondu, M.D., at Appalachian
Heart Center in Harlan, Kentucky. [Tr. 627] Pennington reported that he was “doing well,”
with no chest pain, shortness of breath, or swelling of the extremities. [Tr. 628] An
echocardiogram performed on May 26, 2017, revealed a left ventricle ejection fraction of 65%.
[Tr. 634] He continued to follow up with Appakondu every three months.
In January 2018, Pennington complained of leg pain, but ankle brachial index testing
was normal. Dr. Appakondu believed the plaintiff’s leg pain was likely a side effect of statin
drugs. [Tr. 728-29] The plaintiff also treated with Dusta Boggs, APRN at Tri City Medical
Center. Pennington saw Ms. Boggs in November 2018 for primary care and medication
management. At that time, she increased his dosage of metroprolol and encouraged him to
reduce calories and increase exercise for weight loss. [Tr. 855]
Pennington received monthly treatment for neck and low back pain at Kentucky Pain
Management Services from late 2015 through late 2018. On August 21, 2017, this provider
diagnosed Pennington with cervical and lumbar degenerative disc disease and spondylosis,
lumbar hypertrophy, “comp fx,” radiculopathy, sacroiliac pain, and peripheral neuropathy.
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[Tr. 652] Throughout the treatment period, this provider prescribed “Norco 7.5”. Pennington
consistently reported that his ability to perform functional activities was improved with
treatment. [Tr. 647-743]
Pain Management Services also referred the plaintiff to physical therapy, which
commenced in November 2017. [Tr. 935] Pennington attended several sessions during which
he improved his range of motion and met his lower extremity strength goals. [Tr. 893] He
was discharged from therapy in January 2018 after he stopped attending without notification.
Pennington began a second course of physical therapy in November 2018. [Tr. 970]
He reported that he had gotten very weak after his heart attack and that his back had been
hurting a lot. Pennington attended six visits and reported decreased low back pain as of
November 28, 2018. [Tr. 950-51]
ALJ Francis determined that Pennington had the following severe impairments:
degenerative disc disease; obesity; borderline intellectual functioning; and coronary artery
disease with stenting. [Tr. 24] After considering the entire record, she determined that
Pennington had the functional residual capacity to perform light work as defined in 20 C.F.R.
§ 404.1567(b), except he could
lift no greater than 15 pounds; perform no more than occasional overhead
lifting; sit no greater than 90 minutes continuously without 10 to 15 minutes to
stand and walk; cannot sustain cervical posturing at extremes; can climb ladders,
ropes, and scaffolds no more than frequently; can climb ramps and stairs no
more than frequently; cannot tolerate exposure to vibration; and has been limited
to work requiring only simple instructions and tasks accommodating a ninthgrade level of literacy.
[Tr. 14]
The ALJ concluded that Pennington could not perform his past work, which was
considered medium exertion work, but performed by the plaintiff at the heavy or very heavy
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level of exertion. [Tr. 31] However, based on the vocational expert’s testimony, there were
jobs existing in significant numbers in the national economy that he could perform. [Tr. 33]
Accordingly, he was not disabled under the Social Security Act (“Act”).
III.
A “disability” under the Act 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). If the claimant satisfies 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 which is expected to last for at least twelve months
and which 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 regarding disability
based on medical evaluations and current work activity, the Commissioner will review the
claimant’s RFC and relevant past work to determine whether he can perform his past work.
20 C.F.R. § 404.1520(e). If he can, he is not disabled. 20 C.F.R. § 404.1520(f).
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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).

“The

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
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
Cir. 1999)).
The Court’s review is limited to determining whether the ALJ’s findings are supported
by substantial evidence and whether the ALJ applied the proper legal standards in reaching her
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).
IV.
A.

The ALJ Properly Evaluated the Plaintiff’s Subjective Complaints of Pain.
The plaintiff summarily claims that ALJ Francis erred in applying the two-step process

for analyzing subjective complaints of pain. However, Pennington presents no substantive
argument in support of this claim. The argument could be denied on that basis alone, as issues
raised in a perfunctory manner, without some effort at developed argumentation, generally are
deemed waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997); Errico v.
Berryhill, 2018 WL 5794163, at *4 (E.D. Ky. Nov. 5, 2018) (“the Court will not undertake an
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open-ended review of the administrative record to find support for the [plaintiff’s]
arguments.”).
Regardless, in the interest of reviewing the plaintiff’s appeal on the merits, the Court
has examined the record and finds that the ALJ applied the correct two-step process for
evaluating subjective complaints of pain. See 20 C.F.R. § 404.1529; SSR 16-3p, 2017 WL
5180304 (Oct. 25, 2017).
The ALJ first determined that Pennington had medically determinable impairments that
could reasonably be expected to cause the symptoms he alleged. See 20 C.F.R. § 404.1529(b).
[Tr. 28] The ALJ concluded, however, that Pennington’s statements concerning the intensity,
persistence, and limiting effects were not substantiated by objective medical evidence or the
other evidence of record. See 20 C.F.R. § 404.1529(c). [Tr. 28-30] Although Pennington
claimed he could only sit for 10 or 15 minutes, he had driven himself 50 miles to the
administrative hearing. Further, he reported sitting and watching television for two hours at a
time. [Tr. 408] Penington also reported that he could lift up to 20 pounds. [Tr. 413] He was
able to perform all self-care and visited his father several times per week. [Tr. 28]
The ALJ’s credibility determinations are given great weight, particularly since the ALJ
is tasked with observing the claimant’s demeanor and credibility. Allen v. Comm’r of Soc.
Sec., 561 F.3d 646, 652 (6th Cir. 2009). Pennington has not identified any error in the ALJ’s
application of the two-step process to his subjective complaints of pain. Accordingly, there is
no basis to disturb the ALJ’s ruling on this ground.
B.

The ALJ’s Decision is Supported by Substantial Evidence.

Pennington argues that, “[w]hen the record in this case is considered in its entirety, the
combined effects of Plaintiff’s physical and mental impairments reflect he could not perform
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a wide range of even sedentary work on a regular and sustained basis.” [Record No. 11-1, p.
13] However, this is the extent of his argument and he does not point to any particular aspect
of the ALJ’s opinion that he believes is deficient.
On May 9, 2017, ALJ Donald Rising denied benefits with respect to Pennington’s
August 28, 2015, application for DIB. [Tr. 204-13] Rising determined that Pennington had
the RFC to perform light work as defined in 20 C.F.R. 404.1567(b) except
he can lift no greater than 15 pounds; perform no more than occasional overhead
lifting; sit no greater than 90 minutes continuously without 10-15 minutes to
stand and walk; and no sustained cervical posturing at extremes; no more than
frequent climbing of ladders, ropes, and scaffolds; no exposure to vibration; and
is limited to work requiring only simple instructions/tasks accommodating 9th
grade literacy.
[Tr. 209] The Appeals Council denied Pennington’s request for review and this became the
Commissioner’s final decision on September 5, 2017. [Tr. 221] That decision was affirmed
by another judge of this Court on August 14, 2018. Pennington v. Berryhill, 2018 WL 3863502
(E.D. Ky. Aug. 14, 2018).
In adjudicating the plaintiff’s current application, ALJ Francis noted that Pennington
had not presented evidence showing that his condition had significantly worsened since the
previous ALJ decision. “When the Commissioner has made a final decision concerning a
claimant’s entitlement to benefits, the Commissioner is bound by this determination absent
changed circumstances.” Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir.
1997). See also Priest v. Soc. Sec. Admin., 3 F. App’x 275, 276 (6th Cir. 2001) (observing that
plaintiff bore the burden of showing that her condition had worsened such that she was no
longer able to perform substantial gainful activity).

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Agency consultant Sudhideb Mukherjee, M.D., reviewed Pennington’s file on
November 13, 2017. Mukherjee opined that the new evidence concerning Pennington’s
coronary artery disease and stenting procedure did not significantly impact the prior ALJ’s
decision. [Tr. 230] However, in recommending an RFC, he added the new limitation of only
frequent climbing of ramps and stairs. [Tr. 243] Otherwise, he believed the prior RFC should
be adopted. Paul Saranga, M.D., reviewed the file on January 25, 2018, and agreed with
Mukherjee’s recommendation. [Tr. 263-64]
ALJ Francis found these opinions to be consistent with Pennington’s “stable pain
control medication and reports of only mild pain, as well as his ability to ambulate without an
assistive device.”

[Tr. 31]

ALJ Francis noted that the plaintiff had not experienced

exacerbations that required more intensive intervention than routine visits to his pain
management physician and physical therapy during the period at issue. Physical therapy notes
indicate that Pennington saw significant improvement in strength and range of motion before
he stopped attending therapy. Further, Pennington reported being able to drive 50 miles, spend
several hours watching television, lift 20 pounds, and was independent in performing self-care.
[Tr. 29]
While the plaintiff does not identify any evidence indicating that his heart function was
compromised following insertion of a stent in May 2017, he complained of chest pain and the
use of nitroglycerin once or twice per week. Accordingly, consistent the consulting sources’
recommendations, ALJ Francis added limitations to the RFC which would limit Pennington’s
ability to climb ramps and stairs. [Tr. 27] The plaintiff has neither pointed to any conflicting
evidence of record nor explained why additional restrictions would have been appropriate.

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V.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1.

Plaintiff Jimmy Lee Pennington’s motion for summary judgment [Record No.

11] is DENIED.
2.

Defendant Commissioner of the Social Security Administration’s motion for

summary judgment [Record No. 13] is GRANTED.
3.

The administrative decision will be AFFIRMED by separate Judgment entered

this date.
Dated: November 18, 2020.

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