Henry v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Regina S. Edwards on 8/1/2022. The final decision of the Commissioner is AFFIRMED. This is a final and appealable Order and there is no just cause for delay. cc: counsel (SRH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:20-CV-00606-RSE
FAWN L. H.

PLAINTIFF

VS.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security1

DEFENDANT

MEMORANDUM OPINION
AND ORDER
This is a cessation of benefits case. Plaintiff seeks judicial review of the Commissioner’s
decision to terminate her disability insurance benefits pursuant to 42 U.S.C. § 405(g). (DN 1).
Both Plaintiff (DN 14) and the Commissioner (DN 19) have filed a Fact and Law Summary. The
parties have consented, under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, to the undersigned United
States Magistrate Judge conducting all further proceedings in this case, including issuance of a
memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed. (DN 7).
I. Background
Plaintiff is 42 years old and lives with her husband and son in Reynolds Station, Kentucky.
(Tr. 311, 352). Plaintiff is presently unemployed but has past relevant work experience as a
mortgage clerk and a bank teller. (Tr. 29). On April 27, 2011, Plaintiff protectively filed an
application for disability insurance benefits (“DIB”) from the Social Security Administration under
Title II of the Social Security Act, 42 U.S.C. § 1382c(a)(3) (“Act”), alleging disability beginning

1 Kilolo

Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Federal Rule of
Civil Procedure 25(d), Kilolo Kijakazi is substituted for Andrew Saul as Defendant in this case.

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on February 28, 2009. (Tr. 311). Plaintiff claimed she could not perform work at substantial gainful
levels due to systemic lupus erythematosus. (Tr. 336). Her application was approved, and she
began receiving disability benefits effective September 1, 2010. (Tr. 139; Tr. 118).
On December 3, 2014, the Social Security Administration performed a routine continuing
disability review (“CDR”) and notified Plaintiff that her benefits would cease because her health
had improved. (Tr. 147). Plaintiff administratively appealed her cessation of benefits (Tr. 163) but
was unsuccessful. (See Tr. 179; Tr. 190). Upon Plaintiff’s request, a hearing was conducted before
Administrative Law Judge Maribeth McMahon (“ALJ McMahon”) in Paducah, Kentucky on
September 13, 2017. (Tr. 37–78). Plaintiff appeared in person and was represented by attorney
Russ Wilkey. (Tr. 37). On March 9, 2018, ALJ McMahon found that Plaintiff was no longer under
disability as of December 1, 2014, and her benefits were terminated. (Tr. 147–48).
Plaintiff sought review of ALJ McMahon’s decision. (Tr. 306). Upon review, the Appeals
Council found that ALJ McMahon did not consider whether Plaintiff became disabled between
the December 1, 2014 date of cessation and the March 9, 2018 decision date, and that ALJ
McMahon did not adequately address the opinion evidence of record. (Tr. 134). Thus, the Appeals
Council remanded the case for further consideration. (Id.). ALJ McMahon held a second hearing
on March 22, 2019, and Plaintiff again appeared in person with her attorney. (Tr. 79–105).
Remedying the previous deficiencies, ALJ McMahon again issued an unfavorable decision on
September 21, 2020. (Tr. 14–29).
In general, when evaluating a disability claim, the administrative law judge follows a fivestep sequential analysis promulgated by the Commissioner. 20 C.F.R. § 404.1520; Kyle v. Comm’r
of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010). But when performing a continuing disability review
to determine whether a claimant is still entitled to benefits, the administrative law judge follows

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an eight-step evaluation. 20 C.F.R. § 404.1594(f).
First, the claimant’s disability has ended if she is engaging in substantial gainful activity
and any applicable trial work period is complete. Id. § 404.1594(f)(1). Second, the claimant’s
disability continues if she has an impairment or combination of impairments which meets or
medically equals the severity of a listed impairment. Id. § 404.1594(f)(2). Third, the inquiry turns
to whether there has been medical improvement, i.e., a decrease in the medical severity of the
claimant’s impairments. Id. § 404.1594(f)(3). If there has been medical improvement, the inquiry
proceeds to step four, where the administrative law judge considers whether the medical
improvement is related to the claimant’s ability to work. Id. § 404.1594(f)(4). If there was no
medical improvement or if the improvement was unrelated to the claimant’s ability to work, the
administrative law judge continues to step five, and disability continues unless an exception
applies. Id. § 404.1594(f)(5). If, on the other hand, the medical improvement is related to the
claimant’s ability to work, or if an exception applies, the administrative law judge proceeds to step
six and must determine whether the claimant’s impairments are severe. Id. § 404.1594(f)(6). If the
claimant’s impairments are not severe, she is no longer disabled. Id. If the claimant has severe
impairments but can perform past relevant work based on her RFC, she is no longer disabled at
step seven. Id. § 404.1594(f)(7). At step eight, if the claimant cannot return to prior work but can
perform other work based on her age, education, RFC, and experience, she is no longer disabled.
Id. § 404.1594(f)(8).
Following this sequential analysis, ALJ McMahon found medical improvement related to
Plaintiff’s ability to work. (Tr. 19–20). Because Plaintiff continued to have a severe impairment,
ALJ McMahon then considered whether she could perform past relevant or other work not
precluded by her RFC. (Tr. 21). ALJ McMahon concluded that Plaintiff could perform light work

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with the following limitations:
She can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can
frequently handle and finger with the bilateral upper extremities; her ability to push
and/or pull is otherwise unlimited; she can sit, stand, and walk each for up to 1 hour
at a time, for a total of 6 hours each in an 8-hour workday with normal breaks; she
can frequently climb ramps and stairs; she can occasionally climb ladders, ropes,
and scaffolds; she can frequently stoop, kneel, crouch, and crawl; she should avoid
concentrated exposure to vibrations, unprotected heights, dangerous machinery,
fumes, odors, dusts, gases, and poor ventilation.
In light of this improved finding, ALJ McMahon determined that Plaintiff’s disability ended on
December 3, 2014 and that she had not become disabled again as of the date of her decision. (Tr.
30).
Plaintiff again sought review of ALJ McMahon’s decision. (Tr. 306–10). This time, the
Appeals Council declined review on July 17, 2020. (Tr. 1). At that point, the denial became the
final decision of the Commissioner, and Plaintiff sought judicial review from this Court. (DN 1).
II. Standard of Review
Recipients of disability benefits are subject to periodic review of their continued
entitlement to such benefits. 20 C.F.R. § 404.1594(a). An individual is not entitled to a
presumption of continuing disability merely because she received an award of disability benefits
in the past. Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286–87 & n.1 (6th Cir. 1994).
The Commissioner must review the individual’s evidence “on a neutral basis.” 20 C.F.R. §
404.1594(b)(6). Should substantial evidence demonstrate that the individual is able to engage in
substantial gainful activity because of medical improvement related to the individual’s ability to
work, the Commissioner will terminate the award of disability benefits. 42 U.S.C. § 423(f)(1).
Unlike initial disability determinations, “the ultimate burden of proof lies with the
Commissioner in termination proceedings.” Kennedy v. Astrue, 247 Fed. Appx. 761, 765, 768 (6th
Cir. 2007) (citing 20 C.F.R. § 404.1594(b)(5), (f)(7)). The Commissioner bears the burden of
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proving both that “the severity of a claimant’s impairment has medically improved, and that the
claimant is now able to perform substantial gainful activity.” Little v. Comm’r of Soc. Sec., No.
1:12CV949, 2014 WL 656737, at *4 (S.D. Ohio Feb. 19, 2014) (citing 42 U.S.C. § 423(f)(1)).
When reviewing the administrative law judge’s decision, the Court may “not try the case
de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted). Instead,
the Court’s review is limited to an inquiry as to whether the administrative law judge’s findings
were supported by substantial evidence, 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001) (internal citations omitted), and whether the administrative law judge employed
the proper legal standards in reaching her conclusion. See Landsaw v. Sec’y of Health & Human
Servs., 803 F.2d 211, 213 (6th Cir. 1986). Substantial evidence exists “when a reasonable mind
could accept the evidence as adequate to support the challenged conclusion, even if that evidence
could support a decision the other way.” Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993). The
Supreme Court has clarified that “whatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high[.]” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019) (internal citations omitted).
III. Analysis
Plaintiff presents three related claims of error. First, Plaintiff claims ALJ McMahon
improperly evaluated her subjective complaints. (DN 14, at PageID # 698, 705). Second, Plaintiff
argues ALJ McMahon unreasonably concluded that she could perform a range of light work. (Id.
at PageID # 698). Third, Plaintiff suggests ALJ McMahon erred in finding that she could perform
her past relevant work as a mortgage clerk and bank teller. (Id.).
A. Plaintiff’s Subjective Complaints

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Plaintiff argues ALJ McMahon discounted her subjective complaints despite “medical
records that consistently . . . support a finding that she is a credible witness.” (DN 14, at PageID #
705). Plaintiff argues ALJ McMahon failed to adequately explain why she limited Plaintiff to
sedentary work after the first hearing but found her capable of light work after the second. (Id.).
The Commissioner counters that ALJ McMahon “thoroughly reviewed” Plaintiff’s medical
records, reports of daily activities, and other “precipitating/aggravating factors” and reasonably
found that Plaintiff’s allegations were “less than fully credible.” (DN 19, at PageID # 731, 729).
When forming the RFC, an ALJ must assess the claimant’s subjective allegations alongside
medical records and physician opinions. 20 C.F.R. §§ 404.1520c, 404.1529(a). A claimant’s
statement that she is experiencing pain or other symptoms will not, taken alone, establish that she
is disabled. See 20 C.F.R. § 404.1529(a); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th
Cir. 1997); Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). There
must be medical signs and laboratory findings which show the existence of a medical impairment
that could reasonably be expected to produce the pain alleged. Walters, 127 F.3d at 530; Duncan,
801 F.2d at 854. In evaluating the claimant’s subjective complaints, the ALJ considers objective
medical evidence, as well as other non-exhaustive factors such as evidence of daily activities, the
frequency and intensity of pain, medication taken and any resulting side effects, and any other
measures taken to alleviate the pain. See 20 C.F.R. §§ 404.1529(c)(2), (3), 416.929(c)(2), (c)(3).
Plaintiff summarizes her hearing testimony as generally complaining of “stiffness,”
inability to stand for long periods because she gets “winded easily,” needing assistance with
grocery shopping and household chores, needing help with childcare and with her own care,
including bathing, being consistently tired and needing regular naps, high blood pressure, and
having “brain fog.” (DN 14, at PageID # 701–02). ALJ McMahon found that Plaintiff’s medically

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determinable impairments could reasonably be expected to produce these symptoms, but that her
statements concerning their intensity, persistence, and limiting effects were not entirely consistent
with the record evidence. (Tr. 22).
In evaluating Plaintiff’s complaints, ALJ McMahon considered that since August 2013,
Plaintiff’s “symptoms of lupus and secondary nephritis have remained relatively well controlled
with medications.” (Tr. 22). As ALJ McMahon noted, at that time, Plaintiff’s rheumatologist Dr.
David Brey described Plaintiff’s lupus as “essentially symptom free except for her history of
nephritis.” (Id.). The following year, in August 2014, Dr. Brey again documented no abnormal
findings, prescribed no medication changes, and noted that Plaintiff reported “doing well” aside
from experiencing some “morning stiffness.” (Id.). ALJ McMahon also recognized that Plaintiff’s
severe lupus flare in 2010 and related treatment formed “the basis of [her] initial award of disability
benefits.” (Id.).
ALJ McMahon further noted that in 2016, Plaintiff began to complain of fatigue and her
blood pressure was consistently high at medical appointments, although Plaintiff reported normal
blood pressure readings from her home device. (Tr. 24). Moreover, into 2017, Dr. Brey observed
that Plaintiff’s lupus still “appear[ed] to be in remission.” (Id.). The same year, Dr. Dhiren Haria
also opined that Plaintiff’s hypertension was controlled and her lupus was “stable with only mild
proteinuria.” (Id.). In 2018, Dr. Brey observed Plaintiff with “no overt” lupus or hypertension
symptoms. (Id.). The following year, Dr. Moges Sisay, another rheumatologist, observed and
interviewed Plaintiff and reported generally unremarkable findings, including no joint swelling,
mild pallor with blood pressure of 206/103, crepitus in the bilateral knees, and stable range of
motion of both shoulders and in the ankles and feet. (Tr. 25).
While acknowledging the ongoing effects of Plaintiff’s impairments, see Tr. 25–26, ALJ

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McMahon found Plaintiff’s testimony only partially consistent with the medical evidence because
it demonstrates significantly improved symptoms and consistent mild treatment with medication.
ALJ McMahon’s conclusion is supported by substantial evidence in the record despite Plaintiff’s
vague assertion that “the record includes medical records that consistently demonstrate [her]
allegations.” Plaintiff offers no specific records to support this contention, but even if she had, an
ALJ’s decision may be supported by substantial evidence “even if that evidence could support a
decision the other way.” Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.
1993).
Lastly on this point, ALJ McMahon appropriately recognized that at the time of Plaintiff’s
favorable decision (“Comparable Point Decision” or “CPD”), she “had recently been hospitalized
for the treatment of complications of lupus including nephritis, anemia, cardiogenic shock,
nephrotic syndrome, acute renal failure, and vasculitis with lower extremity non-healing ulcers.”
(Tr. 20). But “[t]hroughout the period of disability, with appropriate medical treatment,
[Plaintiff’s] medical condition progressively improved.” (Tr. 20). ALJ McMahon appropriately
found that the severity of Plaintiff’s impairments had medically improved, and that Plaintiff is now
able to perform substantial gainful activity. The undersigned finds no error.
B. Residual Functional Capacity Determination
Plaintiff next suggests ALJ McMahon’s RFC determination is not supported by substantial
evidence. (DN 14, at PageID # 698). She argues the record evidence, along with her credible
hearing testimony, do not support a finding that she can perform sustained light work. (Id. at
PageID # 705). The Commissioner submits that ALJ McMahon reasonably concluded that Plaintiff
could perform a range of light work. (DN 19, at PageID # 725).
A claimant’s RFC is defined as the “maximum degree to which the individual retains the

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capacity for sustained performance of the physical-mental requirements of jobs.” 20 C.F.R. Pt.
404, Subpt. P, App. 2 § 200.00(c). Put otherwise, the RFC is the most a claimant can do despite
his physical and mental limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). An ALJ bases his
RFC determination on “all of the relevant medical and other evidence” in the case record. Id. (a)(3).
This requires the ALJ to evaluate the persuasiveness of the medical opinions in the record and
assess the claimant’s subjective allegations. 20 C.F.R. §§ 404.1520c, 404.1529(a).
ALJ McMahon limited Plaintiff to light work with several additional limitations. Plaintiff
relies on her previous assertions that “she is a credible witness” and “the record includes medical
records that consistently demonstrate [her] allegations” to argue that ALJ McMahon’s RFC
determination is erroneous. (DN 14, at PageID # 705). As discussed in the previous section, ALJ
McMahon’s analysis of Plaintiff’s subjective complaints comports with the regulations, and this
argument is unpersuasive.
Plaintiff also criticizes ALJ McMahon for failing to explain why, after the first hearing,
she found Plaintiff capable of only sedentary work, but after the second, she found Plaintiff capable
of light work. (DN 14, at PageID # 705). Importantly here, the Appeals Council vacated ALJ
McMahon’s initial decision and remanded Plaintiff’s case. Since the March 9, 2018 decision was
vacated, it was not a “final decision” that requires deference. See 20 C.F.R. § 404.955 (“The
decision of the administrative law judge is binding on all parties to the hearing unless . . . the
Appeals Council reviews your case.”); see also Kearney v. Colvin, 14 F. Supp. 3d 943, 949 (S.D.
Ohio 2014) (“An ALJ’s decision on the merits of a disability application does not become final
and binding if the Appeals Council vacates that decision and remands the matter for further
proceedings.”); Duda v. Sec’y of H.H.S., 834 F.2d 554, 555 (6th Cir.1987) (concluding that a
Remand Order is not a final decision by the Commissioner).

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The Commissioner further notes that ALJ McMahon’s second decision does not run afoul
of Earley v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir. 2018), but neither Earley nor Drummond
v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997) are applicable to Plaintiff’s case. In
Drummond, the Sixth Circuit determined that “where the Commissioner has made a final decision
concerning a claimant’s entitlement to benefits,” he is bound by this determination under principles
of res judicata absent changed circumstances. 126 F.3d 837, 842 (6th Cir. 1997). The Social
Security Administration expounded on Drummond’s holding in Acquiescence Ruling 98-4,
clarifying that “changed circumstances” requires “new and material evidence” relating to the prior
ALJ’s finding “or a change in the law, regulations or rulings affecting the finding or the method
for arriving at the finding.” SSAR 98-4(6), 1998 WL 274052, at *29773 (June 1, 1998). The Sixth
Circuit revisited Drummond in Earley, finding that when an ALJ considers a subsequent disability
claim for a new period of disability, he is permitted to review the prior ALJ’s finding but is not
bound by it.
ALJ McMahon was not required to rely on, or even consider, her initial decision, since it
was not a final decision. See Wireman v. Comm'r of Soc. Sec., 60 Fed. Appx. 570, 570 (6th Cir.
2003) (reasoning that Drummond applies only to final decisions and noting “[t]he only final
decision in this case is the . . . decision which is now before this Court. All other decisions relevant
to [plaintiff’s claim] never became final as they were vacated pursuant to remand[] for further
proceedings”). A new hearing was held on Plaintiff’s claims, and more than two years elapsed
between the two decisions. Moreover, one of the Appeals Council’s directives on remand was to
determine whether Plaintiff had become disabled again between the date of rehearing and the date
of ALJ McMahon’s decision. This determination would necessarily require ALJ McMahon to
consider whether Plaintiff’s impairments and symptoms had worsened or improved since her first

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decision. It was not error for ALJ McMahon to reevaluate the evidence—as explicitly ordered by
the Appeals Council—and make a finding consistent with the evidence, albeit different from her
first conclusion.
ALJ McMahon’s RFC determination is overall well-considered. She provided appropriate
limitations based on Plaintiff’s medically determinable impairments, allowing for only light work
with specific restrictions. While evidence may exist to support some of Plaintiff’s subjective
complaints deemed “less than fully credible,” ALJ McMahon thoroughly considered Plaintiff’s
medical records, hearing testimony, and reports of daily activities and subjective complaints. ALJ
McMahon adequately articulated her findings in accordance with the regulations and the
undersigned finds no error.
C. Performance of Past Relevant Work
Lastly, Plaintiff submits that ALJ McMahon’s finding that she could perform her past
relevant work as a mortgage clerk and bank teller was not supported by substantial evidence. (DN
14, at PageID # 698). The only elaboration Plaintiff offers on this point is that she “challenges
some of the findings the ALJ made at the fifth step in the sequential evaluation process” which
includes her “ability to perform other work in the national economy.” (Id. at PageID # 700). She
cites to no evidence ALJ McMahon failed to consider or that would undermine her finding.
It is well-established that “issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.” United States v. Layne, 192 F.3d
556, 566 (6th Cir. 1999) (citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)); see
also Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir. 1995) (observing that “[w]e consider issues
not fully developed and argued to be waived”); Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir.
2007) (“We decline to identify and address the arguments that Petitioner could have made but did

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not, and instead find that he has waived any possible challenge[.]”). Since Plaintiff offers this
contention wholly undeveloped, the undersigned deems it waived.
Regardless, Plaintiff’s argument would fail. ALJ McMahon found that Plaintiff could
perform her past relevant work because neither position (mortgage clerk or bank teller) exceeded
her residual functional capacity as actually or generally performed. (Tr. 29, 30). Dr. Stephanie
Barnes, an impartial vocational expert, testified at the March 2019 hearing that a person with
Plaintiff’s RFC could meet the demands of these positions, considering both their levels of exertion
and complexity as described in the Dictionary of Occupational Titles (DOT). (Id.). ALJ McMahon
credited Dr. Barnes’ expert testimony because it was consistent with the DOT and, as stated above,
it is not for this Court to resolve questions of credibility. Cutlip, 25 F.3d at 286. The undersigned
finds no error in ALJ McMahon’s determination that Plaintiff can perform her past relevant work.
ORDER
For the above-stated reasons, the Court finds the Commissioner’s decision is supported by
substantial evidence in the record and complies with the applicable regulations. IT IS
THEREFORE ORDERED that the final decision of the Commissioner is AFFIRMED.
This is a final and appealable Order and there is no just cause for delay.

August 1, 2022

Copies:

Counsel of Record

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