Kennedy v. Colvin
Filing
17
ORDER denying 14 Motion to Reverse the Decision of the Commissioner; granting 15 Motion for Judgment on the Pleadings. The Clerk is directed to administratively close this case. Signed by Judge Victor A. Bolden on 3/27/2018. (McDonough, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JACQUELINE KENNEDY,
Plaintiff,
No. 3:15-cv-1205 (VAB)
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
RULING ON MOTION TO REVERSE THE DECISION OF THE COMMISSIONER
Jacqueline Kennedy (“Plaintiff”) filed this administrative appeal under 42 U.S.C. §
405(g) against Carolyn Colvin, the Commissioner of Social Security (“Defendant” or “the
Commissioner”), seeking to reverse the decision of the Social Security Administration (“SSA”)
denying her claim for Title II disability insurance benefits under the Social Security Act. Compl.
at 1, ECF No. 1.
Ms. Kennedy moves for an order reversing the decision of the Commissioner or, in the
alternative, an order remanding her case for rehearing. Mot. to Reverse, ECF No. 14. The
Commissioner has moved for an order affirming the decision of the Commissioner. ECF No. 15.
For the reasons that follow, Ms. Kennedy’s motion is DENIED, and the Commissioner’s
motion is GRANTED.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Facts
Born on October 16, 1959, Tr. at 26, Ms. Kennedy graduated from high school and
received no other vocational training. Tr. 35. When she started treatment, she lived in Hartford,
Connecticut. Tr. 410.
1.
Medical Evidence
Ms. Kennedy’s medical history includes diabetes mellitus, breast cancer, bi-polar
disorder, major depressive disorder, post-traumatic stress disorder, anxiety disorder, arthritis,
lumbar pain, and hypertension. Tr. 305, 307, 320, 334, 338, 349–50, 353, 355, 359, 361, 366,
383, 385, 401, 406–07, 413, 417–18, 420, 423–24, 427–34, 437, 442, 447, 458, 464, 476, 478,
492. Her diabetes is “poorly controlled,” Tr. 305, 407, 458, and her hypertension is uncontrolled,
Tr. 308–10, and she is, as a result, at risk of stroke or myocardial infarction, Tr. 310. She also has
blurred vision while reading. Tr. 325.
During the spring and summer of 2010, Ms. Kennedy was diagnosed with stage III breast
cancer. Tr. 342–44 (documenting discovery of 2.5 cm mass in her left breast and diagnosing
suspected metastatic disease in lymph nodes), 392–95 (confirming presence of stage III
carcinoma with metastases in lymph nodes), 398–99, 497–504 (confirming through MRI primary
tumor in left breast and enlarged lymph nodes in left axilla). On June 4, 2010, she had surgery to
remove a cancerous tumor and metastases in the axillary lymph nodes. Tr. 334–35. She was
discharged the following day. Tr. 347–48. On June 17, 2010, a radiation oncologist examined her
and recommended radiation therapy to prevent a local recurrence. Tr. 488–89. She underwent
chemotherapy for five months and radiation for two months, and she has experienced hot flashes
since that treatment. Tr. 320, 350.
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On August 16, 2010, Ms. Kennedy visited Community Health Services. Tr. 475. She
explained that she had stopped taking her blood pressure medication because it made her feel
depressed, and that she would like to switch her medication. Id. Her blood pressure was elevated
and uncontrolled; the advanced practice registered nurse (APRN), Rita Rivera, changed her
medication, and noted that Ms. Kennedy was undergoing chemotherapy and experiencing side
effects from the treatment. Tr. 476. She also noted that Ms. Kennedy had “benign essential
hypertension,” “poorly controlled” diabetes mellitus, and breast cancer. Tr. 476.
On August 21, 2010, Ms. Kennedy returned to Community Health Services for a diabetic
foot screening with podiatrist Sherwin Tucker, DPM. Tr. 328, 474. He noted that she had newly
been diagnosed with diabetes mellitus, and had been referred for a foot screen; he also marked
that she did not report podiatric complaints, including that she was not experiencing tingling in
her ankles, legs, or feet. Tr. 328. Dr. Tucker counseled Ms. Kennedy about diabetes mellitus and
foot care. Tr. 329.
On August 26, 2010, Ms. Kennedy met with a registered dietician, Leila Bruno, MS, RD,
CDE. Tr. 325. Ms. Bruno noted that Ms. Kennedy had been newly diagnosed with diabetes
mellitus and that she also had breast cancer. Id. Ms. Kennedy reported that she had lost ten
pounds over the past three months, was experiencing increased blurry vision, decreased appetite,
and nausea, especially after the chemotherapy treatments. Id. Ms. Bruno’s report also stated that
Ms. Kennedy did not lack adequate sleep, and that she exercised regularly by walking, though
less since she began receiving chemotherapy treatment. Tr. 326. Ms. Kennedy also reported that
she was not feeling pain or numbness in her lower body, and Ms. Bruno noted that Ms.
Kennedy’s diabetes mellitus was under “fairly good control.” Tr. 326. On September 2, 2010,
Ms. Kennedy and Ms. Bruno attended a diabetes education class. Tr. 324–25.
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On December 22, 2010, Ms. Kennedy visited Community Health Services to request a
refill of her blood pressure medication and met with registered nurse Everol Ennis. Tr. 322–23;
467–69. She had stopped taking her diabetes mellitus medication because “she read about [a]
side effect of nausea and stated that chemo was already making her nauseous.” Tr. 322. Her final
round of chemotherapy was scheduled for that week. Id. She also stated that she stopped taking
her blood pressure medication because it made her depressed, but that she was ready to begin
taking the medication again. Id. Nurse Ennis assessed that Ms. Kennedy had “[b]enign essential
hypertension poorly controlled” because Ms. Kennedy had not been taking medication for
months. Tr. 323. She also assessed that Ms. Kennedy’s diabetes mellitus was “poorly controlled
secondary to no medication for months.” Id.
On January 24, 2011, Ms. Kennedy visited Community Health Services for a follow-up
appointment and met with Dr. Daman Ali. Tr. 320–21; 465–66. At that point, Ms. Kennedy had
completed chemotherapy and was scheduled for radiation therapy to begin after a few weeks. Tr.
320. Dr. Ali noted that Ms. Kennedy’s blood pressure was elevated, and that she reported that
she had been experiencing hot flashes since finishing chemotherapy. Tr. 321.
Ms. Kennedy underwent radiation therapy until late April 2011. Tr. 494–95. She reported
having a localized skin reaction and feeling fatigued after completing the radiation, but she
otherwise tolerated the treatment and recovered well. Tr. 492. She had a mammogram on May
11, 2011, that revealed no evidence of malignancy. Tr. 341, 491.
On May 18, 2011, Ms. Kennedy returned to Community Health Services and met with
Dr. Darren Martin, who checked her blood pressure and blood sugar. Tr. 461. Dr. Martin noted
that Ms. Kennedy’s blood sugar was within normal limits, and her blood pressure was slightly
elevated. Id. Dr. Martin also noted that Ms. Kennedy reported that she was complying with
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medications, but also reported that she does not like to take medications; Dr. Martin advised her
of the importance of complying with her prescription. Id.
On June 3, 2011, Ms. Kennedy returned to Ms. Bruno for nutrition counseling. Tr. 318–
19; 459–60. Ms. Bruno noted that Ms. Kennedy had elevated blood pressure and was
overweight, and that Ms. Kennedy reported that she was walking, doing exercise, had new
glasses, and that her energy was improving. Tr. 318–19. Ms. Bruno also noted that she suspected
that Ms. Kennedy’s diabetes mellitus had not improved, and that she had hyperlipidemia. Tr.
319. Ms. Bruno counseled Ms. Kennedy about her “medication administration and compliance”
and about her diet. Tr. 319.
On June 7, 2011, Ms. Kennedy visited Community Health Services for a physical. Tr.
455. She reported anxiety and depression, as well as feeling tired. Tr. 456. She also visited
Community Health Services on June 21, 2011, and reported that she had been feeling “weird” on
her medication, and that she had been experiencing headaches for about two weeks. Tr. 305.
On July 5, 2011, Ms. Kennedy returned to Community Health Services for a blood
pressure check, and met with APRN Susan Neagle. Tr. 316. Nurse Neagle recorded that Ms.
Kennedy’s blood pressure was elevated. Tr. 316–17. Nurse Neagle renewed Ms. Kennedy’s
prescription, making some changes to the medication, and told Ms. Kennedy to follow up in two
weeks. Tr. 315. Ms. Kennedy missed the next appointment; she returned on September 8, 2011,
for refills of her prescription. Id. She also returned on October 25, 2011. Tr. 311–13. Nurse
Neagle noted on that visit that Ms. Kennedy had elevated blood pressure, and that her diabetes
was better under control. Tr. 313.
On November 8, 2011, Ms. Kennedy visited Community Health Services for a blood
pressure check. Nurse Neagle noticed an improvement since Ms. Kennedy’s last visit, and also
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noted that Ms. Kennedy “stated that she is not compliant with her medications because she has a
problem with focusing because she is out of a job,” and that Ms. Kennedy “states that she takes
the medication probably three times out of the week.” Tr. 310. Nurse Neagle advised Ms.
Kennedy of the “importance of taking all medications as prescribed.” Tr. 310. On December 1,
2011, Ms. Kennedy returned, and Nurse Neagle noted that her blood pressure was
“uncontrolled.” Tr. 309–10.
On February 23, 2012, Ms. Kennedy had a bilateral mammogram that revealed no
malignancy. Tr. 340.
On July 3, 2012, Ms. Kennedy returned to Community Health Services for a refill of her
prescription. Tr. 307–08; 441–42. She also requested, and was prescribed, Effexor for
depression. Tr. 307–08. She returned on June 21, 2012, for a blood pressure check; she reported
that she had not been taking her medication because she “felt ‘weird on it.’” Tr. 305.
On September 14, 2012, through the referral of her primary care physician, Ms. Kennedy
met with a licensed clinical social worker, Maritza Degonzalez, because Ms. Kennedy had
stopped eating and was sleeping ten or eleven hours each day. Tr. 378. Ms. Kennedy reported to
Ms. Degonzalez that she had plans to commit suicide by overdosing on medication, and she
described a previous suicide attempt, several years earlier: she had set her car on fire while inside
it, and then was hospitalized at Mt. Sinai Hospital. Tr. 378.
Ms. Kennedy also reported a history of alcohol abuse, a previous boyfriend who had
physically and verbally abused her, and that she had recently lost her job and faced eviction. Tr.
379. Ms. Degonzalez recorded that Ms. Kennedy appeared depressed, that her thought process
appeared impaired, and that her thought content appeared relatively impaired. Tr. 380. Ms.
Degonzalez also referred Ms. Kennedy to go to the emergency room “for further evaluation and
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possible in patient hospitalization for safety and medication evaluation.” Tr. 382. Ms. Kennedy
was taken to the hospital in an ambulance. Tr. 382. Once there, hospital staff diagnosed Ms.
Kennedy as having had an anxiety attack and being depressed. Tr. 350.
On September 29, 2012, Ms. Kennedy met with licensed clinical social worker Joanne
Gayeski and psychologist Margarita Hernandez. Tr. 349–53. Ms. Kennedy reported her medical
history, described above, as well as her typical behavior: she described that she was
“independent but is not self-motivated,” that she “can do her own grooming, cleaning, shopping,
and cooking,” and that she “is able to take public transportation without assistance.” Tr. 351. The
report also stated that Ms. Kennedy “is knowledgeable of how to pay bills, use the telephone
directory, and utilize postal and banking services.” Id. Ms. Kennedy stated that she was
“currently working part time as a personal care assistant, indicating that her start date was July
2012.” Id. She reported that she worked fifteen hours bi-weekly. Id. She also reported that before
that job, she worked as a supervisor “for female adolescents in a supervised living apartment
program,” and that she quit that job “due to a client directing threatening behavior toward her.”
Id. She also stated that she had previously worked as an American Airlines reservation agent and
as a bartender. Id.
Ms. Gayeski and Dr. Hernandez diagnosed Ms. Kennedy with mixed anxiety-depressive
disorder and alcohol dependence, with moderate symptoms. Tr. 353. They also noted that she
was employed part-time, that she had a history of trauma, was the victim of neglect, had suffered
emotional and physical abuse, was the witness and victim of domestic violence and a victim of
sexual abuse and two sexual assaults, and that she had a family history of psychiatric and mental
health issues including substance abuse. Tr. 353. They stated in their clinical impressions that
“Ms. Kennedy is reporting clinically significant symptoms of anxiety and depression,” but found
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that “the criteria are not met for either a specific Mood Disorder or a specific Anxiety Disorder.”
Tr. 352. They also stated that Ms. Kennedy “is able to relate well with others,” but she “has
struggled with tolerating stressors, presenting with a significant substance abuse history.” Tr.
353. Moreover, they reported that “Ms. Kennedy has demonstrated a maladaptive pattern of
alcohol use leading to clinically significant impairment.” Tr. 353. They concluded that “[h]er
prescription medication appears to support some of her medical issues, but there was lack of
documentation of her medication and treatment,” and she “alleges not to have any physical
limitations and is able to complete all daily activities independently.” Tr. 353.
Ms. Kennedy attended nine group therapy sessions at Community Health Services during
the fall of 2012, and then began to attend individual therapy sessions with licensed professional
counselor Amy Mourabit. Tr. 369–71. Ms. Mourabit recorded that Ms. Kennedy had “severe
recurrent major depression.” Tr. 370. Ms. Mourabit also noted that Ms. Kennedy “reported
having a recent exacerbation of depression symptoms, isolating at home, lack of social support,
financial issues due to leaving job . . ., end of relationship with boyfriend two months ago, and is
in the process of being evicted from her apartment.” Tr. 371. Ms. Mourabit recommended that
Ms. Kennedy continue to attend weekly group therapy sessions and individual therapy sessions.
Tr. 371. Ms. Kennedy met with Ms. Mourabit again on November 2, 2012, and reported feeling
depressed and anxious, particularly about potential eviction. Tr. 367–68.
On November 5, 2012, Ms. Kennedy met with Dr. Eugenia Popescu. Tr. 365. Dr.
Popescu reported that Ms. Kennedy presented problems of depression and insomnia, among
other things, and prescribed medication for each. Tr. 367.
On November 9, 2012, Ms. Kennedy met again with Ms. Mourabit. Tr. 363–64. Ms.
Mourabit assessed Ms. Kennedy as having alcohol abuse, cannabis abuse, severe recurrent major
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depression, and acute post-traumatic stress disorder. Tr. 363. Ms. Kennedy reported that the new
medication that Dr. Popescu had prescribed had decreased Ms. Kennedy’s desire to drink. Tr.
364. She also “reported having a new diagnosis possibly Bipolar Disorder . . . and stated that her
father was diagnosed with that years ago.” Tr. 364.
On November 19, 2012, Ms. Kennedy returned to Dr. Popescu to adjust her medication
because she continued to feel depressed. Tr. 360–61. Dr. Popescu gave Ms. Kennedy a new
prescription and recommended that she continue therapy. Tr. 361.
On November 20, 2012, Ms. Kennedy met with Ms. Mourabit. Tr. 359–60. Ms. Kennedy
reported that she “had an emotional meltdown” recently during a church service, and that she
“[had] to go to trial for eviction from her apartment” and did not have a lawyer. Tr. 360. She also
reported that she no longer received disability benefits, which she had been receiving while she
was being treated for breast cancer, and that she had difficulty paying her rent. Tr. 360. Ms.
Kennedy also stated that she planned to visit CT Works for guidance to find a new job, and that
she had last had a drink two weeks earlier. Tr. 360. Ms. Mourabit also noted that Ms. Kennedy
“is not at a place where she can accept [she] might have addiction issues[.]” Tr. 360.
On November 26, 2012, the physician who had been treating Ms. Kennedy’s breast
cancer reported that Ms. Kennedy had completed treatment in December 2010, and there had
been no evidence since then of recurrence, or of significant residual effects of chemotherapy and
radiation treatment. Tr. 354.
On December 10, 2012, Ms. Kennedy met with Ms. Mourabit and explained that she
would soon be evicted and planned to move to New Britain, Connecticut, where her son was a
landlord. Tr. 356–57. Ms. Kennedy also reported “feeling [that the] new psychiatric medications
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are helping her to not feel so high, low, and [that she] has been decreasing irritability, anger,
mood swings.” Tr. 357.
On December 18, 2012, Ms. Kennedy met with Dr. Popescu to manage her medication.
Tr. 355–56. Dr. Popescu noted that Ms. Kennedy had “mild depression, decreased labile mood,”
did not report side effects, and “[l]oves the new place in New Britain.” Tr. 356.
Due to “issues with Medicare, Medicaid insurance,” Ms. Kennedy stopped coming to her
therapy sessions after December 18, 2012. Tr. 410. Community Health Services reportedly
attempted to contact Ms. Kennedy several times, but eventually administratively discharged her
file on February 28, 2013, because she was not attending therapy sessions. Tr. 410.
On May 16, 2013, Ms. Kennedy returned to Community Health Services for treatment for
back pain. Tr. 406. Her report showed no abnormalities, but her blood pressure was “elevated
due to noncompliance” with her medication. Tr. 407.
B.
Procedural History
Ms. Kennedy filed an application for a period of disability and disability insurance
benefits on July 2, 2012, alleging disability beginning March 27, 2012. Tr. at 18. Her claim was
initially denied on December 13, 2012, and denied again on reconsideration on March 1, 2013.
Id. On May 31, 2013, Ms. Kennedy filed a written request for a hearing under 20 C.F.R. §
404.929. Id. On March 27, 2014, the SSA held a hearing in Hartford; Ms. Kennedy appeared,
represented by counsel, as did Hank Lerner, an impartial vocational expert. Id.
Ms. Kennedy stated that she was working as a personal care assistant for one individual.
Tr. 35–36. The job, she explained, involved cleaning and heating food, for about four hours each
week. Tr. 36. She also stated that she had worked a similar job for a different woman previously,
for about a year, from 2012 until 2013. Tr. 36. Before that, Ms. Kennedy did administrative work
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for about a year between 2008 and 2009, and before that, worked in the reservation sales
department of American Airlines. Tr. 38.
She testified that she received disability insurance benefits after she was diagnosed with
breast cancer for a closed period of time, and that, since the chemotherapy and radiation, she has
suffered from anxiety and memory loss. Tr. 39–40. She described having anxiety attacks, racing
thoughts, trouble sleeping, and low energy. Tr. 42. She stated that she would not be able to
perform a full-time job. Tr. 44.
Hank Lerner also testified as a vocational expert. Tr. 49–55. He testified that he had
reviewed Ms. Kennedy’s vocational record before the hearing. Tr. 49. He testified that the work
that Ms. Kennedy was doing was either light or medium exertional work and that it was low
level semiskilled. Tr. 49–50. He testified that Ms. Kennedy “could not perform past relevant
work, the rationale being that that past relevant work is not simple, routine, one or two step,
simple type tasks.” Tr. 52. He also stated that “[t]here would be unskilled positions that are
simple routine tasks with minimum decision making, changes, minimum use of [judgment], and
no strict time productions and quotas,” such as a cafeteria attendant, an injection molding
machine tender, or a hand packager of plastic parts. Tr. 52–53. He also testified that there would
be 236,000 jobs as a cafeteria attendant, 6,000 jobs as an injection molding machine tender, and
4,400 jobs as an inspector and hand packager of plastic parts available nationally. Tr. 52–53.
After the hearing, on April 15, 2014, the Administrative Law Judge (“ALJ”) found that
Ms. Kennedy was not entitled to disability insurance benefits, based on the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since
March 27, 2012, the alleged onset date (20 C.F.R. 404.1571 et seq.).
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3. The claimant has the following severe impairments: anxiety
disorder and mixed anxiety-depressive disorder (20 C.F.R.
404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a full range
of work at all exertional levels, but with the following nonexertional
limitations: The claimant is able to understand and remember simple
one or two-step instructions. The claimant can carry out simple tasks
in an environment with minimal changes, minimal decision-making,
and minimal use of judgment, without the need to adhere to strict
time or production quotas.
6. The claimant is unable to perform any past relevant work (20
C.F.R. 404.1565).
7. The claimant was born on October 16, 1959 and was 52 years old,
which is defined as an individual closely approaching advanced age,
on the alleged disability onset date (20 C.F.R. 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is ‘not disabled,’
whether or not the claimant has transferable job skills (see SSR 8241 and 20 C.F.R. Part 404, Part P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
C.F.R. 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as define din the
Social Security Act, from March 27, 2012, through the date of this
decision [April 15, 2014] (20 C.F.R. 404.1520(g)).
Tr. 20–27.
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On June 13, 2014, Ms. Kennedy requested a review of the ALJ Decision, Tr. 12–14, and
on June 12, 2015, the Appeals Council reviewed Ms. Kennedy’s case and found that she was not
entitled to disability insurance benefits, Tr. 15–17.
On August 10, 2015, Ms. Kennedy filed a Complaint in this Court seeking to appeal the
Appeals Council’s decision. ECF No. 1. On February 22, 2016, she moved for an order reversing
the decision. ECF No. 14-1 at 2. She also filed an alternative motion for remand, seeking a new
hearing and a new decision “to rectify the errors committed by the ALJ.” Id. at 4.
II.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court reviewing a disability determination “must
determine whether the Commissioner’s conclusions ‘are supported by substantial evidence in the
record as a whole or are based on an erroneous legal standard.’” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998) (quoting Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997)); see also
Moreau v. Berryhill, 2018 WL 1316197, at *3 (D. Conn. 2018) (“Under section 405(g) of title 42
of the United States Code, it not a function of the district court to review de novo the ALJ’s
decision as to whether the claimant was disabled . . . . Instead, the court may only set aside the
ALJ’s determination as to social security disability if the decision ‘is based upon legal error or is
not supported by substantial evidence.’”) (internal citation omitted) (quoting Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998)).
The ALJ’s decision is supported by substantial evidence if there “is ‘more than a mere
scintilla’” of evidence to support the conclusion. Brault v. Social Sec. Admin., Com’r, 683 F.3d
443, 447 (2d Cir. 2012) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial
evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. at 447–48 (quoting Moran, 569 F.3d at 112). This standard of review
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is “very deferential.” Id. at 448 (“But it is still a very deferential standard of review—even more
so than the ‘clearly erroneous’ standard.”) (citing Dickson v. Zurko, 527 U.S. 150, 153 (1999)).
III.
DISCUSSION
The Social Security Act defines disability as the “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. § 423(d)(1)(A).
To determine whether a claimant is disabled under the Social Security Act, an ALJ must
perform a five-step evaluation. See 20 C.F.R. § 416.920(a)(4)(i)–(v). First, the ALJ must
consider whether the claimant is performing gainful work activity. Id. § 416.920(a)(4)(i). If the
claimant is doing substantial gainful activity, the claimant is not disabled. Id. Second, the ALJ
must consider the medical severity of the impairment that limits his or her ability to do basic
work activities. Id. § 416.920(a)(4)(ii). If the claimant does have a severe medical impairment,
then the ALJ considers whether, based on the medical evidence, the claimant has an impairment
that “meets or equals” an impairment listed in Appendix 1 of the regulations. Id. §
416.920(a)(4)(iii). If the claimant does have an impairment that meets or equals the impairments
in that list, and the impairment meets the duration requirement, i.e., lasts at least twelve months
or results in death, see 20 C.F.R. § 416.909, then the ALJ will find the claimant disabled without
considering non-medical evidence, such as vocational experience, education, and work
experience. 20 C.F.R. § 416.920(a)(4)(iii).
Fourth, the ALJ considers the claimant’s “residual functional capacity and [ ] past
relevant work.” 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is able to perform past relevant
work, the claimant is not disabled. Id. Finally, fifth, the ALJ considers the claimant’s “residual
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functional capacity and [ ] age, education, and work experience” to evaluate whether the
claimant “can make an adjustment to other work.” Id. § 416.920(a)(4)(v). If the claimant is able
to adjust to other work, then the ALJ will find the person not disabled; if the claimant cannot
make the adjustment, the ALJ will find the person disabled. Id.
Here, the ALJ found that Ms. Kennedy had not engaged in substantial gainful activity
since her alleged onset date, March 27, 2012, and found that her anxiety disorder and mixed
anxiety-depressive disorder were severe impairments. Tr. 20. The ALJ next found, however, that
“[t]he severity of the claimant’s mental impairments, considered singly and in combination, do
not meet or medically equal the criteria [for a disability].” Tr. 21. The ALJ explained that for a
mental impairment to be severe enough to constitute a disability, it must:
result in at least two of the following: marked restriction of activities
in daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of extended
duration. A marked limitation means more than moderate but less
than extreme. Repeated episodes of decompensation, each of
extended duration, means three episodes within 1 year, or an average
of once every 4 months, each lasting for at least 2 weeks.
Tr. 22.
Applying that standard to this case, the ALJ found that Ms. Kennedy has “mild
restriction” in her activities of daily living; she is able to perform the “mental demands of routine
activities of daily living,” to live independently, “work as a personal care attendant assisting
others with activities of daily living, and uses public transportation without assistance.” Id. The
ALJ thus found her limitation mild. Id. The ALJ also found that she had mild difficulties in
social functioning, including her capacity “to interact appropriately and communicate effectively
with others.” Id. The ALJ explained that Ms. Kennedy is able to “communicate well,” carry on a
conversation, and relate to others. Id. In addition, the ALJ found that Ms. Kennedy had moderate
15
difficulties in her concentration, persistence, and pace. Id. Finally, the ALJ found that Ms.
Kennedy had not experienced episodes of decompensation. Id.
In sum, the ALJ concluded, “[b]ecause the claimant’s mental impairments do not cause at
least two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes of
decompensation, each of extended duration,” Ms. Kennedy’s limitations did not support a
finding of a disability. Id.
A.
Severe Impairment
Ms. Kennedy argues that the ALJ erred in the second step of the analysis by finding that
her “only severe impairments are anxiety disorder and mixed anxiety-depressive disorder.” Pet.
Br. at 7 (citing Tr. 20–21). She contends that the ALJ should have also found that her diabetes
mellitus, breast cancer, and hypertension were severe impairments. Id. She argues that her breast
cancer, although now in remission, is “not a ‘slight abnormality’” because “[e]ven breast cancer
that is in remission or even cured has lasting effects on the patient’s ability to function well after
treatment has ended,” and in her case, she suggests that chemotherapy and radiation contributed
to her fatigue. Id. at 7–8 (“Since these effects of Chemotherapy and Radiation and executive
functioning are well documented results of these life-saving but toxic treatments, and since Ms.
Kennedy has reported these problems in her daily functioning, the ALJ should have found Ms.
Kennedy’s breast cancer and side-effects of treatment to be severe impairments.”) (citations
omitted).
The Commissioner, on other hand, argues first that any error that the ALJ made in not
finding that Ms. Kennedy’s diabetes, breast cancer, and hypertension were not severe is
harmless. Def.’s Br. at 15. Still, the Commissioner argues, “the ALJ reasonably concluded that
Plaintiff’s diabetes and hypertension were not severe impairments.” Id. Furthermore, the
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Commissioner argues that, as for Ms. Kennedy’s breast cancer, “it is not sufficient that she
establish the mere presence of a disease or impairment. She must show that the disease or
impairment has caused functional limitations that preclude her from engaging in any substantial
gainful activity.” Id. at 16 (citing Rivera v. Harris, 623 F.2d 212, 215–16 (2d Cir. 1980)).
The Court agrees with the Commissioner that the ALJ did not err in finding that Ms.
Kennedy’s breast cancer, hypertension, and diabetes were not severe impairments. First, the ALJ
considered whether any of those conditions would have created limitations or impairments for
Ms. Kennedy, and concluded that they would not:
The longitudinal record reflects that the claimant has occasional
complaints of back pain or leg tingling, and her blood pressure is
sometimes characterized as uncontrolled. Overall, however, the lack
of exertional limitations is supported by the record, which shows
that her breast cancer is in remission and that her medically
determinable diagnoses of high blood pressure and diabetes mellitus
do not consistently cause more than minimal work-related
limitations over a twelve-month period.
Tr. 21. The Court agrees.
The ALJ’s decision was based on substantial evidence, including that Ms. Kennedy’s
doctor stated that her breast cancer had been in remission since 2010, with no signs of
recurrence, Tr. 354, and that reports from Ms. Kennedy’s doctors’ appointments did not indicate
that her hypertension or diabetes had caused her to have limitations in her abilities. See, e.g., Tr.
318–19 (describing walking, doing exercise, and improved energy levels); see also Brault, 683
F.3d at 447–48 (explaining that substantial evidence necessary to support conclusion “means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”
and that district court’s review of ALJ’s determination is “very deferential”). Rather, the record
indicates that, as the ALJ found, Ms. Kennedy’s anxiety and depression imposed limitations on
her ability to navigate daily life—not her hypertension, diabetes, or breast cancer. See, e.g., Tr.
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359–60 (describing “emotional meltdown”); Tr. 363 (assessing Ms. Kennedy with severe
recurrent major depression, and acute post-traumatic stress disorder).
In any event, the ALJ proceeded to the next step of the evaluation process—even if not
for the reasons that Ms. Kennedy now argues it should have proceeded—and as a result, any
error in the ALJ’s determination of the status of Ms. Kennedy’s breast cancer, hypertension, and
diabetes is harmless. See Stanton v. Astrue, 370 Fed. App’x 231, 233 n.1 (2d Cir. 2010) (finding
harmless error where “the ALJ did identify severe impairments at step two, so that Stanton’s
claim proceeded through the sequential evaluation process. Further, contrary to Stanton’s
argument, the ALJ’s decision makes clear that he considered the ‘combination of impairments’
and the combined effect of ‘all symptoms’ in making his determination.”) (citing 42 U.S.C. §
423(d)(2)(B) (requiring consideration of “combined effect of all of the individual’s
impairments”); accord 20 C.F.R. § 404.1523).
B.
Factual Errors
Ms. Kennedy also argues that the ALJ committed a “serious factual error of the
evidence” by mischaracterizing her medical records. Pet. Br. at 9. In particular, Ms. Kennedy
argues that the ALJ erroneously stated that Ms. Kennedy is able to perform housework, prepare
meals, and go out with friends. Id. (quoting Tr. 24). Ms. Kennedy argues that “the ALJ made [it]
seem as if Ms. Kennedy is able to perform a wider variety of tasks than her testimony actually
reflected,” and then “used this misstatement to find Ms. Kennedy not entirely credible.” Id. at 10.
The Court disagrees.
The ALJ did note that Ms. Kennedy is able to “work part-time, perform housework, shop,
and prepare meals,” and that the “record also reflects that she socializes, going out to clubs with
friends.” Tr. 24. The ALJ’s explanation of his denial, however, continues: he cites the medical
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record to support his conclusion that Ms. Kennedy “had some difficulties with attention and
concentration but concluded that she is capable of sustaining attention sufficiently to perform
simple tasks,” and that her mental status examinations reflected “generally normal findings” that
did not “support the claimant’s testimony regarding disabling memory problems.” Tr. 24. The
ALJ also noted that Ms. Kennedy’s “most recent treatment notes characterize the claimant’s
depression as ‘mild’ and note a decrease in mood lability, which does not support disabling
limitations,” and found “no indication of a disabling level of panic episodes.” Tr. 24. The ALJ
therefore concluded that Ms. Kennedy “is capable of unskilled type work,” and that she is “able
to work within the restrictions assigned.” Tr. 25.
The Court does not find a serious factual error in this characterization of the medical
records. Rather, the ALJ took into consideration that Ms. Kennedy recently had an anxiety
attack, Tr. 24 (“[T]he claimant described a panic episode to the consultative examiner and
reported an ‘emotional meltdown’ at church in October 2012.”), and noted her difficulty in
concentrating, id. (“the claimant reported suicidal ideation and a prior attempt and was
transported to St. Francis Hospital for evaluation,” which found that “the claimant had some
difficulties with attention and concentration but concluded that she is capable of sustaining
attention sufficiently to perform simple tasks”), but ultimately found that the medical reports in
the record did “not support the claimant’s testimony regarding disabling memory problems,” id.
The Court agrees, and finds that the ALJ’s conclusions were supported by substantial evidence in
the record, including the reports of Ms. Kennedy’s treating physicians. See Schaal, 134 F.3d at
501 (“[W]e must determine whether the Commissioner’s conclusions are supported by
substantial evidence in the record as a whole or are based on an erroneous legal standard.”)
(quotation marks and citation omitted).
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C.
Available Jobs
Ms. Kennedy also argues that, at the fifth step of the disability evaluation, “the burden of
proof is on Defendant to show the actual number of jobs that exist in the State of Connecticut,
that someone with Ms. Kennedy’s actual Residual Functional Capacity can perform,” and argues
that in this case, the ALJ failed to do so. Pet. Br. at 11. Defendant, on the other hand, argues that
the ALJ “properly relied on the vocational testimony at step five to conclude that jobs exist in
significant numbers in the national economy that Plaintiff could perform, and thereby concluded
that Plaintiff was not disabled under the Act.” Def.’s Br. at 21 (citing Tr. 27).
Ms. Kennedy is correct that, at step five, the Commissioner has the burden of proving
that Ms. Kennedy is capable of working. Bavaro v. Astrue, 413 Fed. App’x 382, 384 (2d Cir.
2011) (“The Commissioner has the burden in step five of the disability determination to prove
that the claimant is capable of working.”). The Court disagrees, however, that the Commissioner
must prove that there are jobs “that exist in the State of Connecticut” that someone with Ms.
Kennedy’s capacities could perform. See Pet. Br. at 11. Instead, “work exists in the national
economy when it exists in significant numbers either in the region where you live or in several
other regions in the country.” 20 C.F.R. § 404.1566(a). “It does not matter whether . . . [w]ork
exists in the immediate area in which you live.” Id. The ALJ therefore properly relied on the
evaluation of the vocational expert, who listed three jobs that he had determined that Ms.
Kennedy would be capable of performing: cafeteria attendant, injection molding machine tender,
and hand packager of plastic parts. See Tr. 52–53.
The Court finds that the ALJ properly relied on the vocational expert’s testimony
regarding hypothetical available jobs at Ms. Kennedy’s capability levels. See Calabrese v.
Astrue, 358 Fed. App’x 274, 276 (2d Cir. 2009) (“An ALJ may rely on a vocational expert's
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testimony regarding a hypothetical as long as the facts of the hypothetical are based on
substantial evidence . . . and accurately reflect the limitations and capabilities of the claimant
involved.”) (citations omitted). Ms. Kennedy’s motion to vacate the ALJ’s decision or to remand
for a new hearing therefore is denied. The Commissioner’s motion for an order affirming the
decision is granted.
IV.
CONCLUSION
For all of the foregoing reasons, Ms. Kennedy’s motion to vacate the ALJ’s decision or to
remand for a new hearing therefore is DENIED. The Commissioner’s motion for an order
affirming the decision is GRANTED.
SO ORDERED at Bridgeport, Connecticut, this 27th day of March, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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