Kenyon v. Commissioner of Social Security
ORDER denying 19 plaintiff's motion to reverse the decision of the Commissioner; and granting 20 defendant's motion to affirm the decision of the Commissioner. See attached ruling. Signed by Judge Donna F. Martinez on 3/23/17. (Brierley, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LORI ANN KENYON,
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
CASE NO. 3:15CV1414(DFM)
RULING ON PENDING MOTIONS
Plaintiff, Lori Ann Kenyon, seeks judicial review of the
denial of her applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”).1
filed applications for DIB and SSI on February
14, 2012, alleging a disability onset date of August 31, 2008.
Her applications were denied initially and upon reconsideration.
(R. 236.) An Administrative Law Judge (“ALJ”) held a hearing on
December 13, 2013.
The ALJ found at step 1 that plaintiff has not engaged in
substantial gainful activity since her alleged onset date. (R.
238.) At step 2, the ALJ found that plaintiff has the following
severe impairments: sarcoidosis; obesity; osteoarthritis;
generalized anxiety disorder; and major depressive disorder. (R.
239.) She found at step 3 that plaintiff’s conditions do not
meet or medically equal a listed impairment. (R. 239.) She
determined that plaintiff retains the residual functional
capacity (“RFC”) to perform light work, except that plaintiff is
limited to simple routine, repetitive work and only occasional
interaction with the general public. (R. 241.) At step 4, the
ALJ determined that plaintiff is unable to perform her past
relevant work. (R. 249.) At step 5, considering plaintiff’s
age, education, work experience, and RFC, the ALJ found that
jobs exist in significant numbers in the national economy that
plaintiff could perform. (R. 249.) She thus concluded that
plaintiff is not disabled within the meaning of the Social
Security Act. (R. 250.) Plaintiff appealed the ALJ’s decision
to the Appeals Council, which denied her request for review on
pending are plaintiff’s motion to reverse the decision of the
Commissioner of Social Security (“Commissioner”) (doc. #19) and
defendant’s motion to affirm the decision of the Commissioner.
Counsel filed a statement of facts and medical
chronology, which I incorporate by reference.2
For the following reasons, plaintiff’s motion is DENIED and
defendant’s motion is GRANTED.3
The standards for determining an individual’s entitlement
to DIB and SSI, the Commissioner’s five-step framework for
evaluating claims, and the district court’s review of the final
decision of the Commissioner are well-settled.
I am following
those standards, but do not repeat them here.
Plaintiff makes three arguments.
She contends that the ALJ
erred by finding that (a) her migraine headaches are not a
severe impairment; (b) her depression does not meet or medically
July 31, 2015. (R. 1-6.) Plaintiff timely appealed to this
2Plaintiff filed a proposed stipulation of facts.
#19-2.) Defendant adopts those facts, and adds a summary of the
opinions of the state agency consultants, treating sources, and
plaintiff’s statements. (R. 20-1, pp. 2-4.) In her reply
brief, plaintiff includes additional statements of her
activities of daily living. (Doc. #21.)
3This is not a recommended ruling; the parties consented to
the jurisdiction of a magistrate judge. (Doc. #15); see 28
U.S.C. § 636(c); Fed.R.Civ.P. 73(b).
equal a listed impairment; and (c) that she has the RFC to
perform light work.
I consider each argument in turn.
A. Step Two Determination
Plaintiff argues that the ALJ erred at step 2 by not
finding her migraine headaches to be severe.
to a handful of record citations to support her contention that
her migraines are severe.
In August 2005, she reported on an
“Intake Assessment/Psychosocial History” form at Integrated
Behavioral Health that she has suffered from migraines for 20
In March 2006, plaintiff was taking Percocet
to control her migraines.
Plaintiff asserts that her
migraines caused her to miss medical appointments in 2006, and
in part, caused her to lose her job in January 2007 after
missing too many days of work.
(R. 760, 773, 775, 781, 790,
Plaintiff was treated at the emergency room in January
and March 2009, September 2010, October 2011, and September 2013
for complaints of migraines, among other symptoms.4
1071-75, 1015-45, 1494-1507, 2520.)
In August 2013, plaintiff
reported to her primary care physician that she was having
migraine headaches almost every day.
record shows that plaintiff’s September 2010
hospitalization was due to a “sudden onset of chest pain that
radiated into the left arm with nausea and vomiting.” (R.
1020.) During her overnight hospitalization, plaintiff “started
to develop headaches.” (R. 1020.) In October 2011, plaintiff
presented at the emergency room complaining of severe abdominal
pain and vomiting, as well as a migraine. (R. 1497.)
argues that the record supports a finding that her migraines are
severe in that they have caused her to take medication, seek
treatment in the emergency room, miss medical appointments, and
lose a job.
“At step two of the sequential evaluation process, the
claimant has the burden of providing medical evidence which
demonstrates the severity of her condition.”
Burgos v. Astrue,
No. 309-CV-1216 (VLB), 2010 WL 3829108, at *3 (D. Conn. Sept.
An impairment is severe if it significantly limits
the claimant’s physical or mental ability to do basic work
20 C.F.R. §§ 404.1520(c), 416.920(c).
impairment also must meet the duration requirement.
severe, an impairment must have lasted or be expected to last
for a continuous period of at least 12 months, or be expected to
result in death.
20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii),
“[A] diagnosis alone is
insufficient to establish a severe impairment as instead, the
plaintiff must show that the medically determinable impairments
significantly limit the ability to engage in basic work
Durgan v. Astrue, No. 12-CV-279 (DNH/CFH), 2013 WL
1122568, at *3 (N.D.N.Y. Feb. 19, 2013).
Other than plaintiff’s subjective complaints of migraines,
which do not constitute medical opinion evidence, Dailey v.
Comm’r of Soc. Sec., No. 514CV1518 (GTS/WBC), 2016 WL 922261, at
*5 (N.D.N.Y. Feb. 18, 2016) (“Subjective complaints can be
supported by objective medical evidence and findings; however,
subjective complaints, by their very nature, cannot constitute
objective medical evidence”), plaintiff points to only six
notations in the nearly 2700 page record showing treatment for
At the time of her hearing, plaintiff
testified that she was experiencing two to three migraines a
month, but that her injectable medication was effective “[m]ost
of the time.”
(R. 449, 451.)
Substantial evidence supports the
ALJ’s finding that plaintiff’s migraines are not severe.
is no error here.5
B. Step Three Determination
Plaintiff next argues that the ALJ erred at step three by
failing to find that her depression satisfies the paragraph “C”
criteria of Listing 12.04 (depressive, bipolar and related
disorders), 20 C.F.R. Pt. 404, Subpt. P, App. 1.
To meet the paragraph C criteria for Listing 12.04,
plaintiff must show a “[m]edically documented history of a
if the ALJ had erred in determining that plaintiff’s
migraine headaches are not severe, any error is harmless because
she continued the sequential analysis and considered plaintiff’s
non-severe impairments, including migraine headaches, when
making her RFC determination. See, e.g., Reices-Colon v.
Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (“At step two, the
ALJ identified other ‘severe impairments’ . . . and therefore
proceeded with the subsequent steps. And, in those subsequent
steps, the ALJ specifically considered [plaintiff’s non-severe
impairments]. Because these conditions were considered during
the subsequent steps, any error was harmless.”).
chronic affective disorder of at least two years’ duration that
has caused more than a minimal limitation of ability to do basic
work activities,” plus one of the following:
1. Repeated episodes of decompensation, each of extended
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of one or more years’ inability to
arrangement, with an indication of continued need for
such an arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1, ¶ 12.04(C).
is on the claimant to present medical findings that show his or
her impairments match a listing or are equal in severity to a
Stephens v. Colvin, 200 F. Supp. 3d 349,
358 (N.D.N.Y. 2016).
Plaintiff contends that the record shows repeated episodes
of decompensation of extended duration.
The term “repeated
episodes of decompensation” is defined as three episodes within
one year, or an average of once every four months, each episode
lasting for at least two weeks.
P, App. 1, ¶ 12.00(C)(4).
See 20 C.F.R. Pt. 404, Subpt.
The Listing also provides that if the
claimant has “experienced more frequent episodes of shorter
duration or less frequent episodes of longer duration, [the
Commissioner] must use judgment to determine if the duration and
functional effects of the episodes are of equal severity and may
be used to substitute for the listed finding in a determination
Here, the ALJ considered plaintiff’s episodes of
decompensation as follows:
[T]he claimant has experienced one to two episodes of
decompensation . . . .
The claimant’s history of
multiple psychiatric hospitalizations shows that she has
experienced episodes of decompensation; however, the
episodes have been controlled and do not appear to have
been of extended duration of two weeks or longer . . .
. [T]he medical evidence fails to establish the presence
of the ‘paragraph C’ criteria.
Plaintiff has not identified any episodes of
decompensation lasting at least two weeks.
In the absence of
episodes of extended duration, the ALJ properly assessed the
evidence of record and used her judgment when determining that
plaintiff has not met the paragraph C criteria of Listing 12.04.
III. RFC Determination
Lastly, plaintiff argues that the ALJ’s RFC determination
that plaintiff can perform light work6 is not supported by
work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to
Plaintiff bears the burden of proving her RFC.
C.F.R. §§ 404.1512(c); 416.912(c); Staggers v. Colvin, No. 3:14CV-717 (JCH), 2015 WL 4751123, at *4 (D. Conn. Aug. 11, 2015)
(“[T]he claimant bears the
burden of proving her RFC”); Hogan
v. Astrue, 491 F. Supp. 2d 347, 356 (W.D.N.Y. 2007) (“[T]he only
burden shift that occurs at step 5 is that we are required to
prove that there is other work that you can do, given your RFC,
age, education, and work experience.
That shift does not place
on us the burden of proving RFC.”)
When reaching her RFC determination, the ALJ discussed the
evidence of record, including plaintiff’s own statements and the
medical opinion evidence, over nine single-spaced pages.
explained her ultimate conclusion as follows:
In summary, the objective medical evidence of record
shows that the claimant experiences limitations caused
by sarcoidosis, obesity, osteoarthritis, generalized
anxiety disorder, and major depressive disorder.
evidence shows that the claimant’s mental health issues
could be related to medication for her other health
problems, as well as abuses of medications. In any case,
the claimant has been inconsistent with her treatment
regimen, and the ongoing progress notes show that her
symptoms are generally in the range of moderate to mild
in severity. The notes of Sandeep Varma show that he
prescribed range of motion exercises for the claimant’s
Sarcoidosis (or sarcoid) can be a debilitating
condition, but the evidence does not establish that this
condition has affected the claimant to the extent that
it would prevent her from working. The effects of the
claimant’s obesity is considered in combination with her
other impairments, but the evidence does not clearly
sit for long periods of time.”
20 C.F.R. §§ 404.1567(b),
show the impact of it on her other impairments. Overall,
the medical evidence of record supports the finding that
the claimant is capable of performing light, unskilled,
simple, routine, repetitive work with only occasional
interaction with the general public at the substantial
gainful activity level.
“[T]he court must decide whether the [RFC] determination is
supported by substantial evidence . . . .
is evidence that a reasonable mind would accept as adequate to
support a conclusion; it is more than a ‘mere scintilla.’ . . .
The substantial evidence rule also applies to inferences and
conclusions that are drawn from findings of fact . . . .
court may not decide facts, reweigh evidence or substitute its
judgment for that of the Commissioner.”
Gonzalez v. Apfel, 23
F. Supp. 2d 179, 189 (D. Conn. 1998) (citations omitted).
court will not second-guess the ALJ’s decision where, as here,
she identified the reasons for her RFC determination and
supported her decision with substantial evidence.
Colvin, No. 5:12-CV-1164 (FJS), 2014 WL 1312362, at *4 (N.D.N.Y.
Mar. 31, 2014) (“So long as the ALJ properly exercises his
discretion, the court must limit its review to whether
substantial evidence supports the ALJ’s decision; the court may
not second-guess the ALJ’s balancing of the evidence.”); Marquez
v. Colvin, No. 12 CIV. 6819 (PKC), 2013 WL 5568718, at *14
(S.D.N.Y. Oct. 9, 2013) (where “the ALJ conforms with applicable
law and SSA regulations, and the ALJ’s decision is supported by
substantial evidence, this court will not second-guess his
Here, the ALJ provided a detailed explanation of her RFC
determination and supported her decision with substantial
There is no error.
For these reasons, plaintiff’s motion to reverse the
decision of the Commissioner (doc. #19) is DENIED and
defendant’s motion to affirm the decision of the Commissioner
(doc. #20) is GRANTED.
The case is remanded for further
proceedings in accordance with this opinion.
This is not a recommended ruling.
The consent of the
parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.
Appeals can be made directly to the
appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 23rd day of March,
Donna F. Martinez
United States Magistrate Judge
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