Kenny v. Commissioner of Social Security
Filing
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RULING ON CROSS MOTIONS TO REMAND AND AFFIRM DECISION OF THE COMMISSIONER OF SOCIAL SECURITY. For the reasons stated in the accompanying ruling, plaintiff's motion to remand or reverse the decision of the Commissioner (Doc. # 18 ) is DENIED. The Commissioner's motion to affirm the decision of the Commissioner (Doc. # 25 ) is GRANTED. It is so ordered.Signed by Judge Jeffrey A. Meyer on 09/24/2018. (Rubin, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL PATRICK KENNY,
Plaintiff,
v.
No. 3:17-cv-01178 (JAM)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
RULING ON CROSS MOTIONS TO REMAND AND AFFIRM DECISION OF THE
COMMISSIONER OF SOCIAL SECURITY
Plaintiff Michael Patrick Kenny alleges that he is disabled and unable to work due to
several conditions. He filed this action pursuant to 42 U.S.C. § 405(g) seeking review of a final
decision of defendant Commissioner of Social Security, who denied plaintiff’s application for
social security disability insurance benefits. For the reasons set forth below, I will deny
plaintiff’s motion to remand the decision of the Commissioner, and I will grant the
Commissioner’s motion to affirm the decision of the Commissioner.
BACKGROUND
The Court refers to the transcripts provided by the Commissioner. See Doc. #13-1
through Doc. #13-10. Plaintiff filed an application for social security disability income on
August 19, 2014, alleging a disability beginning on July 1, 2012. Plaintiff’s claim was initially
denied on January 6, 2015, and denied again upon reconsideration on June 29, 2015. He then
filed a written request for a hearing on July 9, 2015.
Plaintiff appeared and testified at a hearing before Administrative Law Judge (ALJ) John
Aletta on August 17, 2016. Plaintiff was represented by counsel. On October 28, 2016, the ALJ
issued a decision concluding that plaintiff was not disabled within the meaning of the Social
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Security Act. See Doc. #13-3 at 28–43. The Appeals Council affirmed the decision of the ALJ on
May 30, 2017. Plaintiff then filed this federal action on July 14, 2017.
To qualify as disabled, a claimant must show that he is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not less
than 12 months,” and “the impairment must be ‘of such severity that [the claimant] is not only
unable to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy.’” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting
42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists
in significant numbers either in the region where [a claimant] live[s] or in several other regions
of the country,” and “when there is a significant number of jobs (in one or more occupations)
having requirements which [a claimant] [is] able to meet with his physical or mental abilities and
vocational qualifications.” 20 C.F.R. § 416.966(a)–(b); see also Kennedy v. Astrue, 343 F. App’x
719, 722 (2d Cir. 2009).
To evaluate a claimant’s disability, and to determine whether he qualifies for benefits, the
agency engages in the following five-step process:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. Where the claimant is not, the Commissioner next considers
whether the claimant has a “severe impairment” that significantly limits [his] physical or
mental ability to do basic work activities. If the claimant suffers such an impairment, the
third inquiry is whether, based solely on medical evidence, the claimant has an
impairment that is listed [in the so-called “Listings”] in 20 C.F.R. pt. 404, subpt. P, app.
1. If the claimant has a listed impairment, the Commissioner will consider the claimant
disabled without considering vocational factors such as age, education, and work
experience; the Commissioner presumes that a claimant who is afflicted with a listed
impairment is unable to perform substantial gainful activity. Assuming the claimant does
not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, [he] has the residual functional capacity to perform [his] past work. Finally,
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if the claimant is unable to perform [his] past work, the burden then shifts to the
Commissioner to determine whether there is other work which the claimant could
perform.
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122–23 (2d Cir. 2012) (alteration in original)
(citation omitted); see also 20 C.F.R. § 416.920(a)(4)(i)–(v). In applying this framework, an ALJ
may find a claimant to be disabled or not disabled at a particular step and may make a decision
without proceeding to the next step. See 20 C.F.R. § 416.920(a)(4). The claimant bears the
burden of proving the case at Steps One through Four; at Step Five, the burden shifts to the
Commissioner to demonstrate that there is other work that the claimant can perform. See
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
The ALJ concluded that plaintiff was not disabled within the meaning of the Social
Security Act. At Step One, the ALJ determined that plaintiff last met the insured status
requirement of the Social Security Act on December 31, 2015. Doc. #13-3 at 30. Plaintiff had not
engaged in substantial gainful activity since July 1, 2012, the date of the alleged onset of his
disability, through his date last insured. At Step Two, the ALJ found that plaintiff suffered from
the following severe impairments: “affective disorders, degenerative disc disease of the lumbar
spine, peripheral neuropathy and asthma.” Ibid.
At Step Three, the ALJ determined that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 32.
At Step Four, the ALJ found that, through the date last insured, plaintiff “had the residual
functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the
claimant can tolerate no concentrated exposure to humidity, wetness or extreme cold. Further,
the claimant is restricted to performing simple, routine tasks, with no contact with the public and
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occasional contact with co-workers and changes in his work setting should be limited to simple
work-related decisions.” Id. at 34. The ALJ also concluded at Step Four that plaintiff was unable
to perform any of his past relevant work. Id. at 41.
At Step Five, after considering plaintiff’s age, education, work experience, and residual
functional capacity (RFC), the ALJ concluded that, through the date last insured, there were jobs
that plaintiff could perform that existed in significant numbers in the national economy. Id. at 42.
In reaching this conclusion, the ALJ relied on the testimony of a vocational expert. The ALJ
ultimately held that plaintiff was not disabled within the meaning of the Social Security Act. Id.
at 43.
On May 30, 2017, the Appeals Council affirmed the decision of the ALJ. Id. at 2.
Plaintiff then timely filed this action on July 14, 2017.
DISCUSSION
Plaintiff alleges that the ALJ erred at Step Three by finding that none of plaintiff’s
impairments met or equaled impairments in the listings. The ALJ considered Listing 1.04
(disorder of the spine), 11.14 (peripheral neuropathy), 3.03 (asthma), and 12.04, 12.06, 12.09
(mental impairments). For each of these listings, the ALJ properly “set forth a sufficient rationale
in support of his decision to find or not find a listed impairment.” Berry v. Schweiker, 675 F.2d
464, 469 (2d Cir. 1982) (per curiam).
Plaintiff first argues that the ALJ erred in concluding that plaintiff’s spine impairment did
not meet or equal Listing 1.04 for disorder of the spine. Listing 1.04 requires a disorder of the
spine resulting in compromise of a nerve root or the spinal cord. 20 C.F.R. pt. 404, Subpt. P,
App. 1, Section 1.04 (2006). Such a disorder can be demonstrated by (a) evidence of nerve root
compression accompanied by sensory or reflex loss; (b) spinal arachnoiditis manifested by
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severe burning or painful dysesthesia, resulting in the need for changes in position or posture
more than once every 2 hours; or (c) lumbar spinal stenosis resulting in pseudoclaudication
manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate
effectively. Ibid. Plaintiff does not explain or appear to argue that he has a spinal disorder that
has resulted in the compromise of a nerve root or the spinal cord. Plaintiff recounts his back pain
and related treatment, but does nothing to show that his spine impairment meets any of the
requirements of Listing 1.04.
Moreover, the Commissioner has pointed to substantial evidence in the record supporting
the ALJ’s conclusion that plaintiff’s spinal disorder did not meet the requirements of listing 1.04.
See Doc. #13-10 at 27 (record from treating physician Dr. Zhang noting “no evidence of
significant lumbar disc herniation, spinal stenosis, or evidence of nerve root compression at any
level”). I conclude that the ALJ’s finding that plaintiff’s spinal disorder did not meet or equal the
listing of 1.04 was supported by substantial evidence.
Plaintiff next argues that the ALJ erred by concluding that plaintiff’s impairment did not
meet Listing 11.14 for peripheral neuropathy. Listing 11.14 defines peripheral neuropathy as:
A. Disorganization of motor function in two extremities, resulting in an extreme
limitation in the ability to stand up from a seated position, balance while standing
or walking, or use the upper extremities; or
B. Marked limitation in physical functioning, and in one of the following:
1. Understanding, remembering, or applying information; or
2. Interacting with others; or
3. Concentrating, persisting, or maintaining pace; or
4. Adapting or managing oneself.
20 C.F.R. § 404, Subpt. P, App. 1, § 11.14. “Extreme limitation” refers to “the inability to stand
up from a seated position, maintain balance in a standing position and while walking, or use your
upper extremities to independently initiate, sustain, and complete work-related activities.” Id. §
11.00(D)(2). In contrast, “marked limitation means that, due to the signs and symptoms of
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your neurological disorder, you are seriously limited in the ability to independently initiate,
sustain, and complete work-related physical activities.” Id. § 11.00(G)(2)(a). And “[t]he
persistent and intermittent symptoms must result in a serious limitation in your ability to do a
task or activity on a sustained basis.” Id.; see also Solis v. Berryhill, 692 F. App’x 46, 48 (2d Cir.
2017) (discussing Listing 11.14).
Plaintiff does not explain how his peripheral neuropathy meets or equals any of the
requirements of Listing 11.14. As to § 11.14A, the record supports the ALJ’s conclusion that
plaintiff did not have a disorganization of motor function in two extremities that resulted in an
extreme limitation on his abilities as defined by the regulation. Plaintiff cites records reflecting
medical issues with his knees, but none of these records suggest that plaintiff had any “extreme
limitations” as required by § 11.14A. In fact, the records that plaintiff cites reflect that he had
moderate or mild pain with motion as to certain limbs and joints. See Doc. #13-10 at 87, 95. As
to § 11.14B, the record also supports the ALJ’s conclusion. The aforementioned records support
a finding that plaintiff had a moderate limitation, not a “marked limitation” as that limitation is
defined by the regulation.
Plaintiff further argues that the ALJ erred in finding that plaintiff’s mental health
conditions did not meet or equal Listing 12.04 (depressive, bipolar and related disorders) or
Listing 12.06 (anxiety and obsessive-compulsive disorders). Plaintiff concedes that his
conditions did not meet either of these the listings, but argues that they equaled the listings
because of their severity. To qualify as a listed impairment under Listing 12.04 or 12.06, the
claimant’s impairment must satisfy the criteria in both paragraphs A and B, or the criteria in
paragraphs A and C, of those listings.
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The ALJ considered the severity of plaintiff’s mental impairments “singly and in
combination” and concluded that they did not equal the criteria of 12.04, 12.06, or 12.09. Doc.
#13-3 at 32. In making his finding, the ALJ first considered whether the “paragraph B” criteria of
Listings 12.04 and 12.06 were satisfied. Listings 12.04 and 12.06 have the same paragraph B
criteria: “To satisfy the ‘paragraph B’ criteria, the mental impairments must result in at least two
of the following: marked restriction of activities of 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.” Doc. #13-3 at 32–33.
Plaintiff appears to argue that he has great difficulties regarding daily living and
concentration, persistence, or pace. The ALJ found that plaintiff had mild restriction in daily
living, moderate difficulties in social functioning, moderate difficulties in concentration,
persistence or pace, and no episodes of decompensation. Id. at 33.
As to daily living, the ALJ relied primarily on plaintiff’s hearing testimony. Plaintiff
testified that he lived alone. Doc. #13-3 at 76. Plaintiff described difficulty with daily living but
attributed that principally to other physical ailments, such as pain in his knees, legs, and back. Id.
at 92. The ALJ also cited a mental health report that plaintiff had “mild deficiencies” with daily
living activities as the result of his mental health impairments. Doc. #13-8 at 70. Plaintiff has not
pointed to anything in the record suggesting that he had more than mild restrictions of activities
of daily living.
As to concentration, persistence or pace, plaintiff relies on the record of his licensed
marriage and family therapist, Nadine Behmke, but that record notes that plaintiff was only
moderately limited as to “memory and understanding” (moderate in 3 of 3 categories), and as to
“sustained concentration and persistence” (moderate in 5 out of 8 categories and markedly
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limited in 3 out of 8 categories). Doc. #13-10 at 151. Plaintiff does not point to any other
evidence supporting his claim.
The ALJ also considered whether the “paragraph C” criteria for Listings 12.04 and 12.06
were satisfied. The paragraph C criteria requires extreme functional limitations specific to the
particular listing at issue. The ALJ determined that the evidence failed to establish the presence
of the “paragraph C” criteria in this case. Doc. #13-3 at 33. Plaintiff does not argue that he met
any of the paragraph C criteria. Accordingly, I conclude that the ALJ’s determination that
plaintiff’s impairment did not meet or equal any of the Listings is supported by substantial
evidence.
Lastly, plaintiff’s memorandum briefly lists a series of challenges to the ALJ’s RFC
finding, but does nothing to expand upon most of these arguments. These arguments include that
improper weight was given to a state agency medical consultant, improper weight was given to
treating physicians, and that plaintiff’s asthma was not “fully appreciated.” Doc. #18 at 20-21.
Because plaintiff does not explain or elaborate upon many of these arguments, I consider them
forfeited, and I will not address them.
Plaintiff argues that he could not perform the three jobs identified by the ALJ in his
ruling because those jobs require various types of movement that plaintiff cannot engage in. I
construe this argument as a challenge to ALJ’s RFC finding for failing to include certain
restrictions. In particular, plaintiff alleges that the RFC is flawed because it failed to include
limitations on fingering and handling objects, contrary to his restriction on “fixed positioning” as
demonstrated in the medical source statement of PA Mathew and Peck and limited ability to
finger and handle objects.
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The ALJ extensively considered the medical source statement of PA Mathew. Doc. #13-3
at 40. At the time of the ALJ’s decision PA Matthew was not considered an acceptable medical
source and was not entitled to controlling weight. Ibid. The ALJ also noted that PA Mathew only
started treating plaintiff after the date last insured, and his views of the severity of plaintiff’s
limitations were inconsistent with the totality of the record. Ibid. Moreover, the ALJ cited
numerous medical records to support his conclusion regarding the lack of further restrictions in
the RFC. Id. at 36-38. Accordingly, I conclude that the ALJ’s RFC finding is supported by
substantial evidence.
CONCLUSION
For the reason stated above, plaintiff’s motion to remand or reverse the decision of the
Commissioner (Doc. #18) is DENIED. The Commissioner’s motion to affirm the decision of the
Commissioner (Doc. #25) is GRANTED.
It is so ordered.
Dated at New Haven this 24th day of September 2018.
/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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