Kennedy v. Colvin
Filing
13
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings and granting 10 Commissioner's Motion for Judgment on the Pleadings. Signed by Hon. Michael J. Roemer on 8/17/2018. (RAZ)-CLERK TO FOLLOW UP- Amend caption. Close case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MARK WAYNE KENNEDY,
16-CV-725-MJR
DECISION AND ORDER
Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY, 1
Defendant.
___________________________________
Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States
Magistrate Judge conduct all proceedings in this case. (Dkt. No. 12).
Plaintiff Mark Wayne Kennedy brings this action pursuant to 42 U.S.C. §405(g)
seeking judicial review of the final decision of the Commissioner of Social Security
denying him Social Security Disability Insurance Benefits (“DIB”) under the Social
Security Act (the “Act”). Both parties have moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.
For the following reasons,
Kennedy’s motion (Dkt. No. 9) is denied and the Commissioner’s motion (Dkt. No. 10) is
granted.
BACKGROUND
On March 14, 2013, Kennedy filed an application for DIB alleging disability since
September 7, 2011, due to hip and back problems resulting from falling down the stairs.
(See Tr. 58-59, 96, 165-66, 186). 2 Kennedy later amended his alleged onset date to May
17, 2012. (Tr. 44). Born in 1962, Kennedy was fifty years old at the time of his application.
1
2
The Clerk of Court is directed to amend the caption accordingly.
References to “Tr.” are to the administrative record in this case.
(Tr. 47). Before filing his application, Kennedy worked as a tow motor operator for a
recycling company. (Tr. 51-53). Kennedy’s DIB application was denied on July 29, 2013
(Tr. 89-102), after which he requested a hearing before an Administrative Law Judge (Tr.
106-07). On December 17, 2014, Kennedy, represented by counsel, appeared before
Administrative Law Judge Connor O’Brien (the “ALJ”) for a hearing. (Tr. 41-88). On May
28, 2015, the ALJ issued her decision denying Kennedy’s DIB claim.
(Tr. 25-40).
Kennedy requested review by the Appeals Council (Tr. 22-23), but on July 13, 2016, the
Appeals Council denied Kennedy’s request, making the ALJ’s decision the final decision
of the Commissioner (Tr. 1-4). This action followed.
DISCUSSION
I.
Scope of Judicial Review
The Court’s review of the Commissioner’s decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner’s decision
rests on adequate findings supported by evidence having rational probative force,” the
Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
-2-
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574
(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).
Two related rules follow from the Act’s standard of review. The first is that “[i]t is
the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[g]enuine
conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d
at 588. While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner’s decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. Id.
II.
Standards for Determining “Disability” Under the Act
A “disability” is an “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). The Commissioner may find the
claimant disabled “only if his physical or mental impairment or impairments are of such
severity that he 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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
-3-
whether he would be hired if he applied for work.” Id. §423(d)(2)(A). The Commissioner
must make these determinations based on “objective medical facts, diagnoses or medical
opinions based on these facts, subjective evidence of pain or disability, and . . . [the
claimant’s] educational background, age, and work experience.” Dumas v. Schweiker,
712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris,
645 F.2d 122, 124 (2d Cir. 1981)).
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).
First, the Commissioner determines whether the claimant is “working” and whether that
work “is substantial gainful activity.” Id. §404.1520(b). If the claimant is engaged in
substantial gainful activity, the claimant is “not disabled regardless of [his or her] medical
condition or . . . age, education, and work experience.” Id. Second, if the claimant is not
engaged in substantial gainful activity, the Commissioner asks whether the claimant has
a “severe impairment.” Id. §404.1520(c). To make this determination, the Commissioner
asks whether the claimant has “any impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability to do basic work activities.”
Id. As with the first step, if the claimant does not have a severe impairment, he or she is
not disabled regardless of any other factors or considerations. Id. Third, if the claimant
does have a severe impairment, the Commissioner asks two additional questions: first,
whether that severe impairment meets the Act’s duration requirement, and second,
whether the severe impairment is either listed in Appendix 1 of the Commissioner’s
regulations or is “equal to” an impairment listed in Appendix 1. Id. §404.1520(d). If the
-4-
claimant satisfies both requirements of step three, the Commissioner will find that he or
she is disabled without regard to his or her age, education, and work experience. Id.
If the claimant does not have the severe impairment required by step three, the
Commissioner’s analysis proceeds to steps four and five.
Before doing so, the
Commissioner must “assess and make a finding about [the claimant’s] residual functional
capacity [“RFC”] based on all the relevant medical and other evidence” in the record. Id.
§404.1520(e). RFC “is the most [the claimant] can still do despite [his or her] limitations.”
Id. §404.1545(a)(1). The Commissioner’s assessment of the claimant’s RFC is then
applied at steps four and five. At step four, the Commissioner “compare[s] [the] residual
functional capacity assessment . . . with the physical and mental demands of [the
claimant’s] past relevant work.” Id. §404.1520(f). If, based on that comparison, the
claimant is able to perform his or her past relevant work, the Commissioner will find that
the claimant is not disabled within the meaning of the Act. Id. Finally, if the claimant
cannot perform his or her past relevant work or does not have any past relevant work,
then at the fifth step the Commissioner considers whether, based on the claimant’s RFC,
age, education, and work experience, the claimant “can make an adjustment to other
work.” Id. §404.1520(g)(1). If the claimant can adjust to other work, he or she is not
disabled. Id. If, however, the claimant cannot adjust to other work, he or she is disabled
within the meaning of the Act. Id.
The burden through steps one through four described above rests on the claimant.
If the claimant carries his burden through the first four steps, “the burden then shifts to
the [Commissioner] to show there is other gainful work in the national economy which the
claimant could perform.” Carroll, 705 F.2d at 642.
-5-
III.
The ALJ’s Decision
The ALJ first found that Kennedy is insured for DIB through June 30, 2016. (Tr.
30). The ALJ then followed the required five-step analysis for evaluating Kennedy’s DIB
claim. Under step one, the ALJ found that Kennedy has not engaged in substantial gainful
activity since May 17, 2012, his amended alleged onset date. (Id.). At step two, the ALJ
concluded that Kennedy has the following severe impairments: “degenerative changes
of the lumbar spine and the left hip.” (Id.). At step three, the ALJ found that Kennedy
does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments. (Id.). Before proceeding to step four,
the ALJ assessed Kennedy’s RFC as follows:
The claimant has the residual functional capacity to perform
light work as defined in [20 C.F.R. §404.1567(b)] 3 except he:
can frequently crouch and occasionally stoop, balance on
slippery on [sic] moving surfaces, climb, kneel, and crawl;
requires a sit/stand option that allows him to change position
every 60 minutes for up to five minutes without leaving the
work station; and can tolerate occasional exposure to extreme
cold, wetness, humidity, vibrations, and hazards, such as
open water or unprotected heights.
(Tr. 31). Proceeding to step four, the ALJ found that Kennedy is unable to perform any
of his past relevant work as a maintenance machine repairer, construction worker,
industrial-truck operator, machine driller, or hand packager. (Tr. 35-36). At the fifth step,
the ALJ considered Kennedy’s age, education, work experience, RFC, and the testimony
of a vocational expert to conclude that Kennedy can perform jobs that exist in significant
3
“Light 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, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R.
§404.1567(b).
-6-
numbers in the national economy, such as battery tester, gate guard, and ticket taker.
(Tr. 36-37). Accordingly, the ALJ found that Kennedy can successfully adjust to other
work and, therefore, that he has not been under a disability within the meaning of the Act
from his amended alleged onset date of May 17, 2012 through the date of her decision.
(Tr. 36-37).
IV.
Kennedy’s Challenge
Kennedy argues that the ALJ erred in not fully crediting his statements concerning
the intensity, persistence, and limiting effects of his pain. (See Dkt. No. 9-1 (Kennedy’s
Memo. of Law)).
It is well settled that it is the role of the ALJ, not the Court, to appraise the credibility
of witnesses, including the claimant. See Carroll, 705 F.2d at 642. “The ALJ is required
to evaluate the credibility of testimony or statements about the claimant’s impairments
when there is conflicting evidence about the extent of pain, limitations of function, or other
symptoms alleged.” Fisk v. Colvin, No. 14-CV-931S, 2017 WL 1159730, at *5 (W.D.N.Y.
Mar. 29, 2017). The Commissioner has set forth a two-step process to evaluate a
claimant’s testimony regarding his symptoms. First, the ALJ must consider whether the
claimant has a medically determinable impairment which could reasonably be expected
to produce the pain or other symptoms alleged by the claimant. Second, if the ALJ finds
that the claimant is so impaired, she must then evaluate the intensity, persistence, and
limiting effects of the claimant’s symptoms. If the claimant’s statements about his pain or
other symptoms are not substantiated by objective medical evidence, the ALJ must make
a finding as to the claimant’s credibility by assessing the following factors: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the pain
-7-
or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medications taken to alleviate the pain or other
symptoms; (5) any treatment, other than medication, that the claimant has received; (6)
any other measures that the claimant employs to relieve the pain or other symptoms; and
(7) other factors concerning the claimant’s functional limitations and restrictions as a
result of the pain or other symptoms. See 20 C.F.R. §404.1529; Social Security Ruling
(“SSR”) 96-7P, 1996 WL 374186 (July 2, 1996); SSR 16-3P, 2017 WL 5180304 (Oct. 25,
2017).
Here, at the first step of the credibility analysis, the ALJ found that Kennedy’s
medically determinable impairments could reasonably be expected to cause some of his
alleged symptoms, but at the second step, the ALJ found Kennedy’s statements
concerning the intensity, persistence, and limiting effects of his symptoms to be “not
entirely credible” because “the objective medical findings and the overall evidence simply
do not substantiate the extensive degree of reduced functioning alleged by [Kennedy].”
(Tr. 31-35). Contrary to Kennedy’s argument, the ALJ’s decision to discount his credibility
complied with the applicable regulation and is supported by substantial evidence.
First, the ALJ’s conclusion that the objective medical evidence does not fully
support Kennedy’s statements about his pain is supported by substantial evidence,
including the “modest” imaging results (x-rays, a CT scan of the lumbar spine, and an
MRI of the lumbar spine) in the record. (Tr. 35). Kennedy’s argument that these imaging
results show more than “modest” problems overlooks that one of his doctors, Dr. Webster
Pilcher, used that exact word in describing the results of the MRI and opined that neither
the MRI nor CT scan warranted surgical intervention. (Tr. 33-34 referring to Tr. 303-04).
-8-
Similarly, another doctor, Dr. John Orsini, noted that Kennedy’s reported pain “seems well
out of proportion to any objective findings with regard [to the] spinal MRI.” (Tr. 34 referring
to Tr. 321).
Second, having found Kennedy’s statements about his pain to be in conflict with
the objective medical evidence, the ALJ appropriately assessed the credibility of
Kennedy’s statements using the factors set forth in 20 C.F.R. §404.1529(c)(3). The ALJ
addressed, for instance, the location, duration, frequency, and intensity of Kennedy’s pain
and what precipitates and aggravates his pain. 20 C.F.R. §404.1529(c)(3)(ii), (iii). The
ALJ noted, in particular, that Kennedy has experienced left hip and lower back pain since
September 2011, when he fell down the stairs. (Tr. 32). The pain, which Kennedy
described as stabbing, numbing pain in his lower back and left hip, traveling down his left
leg, is aggravated by any movement, including climbing stairs, and becomes worse with
humidity and rain.
(Tr. 31-32).
The ALJ accounted for Kennedy’s pain and these
precipitating and aggravating factors by limiting him to a range of light work with certain
postural and environmental restrictions. (Tr. 31).
The ALJ also appropriately addressed Kennedy’s medications and other measures
he uses to relieve his pain. 20 C.F.R. §404.1529(c)(3)(iv), (vi). The ALJ noted, for
example, that when Kennedy visited his treating provider in March 2013, he was
prescribed muscle relaxers and pain medication.
(Tr. 32).
However, at his next
appointment in May 2013, Dr. Debra Alspector recommended against prescribing
controlled medications based upon her belief that Kennedy exaggerated his pain. (Id.).
Dr. Alspector instead prescribed Gabapentin, but Gabapentin ended up making Kennedy
nauseous, so it was discontinued and replaced with lidocaine ointment and Tramadol.
-9-
(Id.). Dr. Alspector ended up prescribing Lyrica and Hydrocodone to Kennedy in October
2013, but Kennedy reported taking medications “only when he absolutely needs them.”
(Tr. 33 referring to Tr. 244). He likewise testified that he quit taking pain medication
because it made him feel like he “was having a heart attack.” (Tr. 72). The ALJ also
noted that Kennedy utilized measures other than medication to help relieve his pain, such
as applying heat to his back. (Tr. 32, 35). The Court agrees with the ALJ that Kennedy’s
“fairly conservative[ ]” treatment of his pain, as described above, cuts against his
statements of totally disabling pain. (Tr. 35).
The ALJ also addressed in detail the treatment Kennedy received for his back and
hip pain. See 20 C.F.R. §404.1529(c)(3)(v). The ALJ noted that although Kennedy
reported injuring his back and hip in September 2011, he did not begin receiving regular
treatment for those injuries until March 2013 (Tr. 32), and two specialists who examined
him a year later, Dr. Pilcher and Dr. Orsini, did not recommend surgery (Tr. 35).
Additionally, the ALJ correctly noted that physicians who treated or examined Kennedy
found that he embellished his pain. (Tr. 32, 34-35). 4 As the ALJ concluded, although
Kennedy suffers from impairments that interfere with his ability to perform more than a
range of light work, the treatment records and other evidence in the record simply do not
support his complaints of total disability. (Tr. 31-32). Consequently, for these reasons,
the ALJ’s decision to discount Kennedy’s statements concerning the intensity,
4
Although the ALJ did not specifically discuss all of Kennedy’s daily activities in her decision, she
was certainly aware of them given her citation to Kennedy’s function report. (Tr. 31). Moreover, an ALJ is
not required to explicitly discuss each and every credibility factor in her decision. See Pellam v. Astrue,
508 F. App’x 87, 90 (2d Cir. 2013) (summary order); see also Brault v. Soc. Sec. Admin., 683 F.3d 443,
448 (2d Cir. 2012) (stating that ALJ is not required to discuss every piece of evidence in the record).
- 10 -
persistence, and limiting effects of his pain is supported by substantial evidence, and
Kennedy’s lone objection to the ALJ’s decision is thus without merit.
CONCLUSION
For the foregoing reasons, Kennedy’s motion for judgment on the pleadings (Dkt.
No. 9) is denied and the Commissioner’s motion for judgment on the pleadings (Dkt. No.
10) is granted.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated:
August 17, 2018
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge
- 11 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?