Kennedy v. Colvin
Filing
19
MEMORANDUM OPINION re 1 Social Security Appeal filed by John Kennedy. Signed by Magistrate Judge Martin C. Carlson on December 27, 2017. (kjn)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN KENNEDY,
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Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 3:17-CV-327
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
Introduction
Plaintiff’s counsel in this Social Security appeal approaches the litigation of
these cases with a profound passion, and a commendable commitment to his
clients. That passion and commitment is evident in the brief submitted in support
of this appeal which argues the plaintiff’s claims in this case with great force.
As a reviewing court, however, we must approach this appeal from a very
different, more dispassionate and significantly more deferential perspective. Our
task is limited to resolution of the question of whether the findings of the
Administrative Law Judge (ALJ) are supported by substantial evidence in the
record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3); Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536
1
(M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552,
565 (1988). Substantial evidence is less than a preponderance of the evidence but
more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971).
With our task defined in this fashion, we conclude under the deferential
standard of review defined by the courts, that substantial evidence supported the
decision of the ALJ in this case. Therefore, for the reasons set forth below, that
decision will be affirmed.
II.
Statement of Facts and of the Case
On February 20, 2014, John Kennedy applied for disability benefits under
Title II and Title XVI of the Social Security Act. (Tr. 15.) Kennedy’s application
embraced a closed 13-month period of claimed disability, beginning on July 21,
2013, and concluding on August 21, 2014, when Kennedy returned to the
workforce. In his application for benefits Kennedy alleged that he was disabled due
to the combined effects of coronary disease and chronic obstructive pulmonary
disease (COPD).(Id.)
Kennedy was 49 years old at the time of the alleged of his disability. (Tr. 32,
116.) He had a high school education, (Tr. 36), and past work experience as a
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heavy equipment mechanic and delivery truck driver. (Tr. 43, 169.) Kennedy
stopped working on July 20, 2013, when he was laid off by his employer because
he could not do the exertional level of work required at his job as a mechanic. (Tr.
34.) Following this lay-off in July of 2013, Kennedy continued to collect
unemployment benefits until those benefits expired. (Tr. 35-6.) Kennedy also
testified that he actively sought employment in the trucking industry during this
time but “there was nothing available at the rate I was being paid at the job I was
laid off from.” (Tr. 36.) Kennedy’s job search ended when he resumed work in
August of 2014, as a CDL truck driver. (Id.)
In addition to collecting unemployment benefits and pursuing employment
opportunities, Kennedy’s self-reported activities of daily living suggested some
capacity for physical labor. Despite the chronic fatigue which Kennedy reported as
a result of his coronary and pulmonary disease, Kennedy stated that he was able to
cook; clean; care for his lawn; walk “quite a bit” every day; and occasionally shop
for groceries and other items. (Tr. 38-39.) In an April 2014 adult function report,
Kennedy reported that, despite the need to take breaks which reduced his
efficiency, on a daily basis he worked around the house; cut the grass; cooked
meals three to four times a week; washed laundry; performed home repairs; fed,
watered, and walked his pets; cared for his children and wife; went outside daily;
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walked, drove, or rode in a car; and shopped in stores for food, clothes, auto and
truck parts, and household items. (Tr. 156.) In a supplemental pain questionnaire
which Kennedy completed at this time, he also indicated that he has no disabling
pain. (Tr. 163.)
Moreover, Kennedy’s closed period disability claim was not supported by
any medical source opinion stating that these coronary or pulmonary conditions
were wholly disabling. Instead, the gist of this claim entailed medical records
documenting treatment Kennedy received throughout this period for coronary and
related medical concerns. With respect to Kennedy’s condition during this 13month closed period of claimed disability, the factual record was mixed.
That record documented three episodes of hospitalization for Kennedy
between October of 2013 and May of 2014. Initially, on October 23, 2013
Kennedy was seen at the emergency room of Wilkes Barre General Hospital with
complaints of a rapid heartbeat, fatigue and tiredness that limited his work to six
hours. (Tr. 394-95.) On examination, Kennedy was found to be in uncontrolled
atrial fibrillation, but converted to normal sinus rhythm with the appropriate
therapy. (Tr. 395). He responded well to treatment and was discharged in
satisfactory condition two days later, on October 25, 2013. (Tr. 395.)
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In November 2013, Kennedy’s atrial fibrillation recurred and he had a
pacemaker implanted to regulate his cardiac rhythms.(Tr. 396.) Medical records
indicate that at a follow-up appointment on January 7, 2014 with Nirode Das,
M.D., his treating cardiologist, Kennedy reported that he was feeling stable and
that his tiredness had improved. (Tr. 477.) Plaintiff denied chest pain and
palpations, and continued to smoke against medical advice (Tr. 477). On
examination, Kennedy’s chest was clear and he had normal heart sounds. (Id.) An
EKG also showed that Kennedy’s pacemaker was functioning normally (Tr. 477).
Dr. Das continued Plaintiff’s medication, recommended that he follow a low-fat,
low-cholesterol, low-salt diet, and advised him to stop smoking (Tr. 478). A
February 2014 follow-up EKG revealed a normal ejection fraction of 61 percent.
(Id.)1 One month later, in March of 2014, Kennedy was seen by his primary care
physician Dr. Kerrigan for a general physical examination. (Tr. 635.). At that time,
Dr. Kerrigan noted that Kennedy had recently undergone a stress test with good
results and Kennedy denied difficulty breathing, chest tightness, and shortness of
breath. (Tr. 635-36.)
An ejection fraction is a measure of cardiac efficiency and measures the
percentage of blood leaving the heart each time it contracts. An ejection fraction
inn excess of 55 is considered normal. https://www.mayoclinic.org/ejectionfraction/expert-answers/FAQ-20058286
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1
Despite this care, Kennedy was hospitalized for a third occasion on May 21,
2014, after reporting to the emergency room complaining of severe palpitations
and shortness of breath. (Tr. 500). He was treated with telemetry monitoring and
IV therapy, and was discharged in stable condition four days later on May 25,
2014. (Tr. 505.) During a follow up appointment on May 28, 2014, it was reported
that Kennedy had improved significantly, and that he denied any chest pain,
shortness of breath, or chest palpitations. (Tr. 571.) In a June 2014, appointment
Kennedy reported tiredness, but his breathing was unchanged with no evidence of
failure. (Tr. 626.) An EKG showed pacemaker induced heart rhythm of 60 beats
per minute. (Tr. 627).
During this closed period of claimed disability Kennedy was last seen by his
primary care physician Dr. Kerrigan in June 2014. This medical appointment
related to work that Kennedy was seeking since Kennedy saw the doctor for a
physical examination for his commercial driver’s license (CDL). (Tr. 637.) At that
time Kennedy denied chest pain, difficulty breathing, chest tightness, and shortness
of breath. (Tr. 637.) Kennedy’s physical examination was normal and revealed that
he was healthy, in no distress, had normal respiration, and no issues with his
extremities. (Tr. 637-38.) Neurological and psychiatric examinations were also
normal. (Id.)
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It was against the backdrop of this medical record that the ALJ conducted a
hearing concerning Kennedy’s disability application on June 5, 2015. (Tr. 28-46.)
At this hearing Mr. Kennedy and a vocational expert both appeared and testified.
(Id.) Following this hearing, on July 17, 2015, the ALJ issued a decision denying
this disability application. (Tr. 12-27.) In this decision, the ALJ first noted that
Kennedy’s claim related to a 13-month closed period of disability extending from
July of 2013 to August of 2014. (Tr. 17-18.) The ALJ then determined at Step 2 of
the sequential analysis governing social security claims that Kennedy suffered
from a series of severe impairments including coronary disease, COPD, atrial
fibrillation, bradycardia, tachycardia, and pacemaker installation. (Tr. 18.) At Steps
3 and 4 of this analytical process the ALJ concluded that none of these severe
impairments were per se disabling, but found that Kennedy could not return to his
past employment. (Tr. 18, 21.)
The ALJ then found that Kennedy retained the residual functional capacity
to perform a range of light work with certain postural restrictions. (Tr. 19.) In
reaching this conclusion, the ALJ recounted Kennedy’s treatment history during
the relevant period, (Tr. 20), noting that Kennedy performed heavy exertional work
despite his cardiac issues until he was laid off in July of 2013. The ALJ also
reviewed Kennedy’s medical history and three hospitalizations in 2013 and 2014,
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(Tr. 20-1), finding that the medical evidence confirmed that Kennedy experienced
a number of medical issues that required hospitalization but also revealed that the
care he received was effective in treatment of his symptoms. (Tr. 21.) Further, the
ALJ observed that Kennedy received unemployment compensation benefits during
this period, which typically require a certification that the recipient is ready and
willing to return to work; actively sought employment during this period of
claimed disability; and secured work as a CDL driver in August 2014. (Tr. 21.)
Having made these findings, the ALJ concluded at Step 5 of this sequential
analysis consistent with the vocational expert testimony, that there were substantial
jobs in the national economy which Kennedy could perform, and denied this claim.
(Tr. 22-23.).
This appeal then ensued, (Doc. 1), with plaintiff’s counsel arguing on appeal
that these ALJ findings were erroneous. (Doc. 14.) Yet while we appreciate
counsel’s zealous advocacy on this score, upon a consideration of the parties’
briefs, and for the reasons set forth below, under the deferential standard of review
which applies to Social Security appeals, we conclude that substantial evidence
supports the findings of the ALJ. Therefore, that decision will be affirmed.
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III.
Discussion
A.
Substantial Evidence Standard of Review
In this case, Kennedy’s appeal fails when the ALJ’s decision is viewed
under the highly deferential standard of review that applies to these cases.
Resolution of the instant social security appeal involves an informed consideration
of the respective roles of two adjudicators–the ALJ and this court. At the outset, it
is the responsibility of the ALJ in the first instance to determine whether a claimant
has met the statutory prerequisites for entitlement to benefits. To receive benefits
under the Social Security Act by reason of disability, a claimant must demonstrate
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 twelve months.” 42 U.S.C. §1382c(a)(3)(A); see also 20
C.F.R. §416.905(a). To satisfy this requirement, a claimant must have a severe
physical or mental impairment that makes it impossible to do his or her previous
work or any other substantial gainful activity that exists in the national economy.
42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §416.905(a).
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process. 20 C.F.R. §416.920(a). Under this process,
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the ALJ must sequentially determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment; (4)
whether the claimant is able to do his or her past relevant work; and (5) whether
the claimant is able to do any other work, considering his or her age, education,
work experience and residual functional capacity (“RFC”). 20 C.F.R.
§416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant’s RFC.
RFC is defined as “that which an individual is still able to do despite the
limitations caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.
§§416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of
the claimant’s medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.
§416.945(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents
him or her from engaging in any of his or her past relevant work. 42 U.S.C.
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§1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R.
§416.912; Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Once the claimant has met this burden, it shifts to the Commissioner at step
five to show that jobs exist in significant number in the national economy that the
claimant could perform that are consistent with the claimant’s age, education, work
experience and RFC. 20 C.F.R. §416.912(f); Mason, 994 F.2d at 1064.
Once the ALJ has made a disability determination, it is then the
responsibility of this court to independently review that finding. In undertaking this
task, this court applies a specific, well-settled and carefully articulated standard of
review. In an action under 42 U.S.C. § 405(g) to review the decision of the
Commissioner of Social Security denying a plaintiff’s claim for disability benefits,
Congress has specifically provided that the “findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be
conclusive[.]” 42 U.S.C. § 405(g). Thus, when reviewing the Commissioner’s final
decision denying a claimant’s application for benefits, this court’s review is limited
to the question of whether the findings of the final decision-maker are supported by
substantial evidence in the record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3);
Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v.
Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not
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mean a large or considerable amount of evidence, but rather such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a
preponderance of the evidence but more than a mere scintilla. Richardson v.
Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial
evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict
created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
But in an adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]
from being supported by substantial evidence.” Consolo v. Fed. Maritime
Comm’n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner’s
decision is supported by substantial evidence the court must scrutinize the record
as a whole.” Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). The
question before this court, therefore, is not whether a plaintiff is disabled, but
whether the Commissioner’s finding that she is not disabled is supported by
substantial evidence and was reached based upon a correct application of the
relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1
(M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote a
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lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.
Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of
a claim requires the correct application of the law to the facts.”); see also Wright v.
Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on
legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary
review of all legal issues . . . .”).
The ALJ’s disability determination must also meet certain basic legal
requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.
Thus, in order to facilitate review of the decision under the substantial evidence
standard, the ALJ's decision must be accompanied by "a clear and satisfactory
explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate
which evidence was accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in
his decision which evidence he has rejected and which he is relying on as the basis
for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir.
1999). Moreover, in conducting this review we are cautioned that “an ALJ's
findings based on the credibility of the applicant are to be accorded great weight
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and deference, particularly since an ALJ is charged with the duty of observing a
witness's demeanor and credibility.” Frazier v. Apfel, No. 99-715, 2000 WL
288246, *9 (E.D. Pa. March 7, 2000) (quoting Walters v. Commissioner of Social
Sec., 127 F.3d 525, 531 (6th Cir. 1997)); see also Casias v. Secretary of Health &
Human Servs., 933 F.2d 799, 801 (10th Cir. 1991) (“We defer to the ALJ as trier
of fact, the individual optimally positioned to observe and assess witness
credibility.”). Furthermore, in determining if the ALJ's decision is supported by
substantial evidence the court may not parse the record but rather must scrutinize
the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
B.
The Commissioner’s Decision in This Case Should be Affirmed
Judged against this deferential standard of review, we find that the
Commissioner’s decision in this matter should be affirmed. At bottom, Kennedy
argues that the ALJ’s residual functional capacity assessment in this case, which
led to the finding that Kennedy was not disabled during this closed period, was
fundamentally and profoundly erroneous.
While Kennedy’s counsel presses this issue with great vigor, we remain
mindful that our review of the ALJ's assessment of the plaintiff's residual
functional capacity is both limited and deferential. We are not free to substitute our
independent assessment of the evidence for the ALJ’s determinations. Instead, we
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must simply ascertain whether the RFC assessment is support by substantial
evidence, a quantum of proof which is less than a preponderance of the evidence
but more than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401 (1971),
and “does not mean a large or considerable amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Judged by this
deferential standard of review an RFC assessment will not be set aside if it is
supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d
Cir.2002). In making an RFC assessment, however, the ALJ is required to evaluate
all relevant evidence, Fargnoli v. Massanari, 247 F.3d 34, 40–41 (3d Cir.2001),
and explain her reasons for rejecting any such evidence, Burnett v. Commissioner
of Social Security Administration, 220 F.3d 112, 122 (3d Cir.2000).
Here we find that substantial evidence supported the ALJ’s residual function
capacity determination. Indeed, much of that evidence was derived from Kennedy
himself, who candidly acknowledged receiving unemployment benefits and
actively pursuing employment during this alleged closed period of disability. The
ALJ properly considered this information when finding that Kennedy was not
disabled. Indeed, “in assessing a claimant's credibility: ‘it was entirely proper for
the ALJ to consider that [the claimant's] receipt of unemployment benefits was
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inconsistent with a claim of disability during the same period. See, e.g., Johnson v.
Chater, 108 F.3d 178, 180 (8th Cir.1997) (application for unemployment
compensation benefits can adversely affect a claimant's credibility because of
admission of ability to work required for unemployment benefits).’ Myers v.
Barnhart, 57 F. App'x 990, 997 (3d Cir.2003).” Love v. Astrue, No. 1:12-CV-1923,
2014 WL 4915998, at *7 (M.D. Pa. Sept. 30, 2014). Likewise, evidence that a
disability claimant is able to maintain employment during a period of claimed
disability is relevant and undermines the credibility of any assertion that a claimant
is wholly disabled. See Forster v. Colvin, 208 F. Supp. 3d 636, 639 (M.D. Pa.
2015).
Kennedy also candidly reported activities of daily living which were
inconsistent with a claim of total disability. Despite the chronic fatigue which
Kennedy reported as a result of his coronary and pulmonary disease, Kennedy
stated that he was able to cook; clean; care for his lawn; walk “quite a bit” every
day; and occasionally shop for groceries and other items. (Tr. 38-39.) In an April
2014 adult function report, Kennedy reported that, despite the need to take breaks
which reduced his efficiency, on a daily basis he worked around the house; cut the
grass; cooked meals three to four times a week; washed laundry; performed home
repairs; fed, watered, and walked his pets; cared for his children and wife; went
16
outside daily; walked, drove, or rode in a car; and shopped in stores for food,
clothes, auto and truck parts, and household items. (Tr. 156.)
An ALJ's findings based on the credibility of a claimant are to be accorded
great weight and deference, since an ALJ is charged with the duty of observing a
witness' demeanor and credibility. Frazier v. Apfel, No. 99–CV–715, 2000 WL
288246, at *9 (E.D.Pa. Mar. 7, 2000) (quoting Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 531(6th Cir.1997)). In making a finding about the credibility of a
claimant's statements, the ALJ need not totally accept or totally reject the
individual's statements. SSR 96–7p. The ALJ may find all, some, or none of the
claimant's allegations to be credible, or may find a claimant's statements about the
extent of his or her functional limitations to be credible but not to the degree
alleged. Id. Social Security Regulations further identify seven factors which may
be relevant to the assessment of the severity or limiting effects of a claimant's
impairment based on a claimant's symptoms. 20 C.F.R. § § 404.1529(c)(3). These
factors include: activities of daily living; the location, duration, frequency, and
intensity of the claimant's symptoms; precipitating and aggravating factors; the
type, dosage, effectiveness, and side effects of any medication the claimant takes
or has taken to alleviate his or her symptoms; treatment, other than medication that
a claimant has received for relief; any measures the claimant has used to relieve his
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or her symptoms; and, any other factors concerning the claimant's functional
limitations and restrictions. Id. See George v. Colvin, No. 4:13–CV–2803, 2014
WL 5449706, at *4 (M.D.Pa. Oct. 24, 2014); Martinez v. Colvin, No. 3:14-CV1090, 2015 WL 5781202, at *8–9 (M.D. Pa. Sept. 30, 2015). Here, the ALJ’s
decision to partially discount Kennedy’s claims of disability based upon his selfreported physical activities adhered to this regulatory guidance and was supported
by substantial evidence in the form of Kennedy’s own statements and reports.
Therefore, that finding may not be disturbed on appeal.
Finally, the ALJ’s characterization of Kennedy’s treatment history, which
noted three hospitalizations, but indicated that Kennedy favorably responded to
treatment on each occasion, is also supported by substantial medical evidence, a
quantum of proof which is less than a preponderance of the evidence but more than
a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). While Kennedy
argues with great force that this medical evidence also can, and he believes should,
permit a very different inference, and a finding of disability, we are not free to
reach that result or re-weigh the evidence. Instead, we must we “grant . . .
deference to agency inferences from facts if those inferences are supported by
substantial evidence, ‘even [where] this court acting de novo might have reached a
different conclusion.’ Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d
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Cir.1986) (citations omitted).” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185,
1190–91 (3d Cir. 1986).
In sum, the ALJ’s assessment of the evidence in this case fully complied
with the dictates of the law and was supported by substantial evidence. This is all
that the law requires, and all that a claimant like Kennedy can demand in a
disability proceeding. Therefore, notwithstanding Kennedy’s forceful argument
that this evidence might have also supported a different finding, we are obliged to
affirm this ruling once we find that it is “supported by substantial evidence, ‘even
[where] this court acting de novo might have reached a different conclusion.’
Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir.1986) (citations
omitted).” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190–91 (3d Cir. 1986).
Accordingly, under the deferential standard of review which applies to
appeals of Social Security disability determinations we conclude that substantial
evidence supported the ALJ’s evaluation of this case. Therefore, we will affirm
this decision, direct that judgment be entered in favor of the defendant, and instruct
the clerk to close this case.
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An appropriate order follows.
So ordered this 27th day of December, 2017.
s/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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