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Kenneally v. Commissioner of Social Security

December 18, 2008


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


Plaintiff Richard Kenneally ("Kenneally") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for benefits under the Social Security Act. Kenneally moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Docket Nos. 11, 14. For the reasons which follow, it is recommended that the Commissioner's decision be affirmed.

I. Procedural History

On January 26, 1999, Kenneally filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. T. 74-83.*fn1 That application was denied on May 7, 1999. T. 20-22. Kenneally requested a hearing before an administrative law judge ("ALJ"), which was held before ALJ J. Lawson Brown on January 19, 2000. T. 34-37, 603-32. In a decision dated April 26, 2000, the ALJ held that Kenneally was not entitled to disability benefits. T. 42-50. On June 13, 2000, Kenneally filed a request for review with the Appeals Council. T. 51-54. The Appeals Council granted Kenneally's request for review on October 30, 2001, and remanded the action back to the ALJ for reconsideration. T. 230-33. A supplemental hearing was held before ALJ Brown on January 31, 2002. T. 511-32. In a decision dated February 4, 2002, the ALJ again held that Kenneally was not entitled to disability benefits. T. 258-66.

After another timely request was submitted to the Appeals Council on March 2, 2002, the Council again granted the request, this time remanding the case to ALJ Carl Stephan for resolution. T. 290-93. A supplemental hearing was held on July 4, 2004 and continued on November 9, 2004 before ALJ Stephan. T. 583-602, 533-582. In a decision dated January 4, 2005, the ALJ held that Kenneally was not entitled to disability benefits. T. 10-19. After a timely request was submitted to the Appeals Council, on May 11, 2007 the Council denied Kenneally's request, thus making the ALJ's findings the final decision of the Commissioner. T. 4-9. This action followed.

II. Contentions

Kenneally contends that the ALJ erred in finding that (a) Kenneally's musculoskeletal impairments did not meet or equal the listed criteria for a disability per se, (2) his physical impairments, either alone or in combination, were not of sufficient severity to constitute a listed condition, (3) Kenneally was not credible concerning his statements of pain and disability, (4) Kenneally retained sufficient residual functional capacity (RFC), and (5) Kenneally was not disabled.

III. Facts

Kenneally is currently fifty-three years old and completed high school and two years of training in automobile mechanics. T. 536. Kenneally has previously worked as a laborer and driver for the highway department, store clerk, maintenance man, and laborer at a game farm. See e.g., T. 86. Kenneally alleges that he became disabled on December 25, 1998 due to musculoskeletal complaints, diabetes, and gastrointestinal problems. T. 14.

IV. Standard of Review

A. Disability Criteria

"Every individual who is under a disability shall be entitled to a disability. . . benefit. . . ." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "inability 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." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. -4 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).

The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] 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 which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] 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 [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).

"In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.

V. Discussion

A. Medical Evidence

1. Work History

Kenneally alleges that he became disabled on December 25, 1998 due to musculoskeletal complaints, diabetes, and gastrointestinal problems. T. 14. Kenneally has not engaged in any substantial gainful activity after that date. Id. He did attempt to return to work at the game farm from March until June, 2002 and at a McDonald's restaurant doing maintenance from March until July, 2003, but his medical conditions caused him to terminate his employment. T. 589-90, 537, 540, 542.

2. 1998 - 2000

On July 23, 1998, Kenneally began treatment at St. Peter's Hospital ("St. Peter's") for bilateral leg pain. T. 158-59. Upon his initial visit, staff noted that KENNEALLY was also suffering from diabetes, he was obese and non-compliant with the diabetes diet, and the pain in his legs could be related to circulatory problems or neuropathy secondary to his diabetes. T. 158-59. On July 31, 1998, during a follow-up appointment, staff noted that Kenneally's diabetes was under better control, but he was still complaining of bilateral leg pain and had a possible diagnosis of carpal tunnel syndrome. T. 156-57.

On December 21, 1998, Kenneally returned for a follow-up appointment. T. 151-52. Kenneally stated that he was obtaining relief from over-the-counter pain medication and he had a history of degenerative disc disease. T. 151. Upon examination, Kenneally's knees showed signs of crepitus*fn2 and there was pain in his left knee when testing his range of motion. T. 152. Kenneally was diagnosed with degenerative joint disease, which was noted to be a longstanding problem. Id. On January 4, 1999, x-rays of Kenneally's knees were unremarkable. T. 131, 132.

On January 8, 1999, Kenneally returned to St. Peter's complaining of (1) increased and ongoing pain in his knees which was aggravated by standing or sitting in one location, (2) difficulty transferring in and out of his car, and (3) the inability to work.

T. 133-34, 142. Examination revealed no changes and Kenneally was referred to physical therapy. T. 133, 142. A month later, Kenneally continued to complain of chronic knee pain despite therapy three times a week. T. 127, 135. Examination of Kenneally's joints showed abnormalities, he ambulated with an antalgic gait,*fn3 and he exhibited pain when the range of motion in his knees was assessed. T. 128, 136. Kenneally was referred for an orthopaedic consultation. Id.

On February 12, 1999, Kenneally was examined by an orthopaedist, Dr. Hea Lew. T. 160-62. Lew noted that for the past year, Kenneally had moderate to severe, constant, dull, aching pain in his lower back, legs, and knees. T. 160. The pain sharpened at night and made it difficult to ambulate. Id. Kenneally reported that he could not walk a city block on level ground, could not stand in one place for half an hour, could not do laundry or go grocery shopping, and could no longer go out, do crafts, or play sports. Id. However, Kenneally also stated that he did not use a cane, was able to sit in a chair for half an hour, climb a flight of stairs, ...

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