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Cathy Kennerson v. Michael J. Astrue

August 3, 2012


The opinion of the court was delivered by: Michael A. Telesca Honorable Michael A. Telesca United States District Judge



Cathy Kennerson ("Kennerson" or "Plaintiff"), brings this action pursuant to Title XVI of the Social Security Act, seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI"). Plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rule of Civil Procedure ("Rule 12(c)") seeking to reverse the judgment of the Commissioner and remand for calculation of benefits, or alternatively, for further administrative proceedings. The Commissioner has opposed the motion and cross-moved for judgment on the pleadings. For the reasons set forth below, this Court finds that the record as a whole supports a finding that Plaintiff is disabled within the meaning of the Social Security Act ("the Act"). Accordingly, the matter is remanded to the Commissioner for calculation and payment of benefits.


A. Overview

Plaintiff's application for Supplemental Security Income ("SSI") benefits, filed on January 15, 2008, alleged impairments of borderline intellectual functioning, a learning disability, depression, dependent personality disorder, and low back pain with an onset date of November 5, 2003. T.136, 232.*fn1 After her claim was denied on April 24, 2008, T.64-67, Plaintiff filed a written request for a hearing which took place before ALJ Edward Pitts on May 12, 2010. T.10. Plaintiff was represented by counsel, Mark M. McDonald, Esq., who has continued represent her in this proceeding.

In a decision dated May 27, 2010, the ALJ found that Plaintiff was not disabled within the meaning of the Act. T.10-17. The Appeals Council denied Plaintiff's request for review on September 15, 2010, making the ALJ's decision the final decision of the Commissioner. T.1-5. This proceeding followed.

B. The Evidence Before the ALJ

1. Biographical Information and Plaintiff's Testimony

Kennerson was born on April 9, 1983, and was twenty-four years-old on the she filed her SSI claim. Her father was deceased.

T.282. Her mother, who is a severe alcoholic and developmentally disabled, is not involved in her life, having previously abandoned Kennerson on several occasions when Kennerson was a minor.

T.247-49. At the time of the hearing, Kennerson lived with her boyfriend and his family. T.41. Kennerson and her boyfriend have three children together, but the children were removed from Kennerson's care at infancy because she was not able to care for them. T.315.

Kennerson testified that she had been in a special education program since the first grade and at one point, a social worker classified her as mentally retarded. T.309-10. She eventually graduated from high school with an IEP diploma, T.247-49, but was never able to obtain her GED because she could not pass the test.

T.27. Apparently, Kennerson had received SSI benefits as a child but lost them because her mother failed to apply for their renewal. T.303-05.

Between September 2002 and April 2003, Kennerson worked with the State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") between five and twenty hours a week training to be a dishwasher. The VESID reports indicate that her job coach worked with her to learn "all phases of the dish room operation, racking, rinsing, washing pots and pans, dish machine, operation, sorting and stacking clean dishes." T.177-89.

Between April and May 2003, VESID began teaching Kennerson how to do assembly work. T.191. In June 2003, she was obtained competitive employment as a parts inspector by Badger Technologies.

T.168. However, the pace was too fast and she needed extensive supervision. T.30. She explained that she "didn't really understand what [she] was doing" and that her supervisor had to come help her "almost like an hour every couple hours[.]" T.30. She was laid off after six months because "she just couldn't handle" the work or the pace of the job. Id. Kennerson stated that this was the longest she had ever held a job. Id. The ALJ agreed that her brief employment at Badger Technologies did not qualify as past relevant work. T.31.

Kennerson testified that she had not worked since 2006 because she has problems completing job applications and dealing with inconsistent job duties. T.31. She also cited back pain and numbness as reasons for not returning to work. Id. She thought she might be able to work if her duties were consistent and not too difficult or stressful. T.31, 52.

With regard to her back pain and numbness, Kennerson stated that she saw a doctor (Dr. Daoud) periodically. T.32. She was prescribed Vicodin for back pain, but she stopped taking it because she did not want to become addicted. T.33. Dr. Daoud prescribed ibuprofen instead. Id. In November 2008, she saw Dr. Daoud after injuring her knee due to slipping on ice. T.33-34. She had seen Dr. Daoud only once or twice since then for her back pain because she lacked transportation. T.34-35. At the time of the hearing, she was looking for a doctor located closer to her home. T.34.

Kennerson testified that she received psychological treatment for a couple of months in 2009, T.37-40, but soon after, she moved out of the county and was no longer eligible for services. T.38-40. She did not seek further treatment due to transportation issues.

T.38. Kennerson stated that she has never taken any medications for any psychological conditions. T.40.

Kennerson testified that while at home, she performs chores such as washing dishes and windows, and putting clothes in the dryer. T.41-42. She makes sandwiches for herself and cooks boxed food, but sometimes needs help measuring ingredients. T.42, 50. She goes grocery shopping but always with a person to help her, because she is afraid she of exceeding her food stamp budget. T.42-43. Kennerson stated that she does not do yard work, but is able to sweep the porch. T.43. She has never had a bank account, and has problems counting change. T.50. Kennerson usually stays at home, watching television or playing computer games. Id. She uses the Internet to chat with family, but needs help getting to the correct webpage. T.43-44.

The heaviest things Kennerson can lift are her children, aged two and three years-old, who weigh approximately thirty pounds each. T.46. Because Kennerson felt she could not physically and mentally take care of her children on her own, they currently live with her boyfriend's mother, with whom she shares joint custody.

T.46-47, 50. Kennerson testified that she usually has the children on weekends, unless the stress of taking care of them is too much. Tr. 46. She explained that she would sit on the floor and play with them, or watch as they play in the yard. T.47.

Kennerson has never had a driver's license because she could not concentrate enough to study for and pass the test. T.45. Kennerson is reliant upon others for transportation. Id.

Kennerson related that she is sometimes "fidgety" when she sits. T.47. Cold and damp weather bother her legs and back.

T.47-48. On a good day, she can sit for thirty to forty-five minutes, and can stand for an hour to an hour-and-a-half. T.48. On a bad day, she can stand for fifteen minutes. Id. She has tried to exercise by stretching. She testifies that she smokes less than a half a pack of cigarettes per day, and does not drink or use drugs.

T.49. Kennerson explained sometimes she has trouble controlling her temper because of stress, which is usually brought on by money or family issues. T.50 She becomes nervous around people and will try to block them out. T.50. She took public transportation once, but was very frightened by the experience. T.51. In addition, she had difficulty figuring out the bus schedule. T.51.

Kennerson has received benefits from the Department of Social Services ("DSS"). T.53. She testified that DSS employees would pick her up and she would do chores such as washing windows and dusting.

T.53-54. DSS credited her for nine hours of work per day, but usually she worked only four or five hours. T.55. She worked with three or four others individuals and got along well with them.

T.56. Kennerson was not sure she if could do this work five days per week because of the pain it caused and because of the confusion she experienced as the result of always needing instructions from her supervisor. Id.*fn2 That is, every time she asked to do another task, she has to ask someone to explain to her how to accomplish it. T.56.

The Social Security Disability Report ("SSDR") shows that the Department of Social Services pays for Kennerson's and her boyfriend's rent and utilities and gives them cash assistance and food stamps. T.112. A New York State Office of Temporary and Disability Assistance report, dated March 6, 2008, states that Kennerson never had a bank account, does not understand money orders, and will forget things if she does not write them down. The report also indicates that Kennerson does not like to be around people, does not understand them, and becomes stressed when things change unexpectedly. T.148-51.

2. Medical Evidence

A psychological report dated September 16, 1994, from an evaluation performed by the Penn Yan school district psychologist when Plaintiff was eleven and a half years-old indicates that she was classified as mentally retarded by the Seneca Falls school district in the first grade. T.309-10. Upon entering the Penn Yan school district at the end of second grade, she received resource ...

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