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Kenyon v. Commissioner of Social Security

United States District Court, N.D. New York

May 30, 2017

MARY ELLEN KENYON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN. KATHRYN S. POLLACK, ESQ. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant

          MEMORANDUM-DECISION AND ORDER

          William B. Mitchell Carter, U.S. Magistrate Judge

         This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in accordance with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 12, 13.)

         Currently before the Court, in this Social Security action filed by Mary Ellen Kenyon (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross- motions for judgment on the pleadings. (Dkt. Nos. 9, 10.) For the reasons set forth below, it is ordered that Plaintiff's motion is denied and Defendant's motion is granted.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1966. (T. 112.) She received her GED. (T. 227.) Generally, Plaintiff's alleged disability consists of fibromyalgia, left knee impairment, carpal tunnel syndrome (“CTS”), memory loss, edema, bi-polar disorder, and anxiety. (T. 112.) Her date last insured is March 31, 2013. (T. 111.) Her alleged disability onset date is July 26, 2012. (T. 112.) She previously worked as a licensed practical nurse and cashier. (T. 227.)

         B. Procedural History

         On December 24, 2012, Plaintiff applied for a period of disability and disability insurance benefits under Title II of the Social Security Act. (T. 111.) Plaintiff's application was initially denied, after which she timely requested a hearing before an Administrative Law Judge (“the ALJ”). On July 30, 2014, Plaintiff appeared before the ALJ, F. Patrick Flanagan. (T. 73-110.) On October 28, 2014, ALJ Flanagan issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 17-37.) On January 8, 2016, the Appeals Council (“AC”) denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T.1-6.) Thereafter, Plaintiff timely sought judicial review in this Court.

         C. The ALJ's Decision

         Generally, in his decision, the ALJ made the following findings of fact and conclusions of law. (T. 22-32.) First, the ALJ found that Plaintiff met the insured status requirements through March 31, 2013 and Plaintiff had not engaged in substantial gainful activity since July 26, 2012. (T. 22.) Second, the ALJ found that Plaintiff had the severe impairments of fibromyalgia, anxiety disorder, and affective disorder. (T. 22.)

         Third, the ALJ found that Plaintiff did not have an impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 24-25.) Fourth, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to:

lift and/or carry 20 pounds occasionally, ten pounds frequently, sit for six hours in an eight-hour day, and stand and/or walk for six hours in an eight hour day. [Plaintiff] should avoid working in cold temperatures, below 32 degrees. She is able to occasionally balance, stoop, kneel, crouch, and crawl. [Plaintiff] is able to understand, remember and carry our simple instructions and tasks. She is able to tolerate no more than occasional changes in routine and occasional decision-making. She is able to accept instructions from supervisors, relate to coworkers, and deal superficially with the public. She is not able to perform fast-paced production tasks.

(T. 26.) Fifth, the ALJ determined that Plaintiff was incapable of performing her past relevant work; however, there were jobs that existed in significant numbers in the national economy Plaintiff could perform. (T. 30-32.)

         II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

         A. Plaintiff's Arguments

         Plaintiff makes four separate arguments in support of her motion for judgment on the pleadings. First, Plaintiff argues the ALJ erred at step two in assessing the severity of Plaintiff's impairments. (Dkt. No. 9 at 9-11 [Pl.'s Mem. of Law].) Second, Plaintiff argues the RFC determination is not supported by substantial evidence. (Id. at 11-14.) Third, Plaintiff argues the credibility determination is not supported by substantial evidence. (Id. at 15-16.) Fourth, and lastly, Plaintiff argues the ALJ's step five determination is not supported by substantial evidence. (Id. at 17.)

         B. Defendant's Arguments

         In response, Defendant makes four arguments. First, Defendant argues the ALJ properly considered Plaintiff's impairments at step two. (Dkt. No. 10 at 5-7 [Def.'s Mem. of Law].) Second, Defendant argues the ALJ's RFC finding is supported by substantial evidence. (Id. at 7-14.) Third, Defendant argues the ALJ properly considered Plaintiff's subjective statements. (Id. at 14-18.) Fourth, and lastly, Defendant argues the ALJ's step five finding is supported by substantial evidence. (Id. at 18-19.)

         III. RELEVANT LEGAL STANDARD

         A. Standard of Review

         A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

         “Substantial evidence” is evidence that amounts to “more than a mere scintilla, ” and has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

         “To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts ...


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