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Kenning v. Berryhill

United States District Court, W.D. New York

November 20, 2017

JEBEDIAH CHARLES KENNING, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Represented by counsel, Jebediah Charles Kenning (“Plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security[1] (“Defendant” or “the Commissioner”) denying his applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”). Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiff's motion is granted and Defendant's motion is denied.

         II. Procedural History

         On June 24, 2013, Plaintiff, a then-thirty-four year old former driver, salesperson and market development manager, filed for DIB and SSI, alleging disability beginning October 31, 2011 due to herniated and bulging discs in the lumbar spine, degenerative disc disease in the lumbar spine, anxiety and depression (T. 146-47, 234-35, 246, 254, 259).[2] Plaintiff's application was denied on September 16, 2013 (T. 150-53), and he timely requested a hearing before an administrative law judge (“ALJ”). ALJ Brian Kane held a hearing on May 7, 2015 (T. 85-128). On June 18, 2015, the ALJ issued a decision in which he found Plaintiff was not disabled as defined in the Act (T. 45-56). On October 5, 2016, the Appeals Council denied review leaving the ALJ's decision as the final agency decision (T. 1-6). This action followed. The Court assumes the parties' familiarity with the facts of this case and will not repeat them here. The Court will discuss the record further as necessary to the resolution of the parties' contentions.

         III. The ALJ's Decision

         Initially, the ALJ found that Plaintiff met the insured status requirements of the Act through June 30, 2012 (T. 50).[3] At step one of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520 and 416.920, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 31, 2011 (Id.). At step two, the ALJ found that Plaintiff had the severe impairment of degenerative disc disease of the lumbar spine (20 C.F.R. §§ 404.1520(c) and 416.920(c)) (Id.). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment (T. 52). Before proceeding to step four, the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, as that term is defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) (T. 25) with the following limitations: (1) lift and carry up to 20 pounds; (2) sit for six hours; (3) stand and walk a total of two hours; and (4) receive a break every hour of five minutes or less (T. 52). At step four, the ALJ found that Plaintiff was capable of performing past relevant work as a merchandise manager, which does not require the performance of work-related activities precluded by the claimant's RFC. (T. 55). Accordingly, the ALJ found that Plaintiff was not disabled from October 31, 2011 through the date of his decision (T. 55).

         IV. Scope of Review

         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). “The deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

         V. Discussion

         Plaintiff makes the following arguments in support of his motion for judgment on the pleadings: (1) the ALJ's RFC finding was not supported by substantial evidence because the ALJ rejected the only medical source statement as insufficiently specific; and (2) the ALJ's RFC finding was not supported by substantial evidence because the only medical source opinion found that Plaintiff had mild to moderate limitations with prolonged sitting, and, contrary to the medical source statement, the ALJ found in the RFC that he could sit continuously for six hours. For the reasons discussed below, the Court finds that the ALJ's RFC finding was not supported by substantial evidence because the ALJ rejected the only medical source statement presented and, accordingly, remand is required.

         A. RFC

         1. Absence of Medical Opinion

         Plaintiff argues that the Court should remand his case to the ALJ because the ALJ's RFC determination is not supported by substantial evidence (Docket 11-3 at 12). Specifically, Plaintiff contends that the ALJ discounted the only expert medical opinion in the record concerning Plaintiff's limitations, which resulted in an RFC based on bare medical findings (Docket 11-3 at 12-15). The Commissioner contends that the RFC was based on ...


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