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Kennedy v. Berryhill

United States District Court, M.D. Pennsylvania

December 27, 2017

JOHN KENNEDY, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Martin C. Carlson United States Magistrate Judge

         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 (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 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; 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 13-month 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.)

         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.)

         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 ...


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