United States District Court, E.D. Pennsylvania
P. HART UNITED STATES MAGISTRATE JUDGE
Faith Kennedy brought this action under 42 USC §405(g)
to obtain review of the decision of the Commissioner of
Social Security denying her claim for Disability Insurance
Benefits (“DIB”). She has filed a Request for
Review to which the Commissioner has responded. As set forth
below, Kennedy's Request for Review will be denied, and
judgment granted in favor of the Commissioner.
Factual and Procedural Background
was born on March 21, 1976. Record at 142. She obtained a
college degree. Record at 177. She worked in the past as an
administrator in several personal care homes for the elderly.
Record at 178.
March 2, 2015, Kennedy filed her application. Record at 142.
In it, she asserted disability as of November 10, 2014, as a
result of benign hypermobility joint syndrome, fibromyalgia,
chronic fatigue and pain, restless leg syndrome, sleep
disturbance, depression, anxiety, and cognitive impairment.
Record at 142, 176. At her hearing, Kennedy amended her onset
date to May 1, 2015, and withdrew her claims of mental
illness. Record at 33.
application for benefits was denied on May 13, 2015. Record
at 71. She then sought de novo review by an
Administrative Law Judge (“ALJ”). Record at 80. A
hearing took place in this matter on August 29, 2017. Record
at 29. On September 19, 2017, however, the ALJ issued a
written decision denying benefits. Record at 12. The Appeals
Council denied Kennedy's request for review, permitting
the ALJ's decision to stand as the final decision of the
Commissioner. Record at 3. Kennedy then filed this action.
role of this court on judicial review is to determine whether
the Commissioner's decision is supported by substantial
evidence. 42 U.S.C. §405(g); Richardson v.
Perales, 402 U.S. 389 (1971); Doak v. Heckler,
790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler,
753 F.2d 283, 285 (3d Cir. 1985). Substantial evidence is
relevant evidence viewed objectively as adequate to support a
decision. Richardson v. Perales, supra at
401; Kangas v. Bowen, 823 F.2d 775 (3d Cir. 1987);
Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.
1979). Moreover, apart from the substantial evidence inquiry,
a reviewing court must also ensure that the ALJ applied the
proper legal standards. Coria v. Heckler, 750 F.2d
245 (3d Cir. 1984).
prove disability, a claimant must demonstrate that there is
some "medically determinable basis for an impairment
that prevents him from engaging in any 'substantial
gainful activity' for a statutory twelve-month
period." 42 U.S.C. § 423(d)(1). As explained in the
following agency regulation, each case is evaluated by the
Commissioner according to a five-step process:
(i) At the first step, we consider your work activity if any.
If you are doing substantial gainful activity, we will find
that you are not disabled. (ii) At the second step, we
consider the medical severity of your impairment(s). If you
do not have a severe medically determinable physical or
mental impairment that meets the duration requirement in
§ 404.1509, or a combination of impairments that is
severe and meets the duration requirement, we will find that
you are not disabled. (iii) At the third step, we also
consider the medical severity of your impairment(s). If you
have an impairment(s) that meets or equals one of our
listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled. (iv). At the
fourth step, we consider our assessment of your residual
functional capacity and your past relevant work. If you can
still do your past relevant work, we will find that you are
not disabled. (v). At the fifth and last step, we consider
our assessment of your residual functional capacity and your
age, education and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to
other work, we will find that you are not disabled. If you
cannot make an adjustment to other work, we will find that
you are disabled.
20 C.F.R. § 404.1520 (references to other regulations
The ALJ's Decision and Kennedy's Request for
determined that Kennedy suffered from the severe impairments
of mild sleep apnea, periodic limb movement disorder, benign
hypermobility syndrome and possible Ehlers-Danlos syndrome.
Record at 18. He found that no impairment, and no combination
of impairments, met or medically equaled a listed impairment.
Record at 19.
found that Kennedy retained the following residual functional
Light work … except the claimant is limited to
frequently reaching overhead bilaterally; and all other
reaching is limited to frequent bilaterally. The
claimant's ability to handle is limited to frequent
bilaterally; the claimant's ability to finger is limited
to frequent bilaterally; and the claimant's ability to
feel is limited to frequent bilaterally. The claimant can
climb ramps and stairs occasionally; can climb ladders, ropes
and scaffolds occasionally; and can balance, stoop, kneel,
crouch and crawl occasionally. The claimant can work at
unprotected heights occasionally; move mechanical parts
occasionally; and can operate a motor vehicle occasionally.
The claimant can work in extreme cold occasionally. The
claimant requires a sit-stand option; and will be off-task
ten percent of the day in addition to normal breaks.
Record at 19-20.
upon the testimony of a vocational expert who appeared at the
hearing, the ALJ determined that Kennedy could work as a
small products assembler, light product inspector, or packer.
Record at 23. He concluded, therefore, that she was not
Request for Review, Kennedy raises these arguments: (1) the
ALJ wrongly failed to consider certain evidence of
impairment; (2) the ALJ wrongly failed to credit the opinions
offered by treating care providers; (3) the ALJ erred in
failing to identify fibromyalgia as a severe impairment; (4)
the ALJ erred in failing to identify the intervals at which
Kennedy must alternate sitting and standing; (5) the ALJ
wrongly relied on the “sit and squirm test”; and
(6) the ALJ failed to consider Kennedy's excellent work
The ALJ's Treatment of the Evidence
pages of her brief, Kennedy identifies over fifteen
individual treatment notes which she claims were either
ignored or misinterpreted by the ALJ. Brief at 11-21. She
also complains that the ALJ failed to evaluate the Disability
Report she filed in connection ...