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Kennedy v. Astrue

November 20, 2008

TONY S. KENNEDY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Richard D. Rogers United States District Judge

MEMORANDUM AND ORDER

Plaintiff has filed an application for social security disability benefits. Plaintiff alleges an onset date of January 16, 2003. The application was denied by defendant on the basis of the October 30, 2006 opinion of an administrative law judge (ALJ). This case is now before the court to review defendant's decision to deny benefits.

I. STANDARD OF REVIEW

The court reviews defendant's decision to determine whether the decision was supported by substantial evidence and whether the correct legal standards were applied. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence is such evidence that a reasonable mind might accept to support the conclusion. Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant's decision, and on that basis decide if substantial evidence supports the defendant's decision. Glenn, 21 F.3d at 984.

II. ALJ DECISION (Tr. 14-22)

There is a five-step evaluation process followed in these cases. First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments which are "severe." At step three, the ALJ decides whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. Next, the ALJ determines the claimant's residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process, the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.

In this case, the ALJ decided plaintiff's applications should be denied on the basis of the fourth and/or fifth steps of the evaluation process. The ALJ decided that plaintiff could perform his previous job as a general hardware salesperson. The ALJ further found that defendant retained the residual functional capacity (RFC) to perform such occupations as: telephone solicitor and general merchandise salesperson.

More specifically, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date of disability. He determined that plaintiff has the severe physical impairment of a degenerative disc - L3 to S1, and the non-severe impairment of depression.

The ALJ considered plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms to be "not entirely credible." (Tr. 19).

According to the ALJ, plaintiff retained the RFC: to perform light work which demands lifting/carrying 20 pounds occasionally and 10 pounds frequently; sitting 6 hours in an 8 hour workday; standing or walking 6 hours in an 8 hour workday. [Plaintiff] could not perform work requiring more than occasional climbing and should avoid exposure to vibration. (Tr. 17). The ALJ further agreed with the conclusion of a state agency medical consultant that "plaintiff's depression caused no restrictions in activities of daily living; no difficulties in maintaining social functioning; only mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation, of extended duration." (Tr. 17).

A vocational expert answered interrogatories supplied by the ALJ in this matter. The ALJ relied upon those answers to support his conclusions regarding plaintiff's ability to perform substantial gainful employment.

III. ARGUMENTS

Plaintiff makes three main arguments in his brief. However, the second and third arguments are somewhat mixed together and shall be considered together in this opinion.

A. ALJ's Step Two Analysis

Plaintiff's first argument is that the ALJ erred in failing to find the plaintiff's depression ...


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