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Keveanos v. Berryhill

United States District Court, D. New Jersey

April 5, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security,, Defendant.



         Plaintiff Danielle Keveanos brings this action pursuant to 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claims to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34.

         Keveanos raises two principal issues in this appeal.

         First, Keveanos contends that the ALJ failed to properly consider the medical evidence. In particular, she argues, the ALJ omitted certain medical testing and treatment notes from his decision, and improperly weighed the opinions of her treating physician and the state agency doctor.

         Second, Keveanos argues tfiat the ALJ incorrectly accessed her residual functional capacity ("RFC"). In particular, she argues, the ALJ erroneously discounted her subjective complaints of pain and her treating physician's determination that could sit for less than six hours.

         For the following reasons, the decision of the ALJ is affirmed.

         I. Background[1]

         Keveanos seeks to reverse the ALJ's Finding that she did not meet the Social Security Act's definition of "disabled" from May 7, 2013, the alleged onset date, through January 25, 2017, the date of the ALJ's decision. (R. 25-32).

         On June 20, 2014, Keveanos applied for DIB under Title II, alleging that she was disabled as of May 7, 2013, as a result of chronic back pain; degenerative disc, joint, and facet disease; torn discs; and hypothyroidism. (R. 55-56, 133). Her application was initially denied on September 18, 2014 (R. 63), and upon reconsideration on November 3, 2014. (R. 64).

         On November 28, 2016, Keveanos appeared before the ALJ with an attorney and testified. (R. 25). Mary D. Anderson, a vocation expert ("VE"), also testified. (Id.).

         On January 25, 2017, the ALJ issued a decision finding that Keveanos was not disabled within the meaning of the Social Security Act. (R. 25-32). The ALJ concluded that Keveanos's lumbar degenerative disc disease and associated musculoskeletal disorders were severe, but not of listing-level severity. (R. 27-29). Finally, the ALJ concluded that Keveanos, given her RFC, was able to perform work existing in the national economy. (R. 31-32).

         II. Standard

         To qualify for DIB under Title II of the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423 (d)(1) (1982). Additionally, the claimant must show that she had disability insured status at the time she became disabled or that she attained this status at some point during her disability. 42 U.S.C. §§ 4l6(i)(1), 423; 20 C.F.R. §404.131.

         A. The Five-Step Process and This Court's Standard of Review

         Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This Court's review necessarily incorporates a determination of whether the ALJ properly followed the five-step process prescribed by regulation. The steps may be briefly summarized as follows:

Step One: Determine whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three.
Step Three: Determine whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high level to identify clear cases of disability without further analysis). If so, the claimant is automatically eligible to receive benefits; if not, move to step four. Id. §§ 404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the claimant retains the RFC to perform past relevant work. Id. §§ 4O4.1520(e)-(f), 416.920(e)-(f). If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to demonstrate that the claimant, considering her age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec, 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded.

         As to all legal issues, this Court conducts a plenary review. See Schaudeck v. Comm'r of Soc. Sec, 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings, this Court adheres to the ALJ's findings, as long as they are supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will "determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial evidence "is more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Id. (internal quotation marks and citation omitted).

         When there is substantial evidence to support the ALJ's factual findings, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zirnsak, 777 F.3d at 610-11 ("[W]e are mindful that we must not substitute our own judgment for that of the fact finder.").

         This Court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner's decision, or it may remand the matter to the Commissioner for a rehearing. Bordes v. Comm'r of Soc Sec, 235 Fed.Appx. 853, 865-66 (3d Cir. 2007); Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

         Remand is proper if the record is incomplete, or if there is a lack of substantial evidence to support a definitive finding on one or more steps of the five-step inquiry. See Podedworny, 745 F.2d at 221-22. Remand is also proper if the ALJ's decision lacks adequate reasoning or support for its conclusions, or if it contains illogical or contradictory findings. See Burnett v. Comm'r of Soc. Sec, 220 F.3d 112, 119-20 (3d Cir. 2000).

         B. The ALJ's Decision

         The ALJ followed the five-step sequential process in determining that Keveanos did not meet the Social Security Act's definition of disabled from May 7, 2013, the alleged onset date, through January 25, 2017, the date of the ALJ's decision. (R. 25-32). The ALJ's findings may be summarized as follows:

Step 1: At step one, the ALJ determined that Keveanos had not engaged in substantial gainful activity in the relevant period. (R. 27).
Step 2: At step two, the ALJ determined that Keveanos had the following severe impairments: degenerative disc disease, including mild narrowing at ¶ 4-L5 and L5-S1; shallow lumbar levoscoliosis and mild loss of disc space at ¶ 2-L3; broad disc bulging at ¶ 3-L4 and L4-L5 and central dorsal annular abutment of die thecal sac; mild degenerative disc disease in the lower thoracic spine and lumbar spine at ¶ 2-L4 with small osteophytes; post-status T9 laminectomy; and lumbar facet arthropathy. The ALJ furtfier determined that Keveanos's hypothyroidism was being treated successfully, and thus, was not severe. (R. 27).
Step 3: At step three, die ALJ determined that Keveanos did not have an impairment, or combination of impairments, that meets or medically equals the severity of one of die listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1. (R. 27, 29 (citing Listing 1.04)).[2] Listing 1.04 provides:
1.04 Disorders of die spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet artiiritis, vertebral fracture), resulting in compromise of a nerve root (including die cauda equina) or die spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy witii associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04.[3] In addressing this listing, the ALJ noted that Keveanos lacked the attendant sensory and reflex loss. (R. 27, 29).

         Step 4: At step four, the ALJ concluded that Keveanos had the residual functional capacity ("RFC") to perform sedentary work, with the following limitations and provisos:

[Keveanos can] occasionally push, pull, lift or carry 10 pounds, and frequently push, pull, lift or carry less than 10 pounds; can sit for six hours but must alternate to standing for 10 minutes after every 20 minutes of sitting; can stand for two hours but must alternate to sitting for 20 minutes after every 10 minutes of standing; can walk for up to two hours; can occasionally climb ramps, stairs, ladders, ropes or scaffolds; can frequently balance, crawl and kneel; can occasionally stoop and crouch; and can have occasional exposure to vibration, unprotected heights, moving mechanical parts and humidity and wetness.

(R. 29). The ALJ also determined that Keveanos was unable to perform her past work, including the jobs of nurse and administrative assistant. (R. 30).

         Step 5: At step five, the ALJ considered Keveano's age on the alleged disability onset date (40), education (at least a high school education), [4] and work experience in conjunction with the Medical-Vocational Guidelines. (R. 31). Relying on the testimony of the VE, the ALJ identified several representative jobs Keveanos could perform despite her limitations: (1) document preparer (Director of Occupational Titles ("DOT) #249.587-018); (2) address clerk (DOT #209.587-010); and (3) election clerk (DOT # 205.367-030). (R. ...

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