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Kenyon v. Colvin

United States District Court, D. Connecticut

March 23, 2017



          Donna F. Martinez United States Magistrate Judge

         Plaintiff, Lori Ann Kenyon, seeks judicial review of the denial of her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[1] Currently pending are plaintiff's motion to reverse the decision of the Commissioner of Social Security (“Commissioner”) (doc. #19) and defendant's motion to affirm the decision of the Commissioner. (Doc. #20.) Counsel filed a statement of facts and medical chronology, which I incorporate by reference.[2] (Doc. #19-2.) For the following reasons, plaintiff's motion is DENIED and defendant's motion is GRANTED.[3]

         I. Legal Standard

         The standards for determining an individual's entitlement to DIB and SSI, the Commissioner's five-step framework for evaluating claims, and the district court's review of the final decision of the Commissioner are well-settled. I am following those standards, but do not repeat them here.

         II. Discussion

         Plaintiff makes three arguments. She contends that the ALJ erred by finding that (a) her migraine headaches are not a severe impairment; (b) her depression does not meet or medically equal a listed impairment; and (c) that she has the RFC to perform light work. I consider each argument in turn.

         A. Step Two Determination

         Plaintiff argues that the ALJ erred at step 2 by not finding her migraine headaches to be severe. Plaintiff points to a handful of record citations to support her contention that her migraines are severe. In August 2005, she reported on an “Intake Assessment/Psychosocial History” form at Integrated Behavioral Health that she has suffered from migraines for 20 years. (R. 738.) In March 2006, plaintiff was taking Percocet to control her migraines. (R. 793.) Plaintiff asserts that her migraines caused her to miss medical appointments in 2006, and in part, caused her to lose her job in January 2007 after missing too many days of work. (R. 760, 773, 775, 781, 790, 796.) Plaintiff was treated at the emergency room in January and March 2009, September 2010, October 2011, and September 2013 for complaints of migraines, among other symptoms.[4] (R. 1077-81, 1071-75, 1015-45, 1494-1507, 2520.) In August 2013, plaintiff reported to her primary care physician that she was having migraine headaches almost every day. (R. 2604.) Plaintiff argues that the record supports a finding that her migraines are severe in that they have caused her to take medication, seek treatment in the emergency room, miss medical appointments, and lose a job.

         “At step two of the sequential evaluation process, the claimant has the burden of providing medical evidence which demonstrates the severity of her condition.” Burgos v. Astrue, No. 309-CV-1216 (VLB), 2010 WL 3829108, at *3 (D. Conn. Sept. 22, 2010). An impairment is severe if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The impairment also must meet the duration requirement. To be severe, an impairment must have lasted or be expected to last for a continuous period of at least 12 months, or be expected to result in death. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). “[A] diagnosis alone is insufficient to establish a severe impairment as instead, the plaintiff must show that the medically determinable impairments significantly limit the ability to engage in basic work activities.” Durgan v. Astrue, No. 12-CV-279 (DNH/CFH), 2013 WL 1122568, at *3 (N.D.N.Y. Feb. 19, 2013).

         Other than plaintiff's subjective complaints of migraines, which do not constitute medical opinion evidence, Dailey v. Comm'r of Soc. Sec., No. 514CV1518 (GTS/WBC), 2016 WL 922261, at *5 (N.D.N.Y. Feb. 18, 2016) (“Subjective complaints can be supported by objective medical evidence and findings; however, subjective complaints, by their very nature, cannot constitute objective medical evidence”), plaintiff points to only six notations in the nearly 2700 page record showing treatment for migraine headaches. At the time of her hearing, plaintiff testified that she was experiencing two to three migraines a month, but that her injectable medication was effective “[m]ost of the time.” (R. 449, 451.) Substantial evidence supports the ALJ's finding that plaintiff's migraines are not severe. There is no error here.[5]

         B. Step Three Determination

         Plaintiff next argues that the ALJ erred at step three by failing to find that her depression satisfies the paragraph “C” criteria of Listing 12.04 (depressive, bipolar and related disorders), 20 C.F.R. Pt. 404, Subpt. P, App. 1.

         To meet the paragraph C criteria for Listing 12.04, plaintiff must show a “[m]edically documented history of a chronic affective disorder of at least two years' duration that has caused more than a minimal limitation of ...

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