Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ATHENA KENNER,
Plaintiff,
-against-
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM AND ORDER
Case No. 1:23-cv-8220 (FB)
Appearances:
For the Plaintiff:
ATHENA KENNER, pro se
785 Schenck Avenue, Apt. 3C
Brooklyn, NY 11207
For the Defendants:
NAHID SOROOSHYARI
HUGH DUN RAPPAPORT
SSA – Office of the General Counsel
6401 Security Boulevard
Baltimore, MD 21235
BLOCK, Senior District Judge:
Plaintiff Athena Kenner seeks review of the Commissioner of the Social Security
Administration’s (“the Commissioner”) denial of her application for Social Security Disability
Insurance benefits under Title II of the Social Security Act. The Commissioner moves for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the following
reasons, the Commissioner’s motion is GRANTED.
I. Background
Kenner was hospitalized in December 2016 when an aneurysm in her brain ruptured. Tr.
at 325, 333, 337, 338, ECF No. 12.1 Kenner previously worked as a cleaner in New York City
parks, but has not worked since being hospitalized. Id. at 252–53. Kenner applied for Social
1 The Commissioner filed the administrative transcript of the proceedings before the Social Security Administration
at ECF No. 12. All references to ECF No. 12 are denoted as “Tr. __.”
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Security Disability Insurance benefits on January 3, 2017, claiming she was disabled by the brain
aneurysm, as well as asthma, anemia, and high blood pressure. Id. at 12–13, 221–29.
The Social Security Administration (“SSA”) scheduled a hearing to review Kenner’s
claims, but Kenner failed to appear at this hearing, so an administrative law judge (“ALJ”)
dismissed her request for a hearing. Id. at 81–82, 111-16, 128. Kenner requested review of that
dismissal, the Appeals Council granted her request and vacated and remanded the ALJ’s
decision. Id. at 84–85, 130. The ALJ then conducted a hearing, which Kenner attended, but the
ALJ adjourned that hearing to give Kenner an opportunity to obtain representation. Id. at 64–70.
Kenner appeared for the rescheduled hearing, reported that she had not obtained representation,
and the hearing proceeded. Id. at 50–63. The ALJ later issued a decision finding Kenner not
disabled. Id. at 9–16. The Appeals Council denied review of the ALJ’s decision and Kenner
thereafter commenced this action.
II. Discussion
District courts reviewing the Commissioner’s determinations under 42 U.S.C. § 405(g)
must “conduct a plenary review of the administrative record to determine if there is substantial
evidence, considering the record as a whole, to support the Commissioner’s decision and if the
correct legal standards have been applied.”2 Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir.
2022). They may not conduct a de novo review or substitute their judgment for that of the ALJ,
see Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), reversing the ALJ “only if the
factual findings are not supported by substantial evidence or if the decision is based on legal
error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). “Substantial evidence means such
2 Throughout this opinion, the Court omits all internal quotation marks, footnotes, and citations, and adopts all
alterations, unless otherwise indicated.
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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Selian
v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
The Commissioner moves for judgment on the pleadings on the ground that the ALJ’s
decision was supported by substantial evidence. In response, Kenner submitted a one-page,
handwritten letter which stated that she had submitted all medical records documenting her
illnesses and requesting that the Court assist her with her case. ECF No. 16.
Normally, this would not be sufficient to oppose a motion for judgment on the pleadings,
but the Court is sympathetic to Kenner’s situation and the fact that she is proceeding pro se. The
Court recognizes that “if ‘the pleadings are themselves sufficient to withstand dismissal,’ a pro se
complaint will not be dismissed simply because the complainant failed to respond to a Rule 12(c)
motion.” Nauss v. Barnhart, 155 F. App’x 539, 540 (2d Cir. 2005) (quoting Maggette v.
Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983)). And “pro se litigants ‘are entitled to a liberal
construction of their pleadings,’ and, therefore, their complaints ‘should be read to raise the
strongest arguments that they suggest.’” Polanco v. Comm’r of Soc. Sec., 304 F. Supp. 3d 345,
356 (S.D.N.Y. 2018) (quoting Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)).
Unfortunately, Kenner has failed to explain why the Commissioner’s decision was
erroneous or why she is entitled to disability benefits. She has not submitted anything to this
Court to explain her claims or alleged disability. There are, in effect, no pleadings for the Court
to liberally construe. SSA informed Kenner of her right to representation, that many
representatives will only charge a fee if the client is successful, and that other representatives
will represent clients for no charge at all. Tr. at 139. SSA provided Kenner a list of organizations
that provide representation free of charge. Id. at 144–49. The Commissioner complied with Local
Civil Rule 12.1 by informing Kenner of the consequences of failing to respond to the motion and
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that she must submit evidence supporting her claims. Def.’s Mot. for J. on the Pleadings, 26–27.
Following the Commissioner’s motion for judgment on the pleadings, the Court advised Kenner
that “she may contact the City Bar Justice Center Federal Pro Se Legal Assistance Project . . . for
limited legal assistance” and “[s]he may also contact the Pro Se Office at the United States
Courthouse . . . for information regarding Court procedures” and provided contact information
for both. Text Order, November 26, 2024.
Kenner has had ample opportunity to obtain representation and to provide submissions to
the Court explaining her argument. Nevertheless, the Court opts to conduct a review of the
record to determine if the ALJ’s decision is supported by substantial evidence.
In her application, Kenner contended that she was disabled by her brain aneurysm,
asthma, anemia, and high blood pressure. Tr. at 221–29. Kenner explained her symptoms, which
the ALJ summarized as follows:
At the hearing, the claimant testifies that she experiences slight headaches due to
the aneurysm approximately 3 or 4 times per month that can last for several days at
a time. However, she explains that she uses over the counter Tylenol to manage the
pain. She also testifies that she medically manages a thyroid impairment and has
intermittent sciatica. The claimant states she has difficulty sitting and standing for
prolonged periods due to pain in her legs, walks with a cane, and claims her left
arm feels heavy since the stroke and unable to hold heavy objects. Yet, she testifies
she can grip items and use her hands. Additionally, the claimant reports difficulty
concentrating and impaired memory since the aneurysm.
Tr. at 13.
The Commissioner employs a five-step inquiry to evaluate Social Security disability
claims. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). At step one, the ALJ
determines whether the claimant has been engaged in substantial gainful activity. 20 C.F.R. §
416.920(a)(4)(i). Here, the ALJ found that Kenner had not engaged in substantial gainful activity
since her application date, January 3, 2017. Tr. at 12. At step two, the ALJ determines whether
the claimant has a severe medically determinable impairment or combination of impairments. Id.
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§ 416.920(c). An impairment is severe if it significantly limits the claimant’s mental ability to do
basic work activities. Id. 20 C.F.R. § 416.922.
In its step two analysis, the ALJ reviewed Kenner’s medical records at length. Id. at 12–
16. These included a January 2017 evaluation in which Kenner’s doctor noted that she had had a
“remarkable recovery” and Kenner denied active complaints, and specifically denied headaches,
weakness, sensory changes, visual problems, or difficulty balancing. Id. at 13, 337. The ALJ
reviewed a February 2017 evaluation in which Kenner “reported only mild headache relieved
with Acetominophen, mild left shoulder pain, and intermittent imbalance with prolonged
walking.” Id. at 13. The examination record showed that Kenner had mild left arm drift, was “in
no acute distress,” her “[r]ecent and remote memory [were] normal,” her upper and lower
extremity strength was normal,” her gait was normal, and her attention/concentration were
sufficient to state the days of the week backward. Id. at 326–27.
At a March 2017 examination, Kenner complained of weakness in her left arm and leg.
Id. She also reported that she used an inhaler for asthma once or twice a week, she could walk
two or three blocks, she did not have difficulty climbing stairs, and she used the subway and
buses. Id. at 333. The medical report showed that Kenner was in no acute distress; her gait was
normal; she did not use a cane, a walker, or any other assistive device; her hand and finger
dexterity were intact; she had normal range of motion in her cervical, thoracic, and lumbar spine;
she had 5/5 strength in all muscles; and she had normal sensation. Id. at 334.
At an April 2017 examination, Kenner reported that she had no complaints, and denied
any headaches, weakness, or difficulty balancing. Id. at 338. An October 2018 examination by a
nurse practitioner, however, reported that Kenner “suffers from dizziness, headaches, poor
memory and concentration.” Id. at 348.
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After reviewing all this evidence, the ALJ explained that:
[T]he claimant has acknowledged that she is able to reside independently and she
reported a capacity to cook, clean, shop, travel independently, manage money, and
take walks in the park several times per week. At the independent examination, she
admitted a capacity to walk 2 to 3 blocks at a time, had no difficulty with stair
climbing, and stated she could use public transportation.
Moreover, according to her testimony she is able to manage her occasional
headache pain with Tylenol, suggesting conservative care is effective in controlling
that symptom.
Id. at 16.
The ALJ thus concluded that Kenner “does not have an impairment or combination of
impairments that has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months[.]” Id. at 12. Accordingly, the
ALJ determined that Kenner “does not have a severe impairment or combination of
impairments.” Id. The ALJ also concluded that there was a lack of evidence to support Kenner’s
claims that her asthma, thyroid, left hip, and sciatica complaints constituted severe impairments.
Id. at 15.
As the foregoing discussion makes clear, the ALJ’s decision was supported by substantial
evidence. The ALJ reviewed the medical evidence in detail, including the opinions of Kenner’s
physicians, her nurse practitioner, and her testimony, to conclude that Kenner does not have a
severe impairment or combination of impairments that significantly limits her ability to perform
basic work activities. Id. at 12–16. Basic work activities include activities and functions such as
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;” “seeing,
hearing, and speaking;” “[u]nderstanding, carrying out, and remembering simple instructions;
“[u]se of judgment;” “[r]esponding appropriately to supervision, co-workers and usual work
situations;” and “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922(b).
Although Kenner may suffer from some impairments, the ALJ reasonably concluded that she
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failed to establish that her impairments significantly limit her abilities to perform such basic
work activities. Tr. at 16. The Court cannot conclude that “no reasonable factfinder could have
reached the same conclusion as the ALJ.” Schillo v. Saul, 31 F.4th 64, 69 (2d Cir. 2022).
III. Conclusion
The ALJ’s disability determination is supported by substantial evidence, is free of legal
error, and is affirmed. Accordingly, the Commissioner’s motion is GRANTED.
SO ORDERED.
_/S/ Frederic Block__________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 4, 2025
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