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Kelly v. Berryhill

United States District Court, D. Kansas

December 22, 2017

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



         Plaintiff Jessica Kelly seeks review of a final decision by Defendant, the Commissioner of Social Security (“Commissioner”), denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (“the Act”). Kelly alleges that the administrative law judge (“ALJ”) erred in assessing her residual functioning capacity (“RFC”) and in failing to properly assess her credibility. Finding that the ALJ failed to adequately explain her reasons for not adopting a limitation contained in a medical expert's opinion, the Court reverses the decision of the Commissioner and remands for further consideration.

         I. Factual and Procedural Background

         Kelly was 21 years old on her alleged disability onset date, September 17, 2008. She has a high school education with some college. She previously worked as a receptionist, chiropractic assistant, and media specialist, but has not engaged in substantial gainful activity since her alleged onset date. In October of 2012, she applied for disability insurance benefits and supplemental security income.

         Kelly's relevant medical history dates to 2008 when, while pregnant with her daughter, she underwent a procedure to remove a kidney stone and insert a ureteral stent. Shortly after she gave birth, doctors removed the stent and performed a cystoscopy. Following these procedures, Kelly developed interstitial cystitis[1] and pelvic floor dysfunction.[2] Over the next seven years, she would undergo treatment from a variety of sources for interstitial cystitis, pelvic floor dysfunction, fibromyalgia, chronic pain syndrome, chronic low back pain, migraines, irritable bowel syndrome, depressive disorder, anxiety disorder, bipolar disorder, and substance use disorder, among others.

         Kelly attended three hearings before ALJ Christine Cooke in 2014 and 2015. At the last of these hearings, Dr. Chukwuemeka Ezike testified as a medical expert and gave his opinion of Kelly's RFC. He concluded that she was capable of lifting 20 pounds occasionally and ten pounds frequently, sit for six hours in an eight-hour day, stand and walk for six hours in an eight-hour day, and occasionally climb stairs and ramps. He further stated that she could occasionally stoop, kneel, crouch, and crawl, but never climb ladders, ropes, or scaffolds, and that she should avoid hazards (heights, moving machinery, and extreme cold). Finally, he stated that she would possibly need unscheduled breaks.

         With one exception, the ALJ adopted Dr. Ezike's conclusions almost verbatim when she assessed Kelly's RFC. The ALJ did not include Dr. Ezike's limitation that Kelly would need to be allowed to take unscheduled breaks due to her interstitial cystitis. The ALJ also included mental limitations; limited Kelly to an indoor work environment, free from exposure to extreme cold, extreme heat, wetness, humidity, fumes, odors, dust, or airborne particulate; and specified that Kelly needed reasonable access to a restroom facility.[3]

         After concluding that Kelly could not perform her past relevant work, the ALJ found that Kelly could perform other jobs that existed in the national economy, and was therefore not disabled. Kelly appealed that determination to the Appeals Council. The Appeals Council denied review, rendering the ALJ's decision the final decision of the Commissioner. Kelly timely filed her complaint challenging that decision in this Court.

         II. Legal Standard

         Judicial review of the Commissioner's decision is guided by the Act, which provides that the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.[4] The Court must therefore determine whether the factual findings of the Commissioner are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard.[5] “Substantial evidence is more than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind might accept to support the conclusion.”[6] The Court may “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].”[7]

         An individual is under a disability only if she can “establish that she has a physical or mental impairment which prevents her from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months.”[8] This impairment “must be severe enough that she is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering her age, education, and work experience.”[9]

         Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled.[10] The steps are designed to be followed in order. If it is determined, at any step of the evaluation process, that the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.[11]

         The first three steps of the sequential evaluation require the ALJ to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those severe impairments meets or equals a designated list of impairments.[12] If the impairment does not meet or equal one of these designated impairments, the ALJ must then determine the claimant's RFC, which is the claimant's ability “to do physical and mental work activities on a sustained basis despite limitations from her impairments.”[13]

         Upon assessing the claimant's RFC, the ALJ moves on to steps four and five, which require the ALJ to determine whether the claimant can perform her past relevant work, and if not, then whether she can generally perform other work that exists in the national economy.[14]The claimant bears the burden in steps one through four to prove a disability that prevents performance of her past relevant work.[15] The burden then shifts to the Commissioner at step five to show that, despite her alleged impairments, the claimant can perform other work in the national economy.[16]

         III. Analysis

         Kelly challenges the Commissioner's decision on two fronts. First, she argues that the ALJ improperly assessed her RFC by affording “great weight” to the medical opinion of Dr. Ezike, but then failing to explain why she did not incorporate Dr. Ezike's limitation of unscheduled breaks into her assessment of Kelly's RFC. Second, Kelly argues that the ALJ failed to conduct the proper credibility analysis of Kelly's statements about the limiting effects of her disorders. Because the Court agrees with Kelly's first argument, the Court reverses and remands the case ...

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