United States District Court, E.D. Arkansas, Little Rock Division
Procedures for Filing Objections:
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James Moody. You may file written objections
to all or part of this Recommendation. If you do so, those
objections must: (1) specifically explain the factual and/or
legal basis for your objection; and (2) be received by the
Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to
appeal questions of fact.
Kennedy (“Kennedy”) applied for social security
disability benefits with an alleged disability onset date of
June 1, 2011. (R. at 128) After conducting an administrative
hearing, the administrative law judge (“ALJ”)
denied her application. (R. at 20).
the Appeals Council denied review (R. at 1), Kennedy
requested judicial review. On December 22, 2014, the Court
reversed and remanded her case for further consideration by
the ALJ. (R. at 612-22).
November 12, 2015, an ALJ conducted a second administrative
hearing, during which Kennedy noted that she had amended her
alleged disability onset date from June 1, 2009 to June 1,
2011. (R. at 552). The ALJ, after hearing testimony from
Kennedy and Larry Seifert, an impartial vocational expert,
again denied her application. (R. at 528, 539-79). The
Appeals Council declined to assume jurisdiction. (R. at 508).
Kennedy has now appealed to this Court.
reasons stated below, the Court recommends reversing and
remanding the Commissioner's decision.
The Commissioner's Decision:
decision, the ALJ found that, through the date last insured,
Kennedy had the severe impairments of osteoarthritis,
degenerative disk disease of the cervical spine,
fibromyalgia, bilateral shoulder laxity, minimal
osteoarthritis of the lumbar spine and sacroiliac joints,
history of left knee arthroscopy, history of tick fever,
attention deficit hyperactivity disorder, mood
disorder/depression, adjustment disorder, and social anxiety.
(R. at 520). According to the ALJ, these impairments left
Kennedy with the residual functional capacity
(“RFC”) to perform light work, except that she
could occasionally climb ramps and stairs but never climb
ladders, ropes, and scaffolds; occasionally balance, stoop,
kneel, crouch, and crawl; occasionally work and/or reach
overhead; work in an environment free of concentrated
exposure to temperature extremes, humidity, and hazards
including no driving as part of work; perform work involving
simple, routine, repetitive tasks with incidental
interpersonal contact and simple, direct, and concrete
supervision. (R. at 522).
these impairments prevented Kennedy from returning to her
past relevant work (R. at 527), the ALJ heard testimony from
a vocational expert (“VE”) about whether there
were other jobs in the national economy that Kennedy could
perform. The VE testified that Kennedy's RFC would allow
her to work as a produce sorter, scaling machine operator,
and laminating machine offbearer. (R. at 528). Thus, the ALJ
held that Kennedy was not disabled. (R. at 528).
Kennedy argues the ALJ committed several errors, her primary
ground for reversal is that the ALJ's RFC determination
was based solely on the opinions of non-examining State
Agency reviewing physicians who did not consider the full
medical record in arriving at their medical conclusions.
Because the Court concludes that this argument has merit, it
need not address Kennedy's other grounds for reversal.
previously indicated, following remand in her first appeal,
on November 12, 2015, Kennedy amended her disability onset
date to June 1, 2011. Thereafter, almost all of the relevant
medical evidence was generated between November 1, 2011, and
September 30, 2015. (See R. at 364-507, 843-1253).
record contains no opinion from a treating or examining
physician discussing the effect of Kennedy's physical
impairments on her ability to work. Rather than having
Kennedy seen by a consulting physician, the ALJ gave
substantial weight to the opinions of non-examining reviewing
physicians. (R. at 525). The non-examining physicians
rendered their respective opinions on August 16,
2011, and October 12, 2011 (R. at 314, 363),
well before most of the relevant medical evidence
was generated. As a result, the most recent medical record
reviewed by either of the reviewing physicians was August 9,
2011. (R. at 324-27). Thus, in formulating their medical
opinions, which the ALJ relied on to support his RFC
determination, the reviewing physicians did not
consider any of ...