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Kennedy v. Berryhill

United States District Court, E.D. Arkansas, Little Rock Division

October 12, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security Administration DEFENDANT


         I. Procedures for Filing Objections:

         The 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.

         II. Introduction:

         Laura 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).

         After 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).

         On 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.

         For the reasons stated below, the Court recommends reversing and remanding the Commissioner's decision.

         III. The Commissioner's Decision:

         In his 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).

         Because 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).

         IV. Discussion:

         While 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.

         As 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).

         The 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 ...

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