United States District Court, D. New Hampshire
Crystal D. Kelly
Andrew Saul, Commissioner, Social Security Administration
Alexandra M. Jackson, Esq. Luis A. Pere, Esq.
BARBADORO UNITED STATES DISTRICT JUDGE
Kelly challenges the Social Security Administration's
denial of her application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). The Commissioner, in turn, seeks to have
the ruling affirmed. I conclude that the Administrative Law
Judge (“ALJ”) committed two legal errors. First,
the ALJ did not adequately support his conclusion that
Kelly's residual functional capacity (“RFC”)
allowed her to return to her past work. Second, the ALJ's
failure to admit post-hearing evidence improperly affected
his alternative finding that Kelly is not disabled because
other jobs exist in the national economy that she could
is 39 years old. Tr. 174. She previously worked in
housekeeping, the laundry, and at the front desk of a hotel.
Tr. 189-90, 207. She allegedly became disabled on May 14,
2014, because of a slipped disc, a torn tendon in her left
knee, osteoarthritis in both knees, pain in her left elbow,
and obesity. Tr. 188-89. Kelly briefly attempted to return to
work after her disability onset date, but she lasted only
about a week because she “couldn't keep up”
with her coworkers. Tr. 50, 207. She has not worked since.
Denial of Kelly's Applications
applications for DIB and SSI were initially denied on
November 21, 2016. Tr. 103-08. She requested a hearing before
an ALJ, which was held on October 3, 2017. Tr. 109-10, 37-76.
On October 18, 2017, the ALJ notified Kelly of his
determination that she was not disabled. Tr. 20.
ALJ's conclusion followed from his application of the
required five-step, sequential analysis. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step
one, the ALJ found that Kelly had not engaged in any
substantial gainful activity since May 15, 2014, her alleged
disability onset date. Tr. 12- 13. The ALJ determined at step
two that Kelly was severely impaired by morbid obesity,
osteoarthritis of bilateral knees, and degenerative changes
to her left knee. Tr. 13 (citing 20 C.F.R. §§
404.1520(c), 416.920(c)). At step three, the ALJ found that
Kelly's impairments did not meet or medically equal one
of the impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. Id. (citing 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926). Tr. 13-14.
determined at step four that Kelly's RFC allowed her to
perform light work, except that she could sit for up to six
hours per day and stand and/or walk for up to four hours per
day. Tr. 14. He then concluded that Kelly was not disabled
because she could return to her past work as a hotel
housekeeper. Tr. 17-18.
making his RFC determination, the ALJ claimed that he had
given “great weight” to the opinion of state
agency consultant Dr. Jonathan Jaffe even though Dr. Jaffe
had concluded that Kelly was capable of performing only
sedentary work. Tr. 17, 85, 95. The ALJ did not explain the
apparent discrepancy between his RFC determination and Dr.
Jaffe's contrary opinion.
alternatively determined that Kelly was not disabled at step
five because jobs existed in the national economy that she
could perform even if she were limited to sedentary work. Tr.
18. In reaching this conclusion, the ALJ relied on testimony
from a vocational expert (“VE”), who responded to
the ALJ's hypothetical questions by identifying several
sedentary jobs that Kelly could perform. Tr. 19. When
Kelly's attorney questioned the VE about whether a person
of Kelly's weight would require a bariatric
chair to perform the jobs that the VE had
identified, the VE responded by stating:
VE: Well, from my professional experience, I can't give a
frequent, that's, I can't give an answer of what the,
I guess, requirements would be for a chair or anything like
that. So, unfortunately, I don't feel comfortable giving
the best answer for that question, but a lot of jobs that I
gave would be using such ...