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Kelly v. Saul

United States District Court, D. New Hampshire

August 1, 2019

Crystal D. Kelly
v.
Andrew Saul, Commissioner, Social Security Administration

          Alexandra M. Jackson, Esq. Luis A. Pere, Esq.

          PAUL BARBADORO UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Crystal 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 perform.

         II. BACKGROUND

         A. Kelly's History

         Kelly 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. Id.

         B. Denial of Kelly's Applications

         Kelly's 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.

         The 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.

         The ALJ 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.

         In 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.

         The ALJ 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[1] 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 ...

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