The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KELLI KELLY )
)
Plaintiff, )
)
v. ) Case No.: 4:20-cv-1245-LCB
)
SOCIAL SECURITY )
ADMINISTRATION, )
COMMISSIONER )
Defendant.
MEMORANDUM OPINION AND ORDER
On August 24, 2020, Kelli Kelly filed a complaint seeking judicial review of
an adverse final decision of the Commissioner of the Social Security Administration
(“the Commissioner”) pursuant to 42 U.S.C. § 405(g). (Doc. 1). The parties have
fully briefed the case, and it is now ripe for review. For the following reasons, the
Commissioner’s final decision is due to be reversed and the case remanded for
further proceedings.
I. Background
On July 3, 2018, Kelly protectively filed a Title II application for a period of
disability and disability insurance benefits. She also protectively filed a Title XVI
application for supplemental security income on the same day. In her application,
Kelly alleged disability beginning February 13, 2018. After her claims were initially
denied on November 9, 2018, Kelly requested a hearing before an Administrative
Law Judge (“ALJ”). After reviewing Kelly’s earnings record, the ALJ determined
that Kelly had acquired sufficient quarters of coverage to remain insured through
December 31, 2022. Thus, the relevant inquiry was whether Kelly was disabled
between her alleged onset date and December 31, 2022.
Kelly, represented by counsel, appeared at the hearing on October 25, 2019.
The ALJ heard testimony from Kelly and from Lisa Atkinson, a Vocational Expert
(“VE”). After hearing the testimony and considering Kelly’s medical records, the
ALJ issued an unfavorable decision on November 12, 2019. The Commissioner’s
decision became final when the Appeals Council denied Kelly’s request for review.
This lawsuit followed.
II. The ALJ’s Analysis
After the hearing, the ALJ issued a written opinion explaining his decision.
(Tr. 15-25).1 In issuing his decision, the ALJ followed the five-step evaluation
process set out by the Social Security Administration. 20 CFR 416.920(a). The ALJ
follows the steps in order and, if it is determined that the claimant is or is not disabled
at a particular step of the evaluation process, the ALJ will not proceed to the next
step.
1 References to “Tr” denote the page numbers appearing on the transcript prepared by the
Commissioner and submitted with her Answer. See (Doc. 7).
The first step of the five-step analysis requires the ALJ to determine whether
the claimant is engaging in substantial gainful activity, which is defined as work
involving significant physical or mental activities usually done for pay or profit. If
a claimant is engaged in substantial gainful activity, she is not disabled, and the
inquiry stops. Otherwise, the ALJ will proceed to step two. In the present case, the
ALJ found that Kelly had not engaged in substantial gainful activity since February
13, 2018, her alleged onset date. (Tr. at 17). Accordingly, the ALJ moved on to the
second step.
At step two, ALJs must determine whether the claimant has a medically
determinable impairment that is “severe” or a combination of impairments that is
“severe.” 20 CFR 416.920(c). An impairment is severe if it “significantly limits [a
claimant’s] physical or mental ability to do basic work activities….” Id. If a
claimant does not have a severe impairment, she is not disabled, and the inquiry
ends. Here, the ALJ found that Kelly had the following severe impairments:
neurofibroma, status-post thigh mass extraction, foot drop, and neuropathy. (Tr. at
18). The ALJ found that Kelly’s carpal-tunnel syndrome, bipolar disorder, and
anxiety were not severe. (Tr. at 18-19).
At the third step, an ALJ determines whether the claimant’s impairments or
combination thereof are of a severity to meet or medically equal the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix I. If the claimant’s
impairment or impairments meet or equal a listed impairment, then the claimant is
disabled, and the evaluation ends. Otherwise, the ALJ proceeds to the next step. In
this case, the ALJ found that Kelly’s impairments did not meet or equal any of the
listed criteria and, therefore, proceeded to step four. (Tr. p. 19).
Step four of the evaluation requires an ALJ to determine the claimant’s residual
functional capacity (“RFC”), and whether she has the RFC to perform the
requirements of any past relevant work. 20 CFR 416.920(f). The term “past relevant
work” means work performed within the last 15 years prior to the alleged onset date.
If a claimant has the RFC to perform past relevant work, she is not disabled, and the
evaluation stops. Otherwise, the evaluation proceeds to the final step. In this case,
the ALJ found that Kelly did not have the RFC to perform her past relevant work as
a Certified Nursing Assistant. Therefore, he proceeded to the final step of the
evaluation process.
At the final step, the ALJ must consider whether the claimant is able to do any
other work considering her RFC, age, education, and work experience. If a claimant
can do other work, she is not disabled; if not, she is disabled. According to the ALJ,
Kelly had the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except she can only stand and walk up to two hours in an eight-hour
day, can occasionally perform postural maneuvers, never climb ladders,
kneel, or crawl, and should avoid all industrial hazards such as
unprotected heights and moving machine parts, and operation of motor
vehicles.
(Tr. 19-20). After hearing testimony from the VE, the ALJ determined that there
were jobs existing in significant numbers in the national economy that Kelly would
be able to perform given her RFC, age,2 education, and work experience.
Specifically, the ALJ opined that Kelly could perform the work of an order clerk, a
parimutuel ticket checker, or a sorter. (Tr. 24). Therefore, the ALJ concluded Kelly
was not disabled as defined by the Social Security Administration.
III. Standard of Review
The Court must determine whether the Commissioner’s decision is supported
by substantial evidence and whether the correct legal standards were applied.
Winschel v. Comm'r of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (internal
citation and quotation marks omitted). “This limited review precludes deciding the
facts anew, making credibility determinations, or re-weighing the evidence.” Moore
v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Thus, while the Court must
scrutinize the record as a whole, the Court must affirm if the decision is supported
by substantial evidence, even if the evidence preponderates against the
2 Kelly was 34 years old, which is defined as a younger individual age 18-49, on the alleged
disability onset date. 20 CFR §§ 404.1563 and 416.963.
Commissioner’s findings. Henry v. Comm'r of Soc. Sec., 802 F.3d 1264 (11th Cir.
2015); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
In considering a claimant's subjective testimony, an ALJ must first determine
whether the claimant has “evidence of an underlying medical condition.” Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); see also 20 C.F.R. § 404.1529. Once
a claimant shows an underlying medical condition, she must show either: (1)
“objective medical evidence that confirms the severity of the alleged pain arising
from that condition,” or (2) “that the objectively determined medical condition is of
such a severity that it can be reasonably expected to give rise to the alleged pain.”
Holt, 921 F.2d at 1223 (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)).
The ALJ must also consider symptoms without objective medical support if
the claimant alleges these symptoms during the proceedings. 20 C.F.R. §
404.1529(c)(3). Specifically, the ALJ must consider the claimant's subjective
testimony regarding the “effectiveness and side effects of any medications.” Walker
v. Comm'r of Soc. Sec., 404 F. App'x 362, (11th Cir. 2010) (citing 20 C.F.R. §§
404.1529(c)(3)(iv); 416.929(c)(3)(iv) ). The ALJ fails to consider the side effects of
medications when he does not (1) elicit testimony about the side effects and (2) make
a finding about “the effect of ... prescribed medications upon [the claimant's] ability
to work.” Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981).
If an ALJ discredits a claimant's subjective testimony, he must articulate his
reasons and substantial evidence must support those reasons. Brown v. Sullivan, 921
F.2d 1233, 1236 (11th Cir. 1991).
IV. Kelly’s Arguments
In her brief, Kelly argues that the ALJ failed to adequately consider her
testimony concerning the side effects of her medications. (Doc. 9 at 32). Kelly
correctly noted that the ALJ made a finding that “[i]n order to alleviate the symptoms
of her impairments, the claimant asserted that she has taken several medications, and
she reported sleepiness and grogginess as side effects of her mental medications.”
(Tr. at 20). According to Kelly, the ALJ did not go on to consider how the
medications affected her ability to work. The Court agrees.
During the hearing, Kelly’s attorney asked if she experiences side effects from
any of her medications. Kelly replied, “Yes. The Zoloft makes me very sleepy and
kind of groggy like I’m dysfunctional.” (Tr. at 47). She reported that she takes the
medication once every morning as directed. Id. Aside from the lone sentence quoted
above, the ALJ did not specifically mention this issue again.
An ALJ must, at the very least, make “a finding on appellant's claim regarding
side effects, making it possible for a reviewing tribunal to know that the claim was
not entirely ignored.” Cowart, 662 F.2d at 737, (quoting Figueroa v. Secretary of
HEW, 585 F.2d 551, 554 (1st Cir. 1978)). In Cowart, the claimant testified that her
medication caused her to be “kind of zonked most of the time.” Cowart, 662 F.2d
at 737. The Eleventh Circuit held that it was “conceivable that the side effects of
medication could render a claimant disabled or at least contribute to a disability.”
Id. But, the court held, the ALJ's failure to make any findings regarding the
claimant's testimony was reversible error. See id.
Here, the ALJ did not make any findings or conduct any analysis regarding
Kelly’s testimony concerning the side effects of her medication. Though the ALJ
acknowledged her testimony about the side effects towards the beginning of his
decision, he never mentioned it again. In reviewing the entirety of the record, the
Court notes that the side effects of Kelly’s Zoloft were not the crux of her argument
as to why she is unable to work. Rather, Kelly’s main contention was that she was
disabled as the result of a malignant tumor that was removed from a nerve in her leg.
The Commissioner argues in a footnote that the ALJ was not required to further
investigate the side effects of Kelly’s medications because she “did not mention side
effects from [her] medications as a basis for disability when [s]he applied for SSI or
at [her] hearing.” (Doc. 10 at 15, n. 6). However, this is false. As noted above,
Kelly did testify at her hearing that one of her medications made her sleepy, groggy,
and dysfunctional. (Tr. at 47). Thus, Kelly raised the question, and the ALJ was
required to make findings on the issue. His failure to do so prevents this Court from
determining whether Kelly’s testimony on this issue was anything but “entirely
ignored.” See Cowart, 662 F. 2d at 737. The Commissioner did not point to any
portion of the ALJ’s decision that would change this conclusion.
Kelly also asserted that the ALJ failed to give proper weight to the opinion of
one of her physicians. However, because the Court is reversing the Commissioner’
decision and remanding for further proceedings based on the issue discussed above,
it pretermits any discussion of that issue at this time.
V. Conclusion
For the foregoing reasons, it is ordered that the Commissioner’s final decision
is REVERSED, and this case is REMANDED for further proceedings consistent
with this Memorandum Opinion and Order. A final judgment will be entered
separately.
DONE and ORDERED Match 17, 2022.
th
LILES C. BURKE
UNITED STATES DISTRICT JUDGE