UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Crystal D. Kelly

v. Case No. 18-cv-662-PB Opinion No.

Andrew Saul, Commissioner, Social Security Administration

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,

1 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.

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

(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

(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.

(citing

(d), 404.1525,

404.1526, 416.920(d), 416.925, 416.926). Tr. 13–14.

2 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

3 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 as a stool, but I can’t give a best answer for that question, unfortunately.

Tr. 71.

Three days after the hearing ended, Kelly’s attorney

submitted an affidavit from VE David Meuse that attempted to

address the question the first VE was unable to answer. Tr. 31.

Meuse’s affidavit states that a person of Kelly’s weight “would

be unable to perform any of the jobs proposed by the vocational

witness without the accommodation of a special chair that is

both large enough to fit the person and also capable of

supporting that person’s weight safely.” Tr. 32.

The ALJ refused to consider the affidavit. Tr. 10. The

only explanation he offered for his decision was that the

“affidavit was not timely submitted and that the record was

closed at the conclusion of the hearing.”

1 A bariatric chair is a special oversize chair required for individuals who, because of their size, cannot use standard chairs. See Higgins v. Comm’r of Soc. Sec.,

(8th Cir. 2018).

4 The appeals council later denied Kelly’s request for review

of the ALJ’s decision, rendering his decision the final decision

of the Commissioner.

III. STANDARD OF REVIEW

Pursuant to

(g), I have the authority to

review the pleadings submitted by the parties and the

administrative record, and to enter a judgment affirming,

modifying, or reversing the “final decision” of the

Commissioner. That review is limited, however, “to determining

whether the ALJ used the proper legal standards and found facts

upon the proper quantum of evidence.” Ward v. Comm’r of Soc.

Sec.,

(1st Cir. 2000). I will uphold the

decision “so long as it is supported by substantial evidence.”

Rodriguez Pagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1987)(per curiam)(citation omitted). Substantial

evidence is “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales,

(1971)(citation omitted).

If the substantial evidence standard is met, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” See Irlanda Ortiz v.

Sec’y of Health & Human Servs.,

(1st Cir.

1991). Findings are not conclusive, however, if the ALJ derived

5 his findings by “ignoring evidence, misapplying the law, or

judging matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999)(per curiam)(citation omitted). The

ALJ may not draw “his own conclusions from the raw medical

data.” See Scanlon v. Colvin,

, WL 1125354 *2

(D.N.H. Mar. 20, 2014). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. It is the role

of the ALJ, not the court, to resolve conflicts in the evidence.

IV. ANALYSIS

The ALJ based his determination that Kelly was not disabled

on alternative holdings. He first concluded that Kelly was not

disabled at step four because her RFC permitted her to perform

the type of light work that she had undertaken in the past. In

the alternative, he concluded that Kelly was not disabled at

step five because jobs existed in the national economy that she

was capable of performing even if she could only do sedentary

work. As I explain below, the ALJ’s step four determination was

improper because the ALJ did not adequately support his

conclusion that Kelly could perform light work, and his step

five determination cannot stand because the ALJ made his

determination without considering Kelly’s post-hearing evidence.

6 A. Step Four

The ALJ found at step four that Kelly could perform light

work, limited to sitting for up to six hours and standing or

walking for up to four hours per workday. See Tr. 14. This

conclusion is at odds with state agency consultant Dr. Jaffe’s

contrary conclusion that Kelly’s maximum sustained work

capability is sedentary work. Tr. 85, 95.

In making an RFC determination, an ALJ “must provide a

clear explanation for [its] evidentiary basis and reasons for

rejecting medical source opinions.” Hynes v. Barnhart,

(D.N.H. 2004). Here, the ALJ did not address

Dr. Jaffe’s competing RFC determination, despite finding his

opinion “persuasive” and giving it “great weight.” See Tr. 17.

In fact, he did not explain his decision to disregard Dr.

Jaffe’s opinion on this point at all. Nor did he refer to any

other medical evidence in the record that justifies his RFC

determination. Because the ALJ failed to support his step four

determination with substantial evidence, the Commissioner cannot

rely on it to support a finding that Kelly is not disabled. 2

2 The Commissioner does not defend these errors, providing a single conclusory clause in protest. But an argument presented in cursory fashion is considered waived. See Rodriguez v. Municipality of San Juan,

(1st Cir. 2011). In any event, Putnam v. Astrue,

,

(D.N.H. Aug. 1, 2011), the single case the Commissioner cites, is inapposite. The issue in Putnam was whether the ALJ’s RFC determination was incompatible with light work, not whether, as

7 B. Step Five

I also reject the ALJ’s step five determination because he

improperly refused to consider Kelly’s post-hearing affidavit.

As a general matter, an ALJ always has discretion to

“reopen the hearing at any time before he or she mails a notice

of the decision in order to receive new and material evidence.”

. He cannot categorically refuse a request

to consider evidence simply because it is submitted after the

hearing has concluded. This is especially true when post-

hearing evidence is offered in response to VE testimony. As

Social Security Ruling 96-9p recognizes, “[w]henever a VE is

used, the [claimant] has the right to receive and respond to VE

evidence prior to the issuance of a decision.” SSR 96-9p n.8.,

, at *9 (July 2, 1996). Because such testimony

often “cannot be anticipated prior to hearing,” it will often

have to be submitted after the hearing has been completed.

McClesky v. Astrue,

(7th Cir. 2010)(citation

omitted). Where such evidence is material to an issue under

here, the ALJ’s RFC determination was inconsistent with a physician’s RFC determination, whose opinion is otherwise given “great weight.” Compare

(finding that “claimant’s inability to perform the full range of light work does not compel the conclusion that he is only capable of less physically demanding [] work”), with Tr. 17, 85 (determining Kelly is capable of light work despite physician’s conclusion of sedentary work).

8 consideration, as it is here, an ALJ cannot refuse to consider

it simply because it is submitted after the hearing concludes.

Here, the ALJ based his step five determination on VE

testimony that jobs existed in the national economy that Kelly

could perform. Because, however, the VE who testified at the

hearing could not say whether the jobs at issue required a

bariatric chair for someone of Kelly’s weight, the ALJ was in no

position to determine that those jobs were available to a person

such as Kelly who required a bariatric chair. The Meuse

affidavit directly addressed this issue. Thus, the ALJ was

obligated to consider it before he issued his decision.

The Commissioner insists that even if the ALJ erred in

excluding the affidavit, the error was harmless. Because the

affidavit does not refer to Kelly specifically, he argues, she

failed to show a need for a bariatric chair. The Commissioner

relies on Maietta v. Berryhill, No. 2:17-cv-00054-NT,

(D. Me. Oct. 2, 2017), to support his position. That

case is inapposite. In Maietta, the court concluded that a

claimant failed to demonstrate “his asserted need for either a

bariatric or larger chair.” See

, at *3. The

“lack of a factual predicate” the court relied on in Maietta is

supplied in this case by the VE Meuse’s affidavit. Cf.

The Meuse affidavit states that “a person weighing 350 to

415 pounds or more would be unable to perform any of the jobs

9 proposed by the vocational witness without the accommodation of

a special chair.” Tr. 32. At the time of her hearing, Kelly

weighed 419 pounds. Tr. 45. Because Kelly is plainly a member

of the class of persons that require a bariatric chair according

to VE Meuse, it follows as a matter of basic logic that his

affidavit directly supports Kelly’s claim that she requires a

bariatric chair to perform the jobs on which the ALJ’s step five

decision is based. Therefore, his failure to consider the

affidavit was not harmless.

V. CONCLUSION

Pursuant to sentence four of

(g), I deny the

Commissioner’s motion to affirm (Doc. No. 10) and grant Kelly’s

motion for an order reversing the Commissioner’s decision (Doc.

No. 8). The case is remanded for further proceedings in

accordance with this memorandum and order. The clerk is

directed to enter judgment accordingly and close the case.

SO ORDERED.

/s/ Paul Barbadoro__________ Paul Barbadoro United States District Judge August 1, 2019

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

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