United States District Court, D. Minnesota
E. Osterhout and Edward C. Olson, for Plaintiff.
A. Marentette, for Defendant.
FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE
Laurie Ann Kiely seeks judicial review of the final decision
of the Acting Commissioner (“Commissioner”) of
the Social Security Administration (“SSA”), who
denied her application for disability insurance benefits and
supplemental security income under Title II and Title XVI of
the Social Security Act. This Court has jurisdiction over the
claim pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), 28 § U.S.C. 636(c), and Rule 73 of the
Federal Rules of Civil Procedure. The parties have filed
cross motions for summary judgment. See ECF Nos. 12
reasons set forth below, the Commissioner's decision is
AFFIRMED and the case is DISMISSED
18, 2014, Kiely applied for and completed an application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act, and on September 4, 2014,
Kiely applied for supplemental security income
(“SSI”) under Title XVI of the Social Security
Act. Administrative Record [hereinafter “AR”]
201, 205, ECF No. 11. Kiely alleges that her disability began
on July 31, 2013. AR 201. Kiely's DIB and SSI
applications were denied initially on October 13, 2014, and
upon reconsideration on February 17, 2015. AR 141, 150. On
May 25, 2016, an administrative hearing was held before
Administrative Law Judge (“ALJ”) Roger Thomas. AR
36-70. On June 27, 2016, the ALJ found Kiely was not disabled
and denied Kiely's DIB and SSI applications. AR 29. On
June 16, 2017, the SSA Appeals Council denied Kiely's
request for review, rendering the ALJ's decision final
for purposes of judicial review. AR 1-6; see 20
C.F.R. § 404.981.6. On July 28, 2017, Kiely commenced
this civil action seeking reversal of the Commissioner's
decision, or in the alternative, remand for further
proceedings. ECF No. 12.
was fifty-four years old on her alleged disability onset
date. AR 28. Kiely initially claimed that the following
severe impairments limit her ability to secure and maintain
competitive employment: major depression, anxiety, migraines,
and sleep apnea. AR 241-42. Kiely later claimed she suffered
from additional severe impairments: osteoarthritis in her
right hand and gastroesophageal reflux disease
(“GERD”). AR 292. Kiely's relevant past work
includes employment as a kitchen worker, maintenance worker,
sandwich maker and fast food worker, school bus driver, and
housekeeping cleaner. AR 255, 346.
testified at the May 25, 2016, administrative hearing. AR
41-58. Kiely was represented by a non-attorney
representative. AR 39. Her representative made no objection
to the admission of exhibits into the record and was not
aware of any other documents that needed to be added to her
file. Id. Her representative alleged that she
suffered from the following severe impairments: depressive
disorder, generalized anxiety disorder, personality disorder,
infrequent migraines, sleep apnea, osteoarthritis of her
right hand, obesity, and right foot pain in connection with
her bunionectomy. AR 40-41. Kiely testified that her
sleep-aid prescription made her groggy in the morning. AR 46.
She testified that she took medication for depression, and
that her doctor had successfully adjusted her dosage to
improve her concentration and focus. AR 51. Kiely testified
that she likes to work and keep busy, but that it is
challenging to find work at her age, and her depression and
anxiety make work challenging at times. AR 57.
Karen Butler testified as a neutral medical expert. AR 58-62.
Butler stated that although Kiely's global assessment of
functioning (“GAF”) score was low, her
impairments did not meet or medically equal any of the
relevant listings. AR 61. Butler noted that she would impose
certain limitations on Kiely's work environment. AR 62.
Butler opined that Kiely could complete unskilled to
semiskilled work involving brief and superficial contact with
others, but in which serving the public should not be part of
her job. Id.
April 15, 2013, Kiely visited her primary care physician,
Scott Waters, D.O., and was treated for hypertension,
hyperlipidemia, headaches, and post-menopausal bleeding. AR
350. Waters noted that Kiely's gait appeared normal and
her judgment appeared intact. Id. Waters referred
Kiely for subsequent lab tests and blood work. Id.
November 27, 2013, Kiely again presented to Waters. AR 353.
During the visit, Waters noted Kiely's current
medications and opined that her body mass index was high, and
that her judgment appeared to be intact. Id. Waters
referred Kiely to a sleep specialist to treat her sleep
apnea. AR 354.
March 26, 2014, Joan Fox, M.D., performed nocturnal
polysomnography and diagnosed Kiely with obstructive sleep
apnea. AR 491. Fox prescribed Kiely a CPAP machine and
instructed her on how to use the device. Id. On
April 23, 2014, Kiely was diagnosed with “severe
obstructive sleep apnea” after a second nocturnal
polysomnography was performed. AR 465-66. After using her
CPAP for several months, Kiely stated that she was rested and
feeling much better. AR 630.
October 7, 2014, Charles Grant, M.D., performed a SSA
consultative examination. AR 100. Grant noted that Kiely
suffered from obstructive sleep apnea, depressive disorder,
personality disorder, and anxiety. AR 90. Grant opined that
Kiely could not preform her past relevant work, but could
perform other medium exertion level jobs in the national
economy. AR 99.
August 4, 2014, Kiely was treated by Timothy Felton, M.D. AR
622. Kiely told Felton that a bunion on her right foot was
hurting and getting worse. Id. On October 17, 2014,
Felton performed a bunionectomy of Kiely's right foot. AR
626. Felton's post-operative notes indicate that Kiely
was “doing well” after surgery. AR 627. On
November 12, 2014, Felton informed ...