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Kiely v. Berryhill

United States District Court, D. Minnesota

July 24, 2018

Laurie Kiely, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security, Defendant.

          Karl E. Osterhout and Edward C. Olson, for Plaintiff.

          Pamela A. Marentette, for Defendant.



         Plaintiff 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 and 19.

         For the reasons set forth below, the Commissioner's decision is AFFIRMED and the case is DISMISSED WITH PREJUDICE.


         On June 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.


         A. Background

         Kiely 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.

         B. Administrative Hearing

         Kiely 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.

         Dr. 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.

         C. Medical Evidence

         1. Physical Impairments

         On 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.

         On 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.

         On 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.

         On 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.

         On 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 ...

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