Kinney v. Comm'r of Soc. Sec.
| Docket Number | 3:22-CV-01125-JRK |
| Decision Date | 12 June 2023 |
| Parties | KRISTIN KINNEY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant, |
| Court | U.S. District Court — Northern District of Ohio |
REPORT AND RECOMMENDATION
Plaintiff Kristin Kinney (“Ms. Kinney”) seeks judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for disability insurance benefits (“DIB”). (ECF Doc. 1). The District Court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). Pursuant to Local Civil Rule 72.2, this matter was referred to a magistrate judge for preparation of a Report and Recommendation, and it was subsequently reassigned to me pursuant to General Order No. 2022-14. For the reasons set forth below, I RECOMMEND that the Court AFFIRM the Commissioner's final decision.
Ms. Kinney was previously foundto be not disabled in determinations dated October 31, 2014, and January 17, 2017. (Tr. 13, 78-87, 89).[1] On October 30, 2020, Ms. Kinney filed an application for DIB, alleging a disability onset date of November 26, 2015. (Tr. 13, 244-45). The Social Security Administration (“SSA”) denied Ms. Kinney's application initially and upon reconsideration. (Tr. 133-36, 154-63). Ms. Kinney requested a hearing before an administrative law judge (“ALJ”). (Tr. 164-65). On January 4, 2022, the ALJ held a telephonic hearing due to the COVID-19 pandemic, at which Ms. Kinney was represented by counsel. (Tr. 35-77). Ms. Kinney and a vocational expert (“VE”) testified at the hearing. (Tr. 41-76).
On February 10, 2022, the ALJ issued a written decision finding that Ms. Kinney was not disabled. (Tr. 10-34). The ALJ's decision became final on May 2, 2022, when the Appeals Council declined further review. (Tr. 1).
On June 27, 2022, Ms. Kinney filed her Complaint, challenging the Commissioner's final decision. (ECF Doc. 1). Ms. Kinney asserts the following assignment of error:
(1) The ALJ failed to properly account for all of the opinions provided by the state agency mental health reviewing experts despite finding their opinions to be persuasive.
(ECF Doc. 7, PageID#4313).
Ms. Kinney was born in 1973, and she was 42 years old at the time of her alleged disability onset date. (See Tr. 37). Ms. Kinney lives with a roommate, and she has one adult daughter. (Tr. 41, 44). She has a GED. (Tr. 45). At the time of the hearing, Ms. Kinney had a driver's license. (Tr. 67). Her past relevant work was part-time employment as a restaurant server, cashier, and brand ambassador. (Tr. 261).
Ms. Kinney testified that she experiences depression and moodiness as a side effect of her post-breast cancer hormone therapy. (Tr. 54). She stated that she takes medication for her mental health that is helpful for her “some days.” (Id.). She elaborated that some days are “like a rollercoaster” and that “it depends on the day..,[s]ometimes it'll just come out of nowhere.” (Id.). At times due to her depression, Ms. Kinney testified that she would not be able to take care of her personal hygiene. (See Tr. 58-59). She also reported experiencing anxiety and being easily irritable when interacting with others. (Tr. 65). She also testified that she experiences one panic attack per week, daily crying spells, and weekly flashbacks; has terrible memory; and struggles to maintain enough attention to follow a television program. (Tr. 65-66).
Ms. Kinney reported that she struggles with falling and staying asleep. (Tr. 66). As a result, Ms. Kinney stated that she naps daily for approximately an hour and a half to two hours. (Id.). She testified that she experiences suicidal thoughts. (Id.). In April 2021, she attempted suicide by deliberately crashing her car. (Id.). Ms. Kinney further testified that she has days where she experiences “paralyzing” lack of motivation. (Id.). When asked how often this happens, she explained that she has these unmotivated days “more often than [she does not] have them.” (Id.).
She discussed how she has a history of substance abuse, including a relapse of cocaine use in 2020. (Tr. 57-58). She testified that she resided with a roommate in an apartment that was part of a treatment facility. (Tr. 41-42). She reported attending treatment for four hours per day. (Tr. 62). As part of her treatment, Ms. Kinney worked part-time as a peer support worker 15 hours per week. (Tr. 44).
The vocational expert (“VE”) testified that Ms. Kinney's past relevant work was as a server (DOT#311.477-030); telephone sales representative (DOT#299.357-014); office machines sales representative (DOT#257.357-034); and business services sales agent (DOT#251.357-010). (Tr. 68-69). The ALJ asked the VE to hypothetically consider a person with Ms. Kinney's age, education, and experience at a light exertional capacity, except that she can understand, remember, and carry out simple instructions; perform simple, routine, and repetitive tasks, but not at a production rate pace, such as an assembly line; can tolerate few changes in the workplace;[3] and can adapt to routine changes in the workplace that are infrequent and easily explained. (Tr. 6970).[4] The VE opined that this individual could not perform Ms. Kinney's past relevant work but could perform work as a cashier (DOT#211.462-010), cleaner (DOT#323.687-014); and routing clerk (DOT#222.687-022). (Tr. 70).
The VE opined that ordinary breaks would be a 30-minute lunch, one 15-minute break in the morning, and one 15-minute break in the afternoon. (Tr. 72). The VE stated that the on-task requirement for competitive work would be 85%. (Id.). The VE indicated that her testimony was consistent with the information in the Dictionary of Occupational Titles and the Selected Characteristics of Occupations. (Id.). However, the VE also indicated that she supplemented those publications with information regarding absenteeism, off-task behavior, lying down on the job, and specific limitations with fingering. (Tr. 72-73). Ms. Kinney's attorney asked the VE whether an individual would require an accommodation from her employer if she requires flexibility to adjust the time and duration of the lunch and break periods. (Tr. 73). The VE opined that this would require an accommodation. (Id.).
On January 12, 2021, Dr. Bruening (a state agency psychologist) opined at the initial level that Ms. Kinney had mild limitations in understanding, remembering, or applying information and interacting with others, and moderate limitations in concentrating, persisting, or maintain pace and adapting or managing oneself. (Tr. 98-99). Dr. Bruening further found that Ms. Kinney could understand and remember simple and detailed instructions requiring initial learning periods, usually 60 days or less; carry out simple instructions for two-hour segments over an eight-hour workday, five days per week; tolerate contact with supervisors and co-workers in a public setting; and adapt to the expected and familiar changes and pressures of a routine work setting. (Tr. 10306).
On September 3, 2021, Dr. Dutt (a state agency psychologist) opined at the reconsideration level that Ms. Kinney had mild limitations in understanding, remembering, or applying information and interacting with others. (Tr. 122). Dr. Dutt also opined that Ms. Kinney had moderate limitations in concentrating, persisting, or maintaining pace, and adapting or managing oneself. (Id.). Dr. Dutt opined that given Ms. Kinney's concerns with concentration, mood, and worrying, Ms. Kinney will experience difficulty responding to sudden and immediate changes in the work setting. (Tr. 124). Dr. Dutt explained that Ms. Kinney will adapt and manage herself in a structured and predictable work setting, where major changes are explained to her and she is given time to adjust to new expectations. (Id.). With respect to Ms. Kinney's sustained concentration and persistence limitations, Dr. Dutt further found that Ms. Kinney's psychological concerns would interfere with her ability to always be present in the moment. (Id.). Dr. Dutt stated that the variability in her psychological symptoms will impact her ability to complete a normal workday/work week, but not to the point of causing excessive disruptions. (Id.). Thus, Dr. Dutt opined that Ms. Kinney retained the ability to complete tasks without a sustained production pace or stringent daily quota and in a setting where there is some flexibility as to the scheduling of breaks. (Id.).
Ms. Kinney alleged disability beginning November 26, 2015, due to a combination of impairments, including major depression with anxiety and attention deficit hyperactivity disorder (“ADHD”). (Tr. 260). The ALJ summarized the medical evidence regarding these impairments as follows:
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