Kropelnicki v. Kijakazi
| Decision Date | 05 September 2022 |
| Docket Number | Civil Action H-20-3377 |
| Parties | Kandice Marie Kropelnicki, Plaintiff, v. Kilolo Kijakazi,[1]Acting Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
MEMORANDUM AND RECOMMENDATION
Kandice Marie Kropelnicki appeals the Social Security Administration (SSA) Commissioner's final decision denying her application for social security benefits. ECF No. 1. Pending before the court is Plaintiff's Motion for Summary Judgment, ECF No. 18, and Defendant's Motion for Summary Judgment, ECF No. 22. These motions are before the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1). Having considered the motions, administrative record, and applicable law, the court recommends that the final decision of the Commissioner be affirmed.
1. Background and Procedural Posture
Kropelnicki applied for disability insurance benefits on January 19,2018 and supplemental security income on January 29,2018. See Tr. 169-70. The SSA denied Kropelnicki's applications on May 24, 2018. Id. On October 3, 2019, the applications were denied on reconsideration. Tr. 171-72. At Kropelnicki's request Administrative Law Judge (ALJ) Jessica Hodgson held a hearing on September 9, 2019, in Houston, Texas. Tr. 218, 104-44. The ALJ issued a decision on October 23, 2019, finding that Kropelnicki was disabled from February 7, 2017, through October 29, 2018, and not disabled from October 30, 2018 through the date of the decision. Tr. 28-44. On July 24, 2020, the Appeals Council denied Kropelnicki's request for review. Tr. 1-6. Kropelnicki timely appealed the ALJ's decision in this court when she filed a complaint and application to proceed in forma pauperis on July 12, 2021. See Kropelnicki, Jr. v. Comm'r of Soc. Sec., H-20-mc-2747, ECF No. 1 (S.D. Tex. Sept. 25, 2020).
Kropelnicki claimed that she became disabled on February 7, 2017. Tr. 169- 70. Kropelnicki was bom on April 24, 1983, and was thirty-four years old on the alleged disability onset date. Id. Kropelnicki has an education through the first year of college. Tr. 314. Kropelnicki has not worked since February 7, 2017. Tr. 114. Kropelnicki previously worked as an office manager, administrative aide, executive assistant, receptionist, nanny, and certified nursing assistant (CNA). Tr. 115-19. 2. Hearing
At the hearing on September 9, 2019, the ALJ heard testimony from Kropelnicki and a vocational expert (VE). Tr. 104-44. Kropelnicki was represented by an attorney. Tr. 106.
Kropelnicki testified that she had not performed any work for pay or profit since February 7,2017. Tr. 114. She had some self-employment in 2017 but clarified for the ALJ that, her jewelry making for friends was a hobby rather than gainful employment. Id. She previously worked as an office manager since 2014. Tr. 11516. In that position, Kropelnicki lifted twenty to twenty-five pounds, handled office supplies, and handled paperwork. Tr. 117. In 2012 and 2013, she worked as a receptionist. Tr. 117-18. In that position, she lifted fifty pounds, handled office supplies, filed paperwork, and handled phone calls. Tr. 118. In 2008 and 2009, Kropelnicki worked as a nanny for three children. Tr. 118. As a nanny, she lifted no more than twenty pounds, took the children to and from school activities, helped with housework, and helped the children with homework. Tr. 119. From 2002 to 2005, Kropelnicki worked as a CNA where she lifted around fifty pounds with assistance and worked with patients. Tr. 119-20.
Kropelnicki testified that she suffered back injuries in November 2007 and on December 6, 2016. Tr. 120. After her back injury in 2016, she suffered from leg numbness, continuous tingling in her feet, and an inability to bend down. Tr. 120 21. Kropelnicki testified that her legs would give out after walking about a block. Tr. 121. She could not stand for more than thirty minutes. Tr. 126. She also testified that after sitting for thirty to forty-five minutes she would experience shooting pain down her left leg. Tr. 121. She could not pick up more than five pounds without significant pain. Tr. 122. She also experienced numbness in her buttocks and lower back. Tr. 123. Kropelnicki testified that she favored her right side when walking to compensate for leg numbness. Tr. 122. She had to always wear shoes to provide cushion for her back. Tr. 126. She had difficulty dressing herself. Tr. 126-27.
Kropelnicki testified that she underwent a facet injection, a steroid injection, a stimulator implantation, removal of the implantation, and consideration for laser spine surgery. Tr. 122. She was on medication until surgery could be performed for her spinal problems and nerve pain. Tr. 123-24. She was unable to start physical therapy due to muscle constriction and incontinence from nerve pain. Tr. 123. Kropelnicki's incontinence caused her to have accidents two to three times a week, and she needed to use the restroom up to three or four times an hour. Tr. 124-25.
Kropelnicki testified that her mental health problems significantly affected her ability to work. Tr. 127. She experienced significant anxiety around ethnically Indian people after being raped and stalked in 2008. Tr. 127-28. She avoided going anywhere by herself and occasionally panicked in public places. Tr. 128-29. Kropelnicki further testified that she had concentration issues for which she had previously been prescribed Adderall. Tr. 130. She experienced feelings of depression and had a family history of bipolar disorder. Tr. 130-31. She was on three medications for her depression, and her symptoms had improved somewhat. Tr. 131.
Returning to Kropelnicki's past work, the VE testified that, under the Dictionary of Occupation Titles (DOT), her jobs would be classified as office manager, office receptionist, nanny, and CNA. Tr. 133.
The ALJ asked the VE what work a hypothetical individual of the same age, education, and vocational background as Kropelnicki could perform if they were limited to sedentary work; could lift ten pounds occasionally and less than ten pounds frequently; could sit for up to six hours in an eight-hour workday; must have the option to alternate between sitting and standing for three minutes after every twenty minutes of standing; could not stand or walk more than a total of two hours in an eight-hour workday; must have the option to sit for five minutes after every thirty minutes of standing or walking; could frequently use bilateral foot or hand controls; could frequently reach overhead bilaterally; could occasionally climb ramps or stairs, stoop, kneel, crouch, or crawl; could never climb ladders, ropes, or scaffolds; could occasionally balance; could occasionally be exposed to unprotected heights; could never be exposed to moving mechanical parts; could occasionally operate a motor vehicle; could occasionally be exposed to humidity, wetness, extreme cold, and vibration; could carry out simple, routine, and repetitive tasks but not at a production rate pace; and could frequently interact with supervisors, coworkers, and the public. Tr. 134-36.
The VE testified that such a person would not be able to do any of Kropelnicki's past relevant work. Tr. 136. The VE testified that such a person would be able to work as an order clerk, address clerk, and document preparer. Id. Those jobs were available in significant numbers nationally. Id. The VE testified that portions of his testimony related to the sit-or-stand options, overhead reaching, use of hand or foot controls, and social interaction were based on his education and experience. Tr. 136-37.
The ALJ altered her hypothetical to limit the individual to occasional bilateral reaching overhead and in all directions; occasionally using bilateral hand and foot controls; never using ramps or stairs; never being exposed to unprotected heights; and only having occasional contact with the public. Tr. 137. The VE testified that such an individual would no longer be able to work as an order clerk. Id. The VE testified that such a person would instead be able to work as a table worker, a job which exists in large numbers nationally. Tr. 138.
The ALJ further altered both of her hypotheticals to include a requirement that the hypothetical individual be allowed additional restroom breaks consisting of three to four times an hour for five minutes during two hours of the day on up to two days a week. Tr. 139-40. The VE testified that no jobs would remain due to that amount of off-task behavior. Tr. 140. The VE testified that a normal employer would tolerate up to ten percent of off-task time in a workday. Id. The VE testified that an employer would tolerate an additional break in the morning and afternoon for two to three minutes to maintain competitive employment. Tr. 141. The VE further testified that an individual who would need to miss two or more days of work per month would not be able to maintain competitive employment. Id. The VE testified that the sit-or-stand option would have no effect on employment at the sedentary level. Tr. 14142. Kropelnicki's attorney declined to cross-examine the VE. Tr. 142.
Kropelnicki's attorney stated that she believed Kropelnicki's incontinence issues would preclude any work in the national economy. Tr. 142. Kropelnicki testified that she had experienced incontinence since her back injury in December 2016. Tr. 143. The ALJ then closed the hearing. Tr. 143-44.
The ALJ issued her decision on October 23, 2019, finding that Kropelnicki was disabled from February 7, 2017, the alleged disability onset date, through October 29, 2018, and not disabled from October 29, 2018, through the date of her decision. Tr. 28-44. The disability period from February 7,...
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