Kyle v. Berryhill

Filing 19

ORDER DENYING 16 Motion for Summary Judgment; DENYING 17 Motion for Summary Judgment; REVERSING IN PART the SSA's Judgment; REMANDING case for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 4/30/2018. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

April 30, 2018
LETTER TO COUNSEL
RE:

Andrea Lorvetta Kyle v. Commissioner, Social Security Administration;1
Civil No. SAG-17-1419

Dear Counsel:
On May 23, 2017, Plaintiff Andrea Lorvetta Kyle petitioned this Court to review the
Social Security Administration’s (“SSA’s”) final decision to deny her claim for Disability
Insurance Benefits (“DIB”). [ECF No. 1]. I have considered the parties’ cross-motions for
summary judgment, and Ms. Kyle’s reply. [ECF Nos. 16, 17, 18]. I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). This Court must uphold the decision of the
Agency if it is supported by substantial evidence and if the Agency employed proper legal
standards. See 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996). Under that standard, I will deny both motions, reverse the SSA’s decision in part, and
remand the case to the SSA for further consideration. This letter explains my rationale.
Ms. Kyle filed a claim for DIB on April 2, 2013, alleging a disability onset date of April
26, 2012. (Tr. 153-54). Her claim was denied initially and on reconsideration. (Tr. 69-95). A
hearing was held on December 8, 2015, before an Administrative Law Judge (“ALJ”). (Tr. 3068). Following the hearing, the ALJ determined that Ms. Kyle was not disabled within the
meaning of the Social Security Act during the relevant time frame. (Tr. 13-29). The Appeals
Council denied Ms. Kyle’s request for review, (Tr. 1-5), so the ALJ’s decision constitutes the
final, reviewable decision of the Agency.
The ALJ found that Ms. Kyle suffered from the severe impairments of “Systemic Lupus
Erythematosus, migraine, and obesity.” (Tr. 18). Despite these impairments, the ALJ
determined that Ms. Kyle retained the residual functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a). She could never
climb ladders, ropes, or scaffolds but could perform the remaining postural
activities not more than occasionally. She was limited to work performed indoors
to avoid exposure to sunlight. She should have been exposed to not more than a
moderate noise intensity level as the term “moderate” is defined in the SCO. She
1

Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not
reserved to the Commissioner of Social Security.

Andrea Lorvetta Kyle v. Commissioner, Social Security Administration
Civil No. SAG-17-1419
April 30, 2018
Page 2
should have had no work near hazards such as unprotected heights or moving
machinery and not have more than occasional exposure to extreme cold.
(Tr. 20). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Kyle could perform her past relevant work as a regional team assistant and telephone
solicitor and that, therefore, she was not disabled. (Tr. 24-25).
Ms. Kyle raises two primary arguments on appeal: (1) that the ALJ did not provide an
adequate analysis of Listing 14.02 at step three; and (2) that the ALJ erred by not finding her
chronic fatigue syndrome (“CFS”) to be a severe impairment at step two. I concur that the ALJ’s
analysis is lacking, and that remand is warranted. In remanding the case for additional
explanation, I express no opinion as to whether the ALJ’s ultimate conclusion that Ms. Kyle is
not entitled to benefits is correct.
Beginning with the ALJ’s Listing 14.02 analysis, the ALJ found the following:
Listing 14.02.was [sic] considered. The possibility of obesity increasing the
severity of coexisting or related impairments to the extent that the combination of
impairments met the requirements of a listing was also considered in accordance
with Social Security Ruling 02-1p. The medical evidence does not document
listing-level severity, and no acceptable medical source has mentioned findings
equivalent in severity to the criteria of any listed impairment, individually or in
combination.
(Tr. 20). In Fox v. Colvin, the Fourth Circuit clarified the evidentiary requirements needed to
support an ALJ’s determination of whether any of a claimant’s impairments meets a listing at
step three of the sequential evaluation. 632 F. App’x 750 (4th Cir. 2015). The ALJ in Fox
stated:
Although the claimant has ‘severe’ impairments, they do not meet the criteria of
any listed impairments described in Appendix 1 of the Regulations (20 CFR,
Subpart P, Appendix 1). No treating or examining physician has mentioned
findings equivalent in severity to the criteria of any listed impairment, nor does
the evidence show medical findings that are the same or equivalent to those of any
listed impairment of the Listing of Impairments. In reaching this conclusion, the
undersigned has considered, in particular, sections 9.00(B)(5) and 11.14.
Id. at 754-55. The Fourth Circuit held that the ALJ’s analysis was deficient because it consisted
of conclusory statements and did not include “any ‘specific application of the pertinent legal
requirements to the record evidence.’” Id. at 755 (quoting Radford v. Colvin, 734 F.3d 288, 29192 (4th Cir. 2013)). That is, the ALJ did not apply any findings or medical evidence to the
disability listing and “offered nothing to reveal why he was making his decision.” Id. The
Fourth Circuit also rejected the notion that failure to engage in meaningful analysis at step three
could constitute harmless error where the evidence of record otherwise demonstrated that the

Andrea Lorvetta Kyle v. Commissioner, Social Security Administration
Civil No. SAG-17-1419
April 30, 2018
Page 3
claimant did not meet a listing. Id. Rather, the Fox Court emphasized that it is not this Court’s
role to “engage[] in an analysis that the ALJ should have done in the first instance,” or “to
speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ’s
justifications that would perhaps find support in the record.” Id. The Fox Court noted that it
could not conduct a meaningful review “when there is nothing on which to base a review.” Id.
In the instant case, the ALJ’s analysis is almost identical to that found lacking in Fox.
SSA concedes that the “ALJ’s explanation was cursory,” but argues (1) that the ALJ’s opinion as
a whole contains substantial evidence to support the finding, and (2) that the error is harmless
because the record cannot support a finding that Ms. Kyle’s condition met or equaled Listing
14.02. Def. Mot. 5.
However, the ALJ’s opinion does not, at any point, contain an assessment of the criteria
set forth in Listing 14.02. That listing requires an analysis of whether Ms. Kyle’s Systemic
Lupus Erythematosus involves “two or more organs/body systems” with one “involved to at least
a moderate level of severity” and “[a]t least two of the constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary weight loss).” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 14.02.
The ALJ did not address those criteria anywhere in the opinion, despite some discussion of Ms.
Kyle’s fatigue and renal involvement. Fourth Circuit precedent does not permit this Court to
engage in a broad review of the record evidence in the first instance. The Fox Court found fault
in the ALJ’s analysis because he did not “provide any explanation connecting his determination
to that of [the claimant’s] failure to meet the listing impairment.” 632 F. App’x at 755. Thus,
regardless of whether there was inconsistent evidence in the record, the ALJ had a duty to
connect the requirements of relevant listings to medical findings regarding Ms. Kyle’s severe
impairments. Furthermore, that duty would not be fulfilled by an ALJ’s discussion of medical
evidence elsewhere in the decision, unless the evidence was directly connected to the
requirements of a listing. See Smith v. Astrue, 457 F. App’x 326, 328 (4th Cir. 2011) (“Reading
the ALJ’s decision as a whole, substantial evidence supports the finding at step three of the
sequential evaluation process as the ALJ’s analysis at subsequent steps of the evaluation are
inconsistent with meeting Listing 1.02.”); but see Fox, 632 F. App’x at 755 (“Nor was there any
‘specific application of the pertinent legal requirements to the record evidence.’ As a result, the
ALJ’s findings lack the ‘necessary predicate’ for us to engage in review.”) (citations omitted).
Here, as in Fox, the ALJ failed to apply the requirements of relevant listings to the medical
evidence at any point in the decision. Moreover, Fox and its progeny seem to preclude a
“harmless error” analysis by prohibiting a de novo review of the record to see whether evidence
supporting a listing is contained therein. Accordingly, remand is warranted.
Second, Ms. Kyle correctly notes that the ALJ did not make a finding as to whether her
CFS constituted a severe impairment, despite the diagnosis being evident throughout her record.
See, e.g., (Tr. 498, 499, 501, 502, 504). Although, arguably, Ms. Kyle’s fatigue symptoms were
adequately considered as to her other diagnoses, because the case is being remanded on other
grounds, on remand, the ALJ should consider the CFS diagnosis at step two, and should
determine whether it is severe. If appropriate, the ALJ should also follow the dictates of SSR
14-1p, which governs an ALJ’s evaluation of a claimant with CFS.

Andrea Lorvetta Kyle v. Commissioner, Social Security Administration
Civil No. SAG-17-1419
April 30, 2018
Page 4
For the reasons set forth herein, Ms. Kyle’s Motion for Summary Judgment [ECF No. 16]
is DENIED, and Defendant’s Motion for Summary Judgment [ECF No. 17] is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the SSA’s judgment is REVERSED IN PART
due to inadequate analysis. The case is REMANDED for further proceedings in accordance with
this opinion. The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge