Fairlee v. Berryhill

Filing 21

JUDGMENT in favor of Kesha Fairlee against Nancy Berryhill. The case is REVERSED AND REMANDED for further proceedings. CASE CLOSED. Signed by Magistrate Judge Jane M. Virden on 11/29/18. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
KESHA FAIRLEE

PLAINTIFF
NO. 3:17CV00256-JMV

NANCY BERRYHILL,
COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

FINAL JUDGMENT
This cause is before the court on Plaintiff’s complaint for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration
denying claims for a period of disability and disability insurance benefits and supplemental
security income benefits. The parties have consented to entry of final judgment by the
United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal
to the Court of Appeals for the Fifth Circuit. The court, having reviewed the administrative
record, the briefs of the parties, and the applicable law, and having heard oral argument, finds
as follows:
Consistent with the court’s ruling from the bench during a hearing held today, the
court finds the ALJ’s residual functional capacity (“RFC”) assessment is not supported by
substantial evidence in the record. First, the ALJ failed to properly consider the claimant’s
right shoulder impairment. Specifically, the ALJ failed to consider the claimant’s right
shoulder impairment at step two of the sequential evaluation process despite evidence in the

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record of consistent complaints of pain, objective medical findings of functional limitations,
and medical treatment in the form of shoulder injections. Second, the ALJ failed to fairly
develop the record with regard to the claimant’s physical impairments before formulating the
claimant’s physical RFC. The ALJ concluded the claimant had a light RFC (which
requires, among other things, the ability to perform at least six hours of standing and walking
on an ongoing and continuous basis) despite evidence of back-to-back foot surgeries; the
claimant’s inability for full weightbearing for at least a year; and consistent complaints of
diffuse pain in both lower extremities. Indeed, the ALJ’s physical RFC finding appears to
be inconsistent with his having found that the claimant’s obesity “exacerbate[d] the pain and
other symptoms she experience[d].” Ultimately, the court is of the opinion that without the
aid of a function-by-function assessment of a physician, the ALJ was without sufficient
information to properly assess the claimant’s RFC in a case like this where the claimant
suffered from multiple conditions that elicited severe diffuse pain including, but not limited
to, bilateral shoulder impingement, fibromyalgia, and neuritis and peripheral polyneuropathy
of the feet.1
On remand, the ALJ must reconsider the claimant’s physical RFC. The ALJ must
either obtain a physical medical source statement(s) from the claimant’s treating physician(s)
that includes a function-by-function assessment of physical RFC or obtain the assistance of a
medical consultant who will review the entirety of the medical evidence and render a

The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure that his decision is an
informed decision based on sufficient facts. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). See also
Myers v. Apfel, 238 F.3d 617, 620-21 (5th Cir. 2001) (stating the ALJ’s RFC determination must be based on a
function-by-function assessment of the claimant’s ability to perform sustained work activities).

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function-by-function assessment of physical RFC. Ultimately, after considering all of the
evidence in the record, the ALJ must make a new RFC determination that is supported by
substantial evidence. If necessary, the ALJ must provide an explanation, supported by
substantial evidence in the record, for rejecting any medical opinion. And, to the extent
necessary, the ALJ must obtain supplemental vocational expert evidence on the issue of
whether there is any work the claimant can perform, considering all of her limitations.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this case is
REVERSED and REMANDED for further proceedings.
This, the 29th day of November, 2018.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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