United States District Court, S.D. Alabama, Southern Division
KIMBERLY D. KYLE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
Kimberly D. Kyle brings this action, pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), seeking judicial review
of a final decision of the Commissioner of Social Security
(“the Commissioner”) denying her claim for a
Period of Disability, Disability Insurance Benefits
(“DIB”), and Supplemental Security Income
(“SSI”), based on disability. The parties have
consented to the exercise of jurisdiction by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Doc. 21 (“In accordance
with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73,
the parties in this case consent to have a United States
Magistrate Judge conduct any and all proceedings in this
case, … order the entry of a final judgment, and
conduct all post-judgment proceedings.”)). See
also Doc. 22. Upon consideration of the administrative
record, Kyle's brief, the Commissioner's brief, all
other documents of record, and oral argument, it is
determined that the Commissioner's decision denying
benefits should be affirmed.
19, 2014, Kyle applied for a Period of Disability and DIB,
under Title II of the Social Security Act, and on August 25,
2014, she applied for SSI, based on disability, under Title
XVI of the Social Security Act (“the Act”), 42
U.S.C. §§ 1381-1383d, alleging disability beginning
on August 1, 2013. (Tr. 147-51, 155-60). After her
application was denied at the initial level of administrative
review on October 31, 2014, Kyle requested a hearing by an
Administrative Law Judge (ALJ). (Tr. 99-103). After a hearing
was held before ALJ L. Dawn Pischek on February 12, 2016, she
issued a decision denying Kyle's claims on January 11,
2017. (Tr. 37-65; 12-33). Kyle appealed the ALJ's
decision to the Appeals Council, which denied her request for
review on October 20, 2017. (Tr. 1-6).
exhausting her administrative remedies, Kyle sought judicial
review in this Court, pursuant to 42 U.S.C. §§
405(g) and 1383(c). (Doc. 1). The Commissioner filed an
answer and the social security transcript on March 8, 2018.
(Docs. 10, 11). On April 6, 2018, Kyle filed a brief in
support of her claim. (Doc. 12). The Commissioner filed her
brief on May 18, 2018. (Doc. 13). Oral argument was held
before the undersigned Magistrate Judge on August 8, 2018.
(Doc. 20). The case is now ripe for decision.
CLAIM ON APPEAL
presents the following claim in this appeal:
Whether the ALJ committed reversible error by failing to
consider that Kyle's consistent effort to obtain pain
relief enhanced her credibility and by mischaracterizing
Kyle's testimony regarding her pain when considering her
testimony. (Doc. 12 at pp. 2-3).
was born on April 11, 1979, making her 35 years old at the
time she filed her claim for benefits. (Tr. 168). Kyle
initially alleged disability due to nerve damage in her legs,
herniated disc in her neck and back, aortic aneurysm, and
fibromyalgia. (Tr. 172). She completed 11th grade in 1995,
after having attended regular classes when she was in school.
(Tr. 173). She has not completed any type of specialized job
training, trade, or vocational school. (Id.). She
has worked as a cashier, secretary, and housekeeper/janitor.
(Tr. 173). She stated that she stopped working in or about
2013/2014 because of her condition. (Tr. 172-73).
handles her own personal care. (Tr. 194-95). During the
relevant period, she lived with her two children. (Tr.
193-94). She is able to cook, wash dishes, do light cleaning,
drive a car, shop in stores, pay bills, count change, handle
a savings account, and use a checkbook. (Tr. 194-96). Her
hobbies include watching her boys play sports, fishing a few
times a year, and playing on the computer. (Tr. 197). She
attends church about twice a month and talks to people online
every day. (Id.). She stated that her pain affects
her ability to do these things and other things she did
before her car accident in November of 2013. (Tr. 194-198).
She stated on her Function Report that she has no limitations
in completing tasks, concentration, understanding, following
written and spoken instructions, paying attention, or getting
along with others. (Tr. 198). She gets along great with
authority figures and handles stress “ok, ” but
does not handle changes in routine well. (Tr. 199).
indicated at the hearing in February of 2016 that she cannot
do her prior jobs because of the pain associated with her
neck, arms, and hip. (Tr. 43-44, 49-50). After conducting the
hearing and reviewing the submitted medical records, the ALJ
made a determination that Kyle had not been under a
disability during the relevant time period, and thus, was not
entitled to benefits. (Tr. 15-28).
January 11, 2017 decision, the ALJ found that Kyle had the
following severe impairments: degenerative disc disease of
the cervical and lumbar spine, left humerus fracture, and
pelvis and ribcage fractures. (Tr. 17). She found that
Kyle's chronic pain syndrome did not cause more than
minimal limitation in her ability to perform basic mental
work activities and was, therefore, not severe. (Tr. 19). The
ALJ also found that her hypertension, chronic indwelling of
an IVC filter, aneurysm of the thoracic aorta, splenic