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Huskey-Kinkade v. Berryhill

United States District Court, E.D. Missouri, Northern Division

February 27, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Stacy Huskey-Kinkade was not disabled, and thus not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, or supplemental security income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         The Court adopts the statement of facts set forth in Plaintiff's unopposed Statement of Uncontroverted Facts, which is contained in Plaintiff's brief (ECF No. 15), and Defendant's unopposed Statement of Additional Facts (ECF No. 21-2). Together, these statements provide a fair description of the record before the Court. Specific facts will be discussed as needed to address the parties' arguments.

         Plaintiff, who was born on September 11, 1973, was diagnosed with cervical cancer in 2011. She was treated with chemotherapy and radiation, and she has been in remission since 2012. However, her cancer and its treatment resulted in right renal failure and left renal function of 10%. Thus, bilateral stents were placed in her kidneys beginning in May 2013, and the stents have to be replaced approximately every three months.

         Plaintiff filed her applications for benefits on March 27, 2014. She alleged disability beginning March 28, 2013, due to her history of cervical cancer, learning disability, speech impediment, bipolar disorder, schizophrenia, attention deficit hyperactivity disorder, side effects from chemotherapy, stents in kidneys, incontinence, and depression. On May 19, 2014, Plaintiff's applications were denied at the initial administrative level, and she thereafter requested a hearing before an Administrative Law Judge (“ALJ”).

         A hearing was held on February 24, 2016, at which Plaintiff, who was represented by counsel, and a vocational expert (“VE”) testified. After the hearing, the ALJ granted Plaintiff's request for a psychological consultative examination with IQ testing. The examination took place on April 14, 2016, and the examining psychologist, David Peaco, Ph.D., completed a report dated April 19, 2016.

         Dr. Peaco assessed Plaintiff to have a full scale IQ of 72, with diagnoses of Bipolar Disorder I and Borderline Intellectual Functioning. Dr. Peaco found that Plaintiff had mild limitations in understanding, remembering, and carrying out simple instructions; moderate limitations in understanding, remembering, and carrying out complex instructions, and making judgments in complex work-related decisions; moderate limitations in interacting appropriately with the public, supervisors, and coworkers; and a marked limitation in responding appropriately to usual work situations and to changes in a routine work setting. Tr. 720-28.

         By letter dated May 2, 2016, the ALJ proffered Dr. Peaco's report to Plaintiff through her attorney. In this letter, the ALJ also advised Plaintiff of her right to submit a written statement or comments concerning the new evidence, to submit written questions to be sent to Dr. Peaco, and to request a supplemental hearing, at which Plaintiff would have the opportunity to appear, testify, produce witnesses, and submit additional evidence.

         With respect to the supplemental hearing, the ALJ stated:

If you request a supplemental hearing, I will grant the request unless I receive additional records that support a fully favorable decision. In addition, you may request an opportunity to question witnesses, including the author(s) of the new evidence. I will grant a request to question a witness if I determine that questioning the witness is needed to inquire fully into the issues. If an individual declines a request by me to appear voluntarily for questioning, I will consider whether to issue a subpoena to require his or her appearance.
You may request that I issue a subpoena to require the attendance of witnesses or the submission of records. You must submit a subpoena request, in writing, no later than 5 days before the date of any supplemental hearing. Any request that I issue a subpoena must provide the names of the witnesses or documents to be provided; the address or location of the witnesses or documents with sufficient detail to find them; a statement of the important facts that the witness or document is expected to prove; and the reason why these facts cannot be proven without issuing the subpoena. I will issue a subpoena if reasonably necessary for the full presentation of the case.

         Tr. 208.

         The ALJ and Plaintiff's counsel thereafter exchanged several letters regarding Plaintiff's rights with respect to Dr. Peaco's report. In these letters, Plaintiff's counsel repeatedly stated that Dr. Peaco's opinion supported a fully favorable decision, but that in the absence of a fully favorable decision, Plaintiff wished to request a supplemental hearing at which Plaintiff wished to cross-examine Dr. Peaco. Counsel stated that interrogatories would not suffice, that the “only reason” for a supplemental hearing was to cross-examine Dr. Peaco, and ...

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