Opinion
C. A. 6:22-cv-01722-MGL-KFM
03-13-2023
Kaylee Gilstrap, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. § 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for supplemental security income (“SSI”) benefits on December 29, 2014, alleging that she became unable to work on April 23, 1999 (Tr. 199-207). The application was denied initially (Tr. 65-77, 79-89) and on reconsideration (Tr. 91-103) by the Social Security Administration. On August 10, 2015, the plaintiff requested a hearing (Tr. 119-20). On May 16, 2017, an administrative hearing was held in Greenville, South Carolina, at which the plaintiff, represented by counsel; a witness; and Benson Hecker, an impartial vocational expert, appeared and testified before the administrative law judge (“ALJ”) assigned to the case (Tr. 36-64). On September 13, 2017, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 17-35). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on November 29, 2018 (Tr. 1-3).
This is the only application at question in the instant matter.
On December 19, 2018, the plaintiff filed a complaint in the United States District Court for the District of South Carolina, and on September 19, 2019, the case was remanded to the Commissioner for further proceedings based upon a voluntary motion to remand by the Commissioner (Tr. 616-17). Gilstrap v. Comm'r Soc. Sec. Admin., C/A No. 6:18-cv-03510-MGL-KFM, at doc. 32 (D.S.C. Sept. 19, 2019). On December 6, 2019, the Appeals Council issued an order remanding the matter to the ALJ to issue a new decision in accordance with the order (Tr. 620-21).
On January 7, 2021, a second administrative hearing was held at which the plaintiff, represented by counsel; a witness; and William Stewart, an impartial vocational expert, appeared and testified by telephone due to the COVID-19 pandem ic before the ALJ assigned to the case (Tr. 536-72). On February 2, 2021, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 514-35). The ALJ's finding became the final decision of the Commissioner when the Appeals Council denied the plaintiff's request for review on May 9, 2022 (Tr. 504-07). The plaintiff then filed this action for judicial review (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since December 15, 2014, the application date (20 C.F.R. § 416.971, et seq.).
(2) The claimant has the following severe impairments: borderline intellectual functioning, affective disorder and anxiety disorder (20 C.F.R. § 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926).
(4) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: can sustain concentration, persistence, and pace for periods of two hours at a time with simple, routine tasks; can have no customer service interaction with the public, but can have frequent interaction with coworkers and supervisors; may not perform fast-paced assembly line type of work, but can meet production requirements that allow her to sustain a flexible and goal oriented pace; can perform low-stress work defined as occasional decision making and occasional changes in work setting; must work jobs wherein supervisors are onsite and can make periodic checks on the workers.
(5) The claimant has no past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on April 23, 1993, and was 21 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. § 416.963).
(7) The claimant has at least a high school education (20 C.F.R. § 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. § 416.968)
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since December 15, 2014, the date the application was filed (20 C.F.R. § 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform her past relevant work, and (5) can perform other work. Id. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff, who was 21 years old on the application date, seeks SSI based upon her mental impairments. She has no past relevant work (Tr. 527). The plaintiff argues that the ALJ erred by failing to adequately explain the mental residual functional capacity (“RFC”) findings (doc. 10 at 9-16). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 15 at 9-11).
Mental Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. § 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 416.945(a)(3).
Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including
the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.
SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted, the plaintiff argues that the ALJ erred in determining the mental RFC assessment. Here, relevant to the plaintiff's argument regarding her mental RFC, at step two, the ALJ found that the plaintiff had “moderate” limitations in all four functional areas (Tr. 517-18). The ALJ noted:
In understanding, remembering, or applying information, the [plaintiff] has moderate limitations. The record shows that when the [plaintiff] was in school, she had trouble in reading understanding and remembering facts, which affected her ability to analyze and comprehend details (Ex 4F/4, 9). However, the [plaintiff] reported that she had a driver's license and could drive by herself every day, which requires the ability to comprehend, remember, and carry out procedures of the road (Ex 5F/2). Further, she testified that she has worked for Uber and Door Dash and is able to use the Apps on her phone to make food deliveries and transport individuals. She testified that there have been occasions when the directions from the
Apps were wrong and she had to use Google maps to obtain accurate directions, which reveals she retains the capacity to follow simple directions and complete simple tasks. As such, the record supports no more than moderate limitations in understanding, remembering, and applying information.
In interacting with others, the [plaintiff] has moderate lim itations. While the [plaintiff] is not involved in any social clubs, support groups or organizations (Ex 11F/4) and reports she has trouble understanding social cues and does not like to go out socially (Exs 9F/3 and 11 F/4), medical records reference her going to church occasionally and she reported getting along with others, including her parents and family members (Exs 7E/5, 9F/3, 11 F/4). The [plaintiff] reported that she socialized with friends (Ex 5F/1) and enjoys activities such as taking her son to the park (Ex 7E/5). She interacts with the public in the course of her job responsibilities with Door Dash and Uber (Testimony). Psychological examiners described her as polite and cooperative (Exs 5F/3-4; 9F/1-3; 11F/4). Based on this evidence, I find that the [plaintiff] has moderate limitations in interacting with others.
With regard to concentrating, persisting, or maintaining pace, the [plaintiff] has moderate limitations. The [plaintiff's] school records reveal that she had trouble with attention, concentration, and organization (Exs 8F/3; 10F/4, 15). For these reasons, she was placed in a special education program (Ex 5F/2). In addition, during the psychological consultative evaluations, she had trouble with serial seven subtractions (Exs. 9F/2, 11F/4). However, there was no evidence of disordered thought process, she could maintain a conversation with the consultative examiners, and could respond to questions from her representative and the undersigned during the hearing (Exs 5F/1-2; 9F/2). The [plaintiff] testified that she has been able to work 5-6 days a week for Uber and Door Dash and is able to follow the instructions and directions in the Apps, describing that the App would pop-up on her phone from a restaurant and she would pick up the food and deliver it to the customer. She testified that she had no difficulty using the Apps and when there were errors in the App as to the correct destination, she would use the Google Maps App on her phone to figure out the correct location. Accordingly, I find that the longitudinal evidence supports no more than moderate limitations concentrating, persisting, or maintaining pace.
As for adapting or managing oneself, the [plaintiff] has experienced moderate limitations. The [plaintiff] reported that she had some trouble at home because she was not following the household rules (Ex 3F/6). The evidence also indicates that the [plaintiff] had behavioral difficulties at school and was arrested for drug related charges (Ex 4F/1,8 and Testimony). Yet, the record shows that her behavior is well controlled with medications (Ex 5F/2) and the drug related charges occurred during a period of time when she was not compliant with her prescribed therapeutic regime, including using drugs that made
her psychotropic medications less efficient and she acknowledged missing multiple doses of medications in a week (Ex 21F/1 and 3). She is observed to be neatly groomed during her psychological evaluations (Exs 5F/2 and 9F/1), consistent with mental health records dated as recently as October 8, 2020 in which she is noted to be “well-groomed, cooperative attitude, and calm behavior” (Ex 21F/43). She reports that she is able to prepare simple meals, go grocery shopping, and pay bills (Ex 7E/4). Based on this evidence, I find that the [plaintiff] has moderate limitations in adapting and managing oneself.(Tr. 517-18). In determining the plaintiff's RFC, the ALJ limited the plaintiff to a full range of work at all exertional limitations, with the following nonexertional limitations:
can sustain concentration, persistence, and pace for periods of two hours at a time with simple, routine tasks; can have no customer service interaction with the public, but can have frequent interaction with coworkers and supervisors; may not perform fast-paced assembly line type of work, but can meet production requirements that allow her to sustain a flexible and goal oriented pace; can perform low-stress work defined as occasional decision making and occasional changes in work setting; must work jobs wherein supervisors are onsite and can make periodic checks on the workers.(Tr. 520).
Despite the above limitations, the plaintiff argues that the ALJ should have assessed additional limitations based on the plaintiff's trouble following more than “very short” instructions and that the plaintiff should have been limited to jobs at a General Education Development (“GED”) reasoning level of 1 (doc. 10 at 9-16). The court disagrees. As an initial matter, the plaintiff's argument appears to request that this court re-weigh the record evidence considered by the ALJ and come to a different conclusion, which goes beyond the purview of substantial evidence review. Indeed, the sparse references to the record provided by the plaintiff are of records that were included in the ALJ's discussion of the plaintiff's mental impairments, and while the plaintiff disagrees with the ALJ's conclusion, she has provided no reference to evidence ignored by the ALJ.
For example, as explained by the ALJ, the plaintiff only saw Robert Richards, M.D., her primary mental health provider, two to three times a year for medication management (Tr. 521 (citing Tr. 412-14, 475-76, 492-99)). Dr. Richard's treatment notes indicated that the plaintiff had a good response to medications, was doing well, and did not require emergent care despite calls from the plaintiff's mother informing Dr. Richards that the plaintiff was having anxious or manic symptoms (Tr. 412-14, 475-76, 492-99). Likewise, as noted by the ALJ, mental health treatment records in 2018 noted increased anxiety and manic symptoms, but that was secondary to the plaintiff discontinuing all of her medications, and reports of rapid cycling moods in late 2018 and 2019 coincided with the plaintiff's illicit use of substances, including cocaine and methamphetamine (Tr. 522). Further, as recognized by the ALJ, treatment notes from Renu Bhatia, M.D., with St. Francis Psychiatry noted that by May 2019 the plaintiff was sober, and records later that year indicated that the plaintiff denied depression or anxiety and had relatively benign examination findings (Tr. 522-23 (citing Tr. 995-1041)). In light of these treatment records, the ALJ noted that the plaintiff's mental impairments could be accounted for in the mental RFC assessment set forth in his decision.
The plaintiff appears to argue that her trouble with concentration precludes her from concentrating, persisting, and maintaining pace to complete simple, routine tasks for two hours at a time. The undersigned disagrees. For example, although the plaintiff subjectively reported difficulty with concentration, as recognized by the ALJ, the record evidence did not note disordered thought processes and rarely noted poor concentration or attention (Tr. 523). Indeed, although B.K. Lesley, a licensed psycho-educational specialist, on September 8, 2005, indicated that the plaintiff's ability to sustain attention and concentration was in the extremely low range (Tr. 375), Brian Keith, Ph.D., noted that the plaintiff was reserved but attentive and cooperative with coherent and linear conversation and no circumstantial dialogue when he completed a consultative evaluation of the plaintiff (Tr. 403, 405). Further, although Dr. Richards indicated in an April 2015 medical source statement that the plaintiff had extreme limitations in her concentration, persistence, and pace abilities (Tr. 490), just three months previously he indicated that the plaintiff had normal thought processes and only mildly distractible attention and concentration with the ability to complete simple, routine tasks (Tr. 413). Notably, the private consultative examiner, Robin Moody, Ph.D., LPC/S, NNC, indicated that the plaintiff had poor concentration, persistence, and pace and that she could not carry out simple instructions, but opined that the plaintiff could make cash transactions and manage her own funds (Tr. 473). Examination findings by Rebecca Sorrow, Ph.D., on the other hand, assessed the plaintiff as having the concentration and focus needed to perform simple tasks and follow basic instructions, and Dr. Sorrow indicated that the plaintiff's lower score on the MiniMental State Examination (“MMSE”) appeared to be related to “limited abilities not lack of attention and concentration” (Tr. 435). Similarly, treatment records from Dr. Bhatia from 2019 to 2020 indicate that the plaintiff had intact attention and concentration during every treatment visit (Tr. 997-98, 1003-05, 1008-09, 1013-14, 1019-20, 1025-26, 1031-32, 1037-38). Based upon this record evidence, the ALJ found that the plaintiff could sustain concentration, persistence, and pace for periods of two hours to complete simple, routine tasks.
The plaintiff also argues that the ALJ should have assessed additional limitations in the mental RFC assessment because the plaintiff reported difficulty following more than two instructions at a time, which required a limitation to GED reasoning level 1 jobs (doc. 10 at 9). The plaintiff's assertion appears to rely on a note in the plaintiff's function report that she can follow one or two spoken instructions at a time (Tr. 263). In essence, the plaintiff argues that because the ALJ recognized the plaintiff's subjective report that she has difficulty following more than two instructions at a time he was required to limit the plaintiff to GED reasoning level 1 jobs. The undersigned finds the plaintiff's argument unavailing. As an initial matter, the ALJ found the plaintiff's subjective allegations were not consistent with the record evidence (Tr. 523); thus, the ALJ was not required to adopt the subjective limitations noted by the plaintiff, and the plaintiff has not argued in this matter any error with respect to the ALJ's subjective complaints analysis.
As the plaintiff has failed to assert error with respect to the subjective complaints analysis completed by the ALJ, it is waived. Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief).
Additionally, the plaintiff's argument relies on an apparent misunderstanding of the state agency psychological consultants' opinions - asserting that because Manhal Wieland, Ph.D., and Xanthia Harkness, Ph.D., indicated in their review that the plaintiff was not significantly limited in her ability to understand and remember very short and simple instructions and was moderately limited in her ability to understand and remember detailed instructions that the ALJ should have limited the plaintiff to very short and simple instructions (doc. 10 at 9-12). However, the plaintiff fails to note that Drs. Wieland and Harkness opined mental RFC assessments based on their evaluations of the file - and neither Dr. Wieland nor Dr. Harkness opined that the plaintiff should be limited to very short and simple instructions (see Tr. 86, 100). Instead, Drs. Wieland and Harkness opined that the plaintiff would, relevant to this discussion, be able to “attend to and perform simple tasks” and “make simple work-related decisions” (Tr. 86, 100). Thus, the opinions of Drs. Wieland and Harkness do not provide a basis for additional mental RFC limitations to those adopted by the ALJ.
It may be that the plaintiff attempts to assert that the opinions of Drs. Wieland and Harkness are not consistent with the record evidence. The undersigned disagrees. In support of her assertion, the plaintiff relies on a notation in an individual education plan (“IEP”) dated October 1, 2010, and a review of the IEP completed February 2, 2011 (Tr. 388, 453). While the plaintiff is correct that the lEPs noted that the plaintiff needed help clarifying/simplifying directions, did better with one direction at a time, and needed extra time on tasks (Tr. 388, 453), as noted by the ALJ, additional mental RFC limitations were not supported by the record evidence that the plaintiff had a driver's license, drove by herself, and that she was able to work for Uber and Door Dash, including accessing Google to obtain directions to a destination when the Uber or Door Dash directions were incorrect (Tr. 517-18). The plaintiff has not provided any additional references to record evidence in support of her assertion. The Court of Appeals for the Fourth Circuit has held that while an RFC assessment must include a narrative describing how the evidence supports the ALJ's conclusions, there is no particular format or language that must be utilized, so long as the decision permits meaningful judicial review. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Here, the ALJ's decision, with its detailed discussion of the record evidence and the resultant mental RFC limitations, permits such review. As such, the ALJ's RFC assessment is supported by substantial evidence, free from legal error, and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).