Opinion
Civil Action 3:21-cv-01470
03-03-2023
THOMAS EUGENE HOUCK, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge
The plaintiff, Thomas Houck, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security denying a claim for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act (the “Act”).
This matter has been referred to the undersigned United States magistrate judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be affirmed.
I. Background
On February 7, 2019, Houck protectively filed an application for disability insurance benefits and supplemental security income, asserting a disability onset date of October 1, 2018. His application was initially denied by state agency reviewers on June 13, 2019, and upon reconsideration on October 2, 2019. The plaintiff then requested an administrative hearing.
A hearing was subsequently held on June 17, 2020, before an administrative law judge, Richard E. Guida (the “ALJ”). In addition to the plaintiff himself, the ALJ received testimony from the plaintiff's case manager, Kelly Potorff, and an impartial vocational expert, Andrew Caporale. The plaintiff was represented by counsel at the hearing.
On July 1, 2020, the ALJ denied Houck's application for benefits in a written decision. The ALJ followed the familiar five-step sequential evaluation process in determining that Houck was not disabled under the Act. See generally Myers v. Berryhill, 373 F.Supp.3d 528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation process). At step one, the ALJ found that Houck had not engaged in substantial gainful activity since his alleged onset date. At step two, the ALJ found that Houck had the severe impairments of: coronary artery disease; degenerative disc disease; major depressive disorder; and anxiety disorder.
At step three, the ALJ found that Houck did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (eff. Apr. 1, 2018).In doing so, the ALJ considered Houck's limitations in four broad functional areas as a result of his mental disorders, finding no more than moderate limitations in any of the four functional areas. See generally 20 C.F.R. §§ 404.1520a(c), 416.920a(c) (explaining functional limitation rating process for mental impairments); 20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(E) (explaining the four areas of mental functioning); id. § 12.00(F) (explaining process for using paragraph B criteria to evaluate mental impairments). In connection with listings 12.04 and 12.06, the ALJ also considered whether Houck's mental disorders were “serious and persistent,” finding that his impairments had not required medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminished the symptoms and signs of his mental disorders, nor that he had achieved only marginal adjustment as a result. See generally id. § 12.00(G) (explaining process for using alternative paragraph C criteria to evaluate certain mental impairments).
We note that the agency's list of musculoskeletal disorders was extensively revised effective April 2, 2021, after this plaintiff's application for disability and disability benefits was adjudicated by the agency. See generally Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85 Fed. Reg. 78164 (Dec. 3, 2020) (to be codified at 20 C.F.R. pt. 404, subpt. P, app. 1).
These four areas are: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. The ALJ found moderate limitations in Houck's ability to understand, remember, or apply information and his ability to concentrate, persist, or maintain pace. The ALJ found only mild limitations in Houck's ability to interact with others and his ability to adapt or manage himself. (Tr. 20.)
Between steps three and four of the sequential-evaluation process, the ALJ assessed Houck's residual functional capacity (“RFC”). See generally Myers, 373 F.Supp.3d at 534 n.4 (defining RFC). After evaluating the relevant evidence of record, the ALJ found that Houck had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the following limitations:
The Social Security regulations define “light work” as a job that “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighting up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
[H]e can frequently climb ramps and stairs and stoop;
he can occasionally climb ladders, ropes, and scaffolds; he is limited to work that is limited to simple and routine tasks involving only simple work-related decisions and with few, if any, workplace changes; and he is precluded from production pace work.(Tr. 21.)
In making these factual findings regarding Houck's RFC, the ALJ considered his symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. §§ 404.1529, 416.929; Soc. Sec. Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered and articulated how persuasive he found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. §§ 404.1520c, 416.920c.
At step four, based on this RFC and on testimony by the vocational expert, the ALJ concluded that, since his alleged onset date, Houck was unable to perform his past relevant work as a cleaner (commercial) or a stocker, as actually or generally performed.
At step five, the ALJ concluded that, Houck was capable of performing other work that exists in significant numbers in the national economy. Based on his age, education, work experience, and RFC, and based on testimony by the vocational expert, the ALJ concluded that Houck was capable of performing the requirements of representative occupations such as marker (DOT # 209.587-034), cleaner/housekeeping (DOT # 323.687-014), and office helper (DOT # 239.567-010). Based on this finding, the ALJ concluded that Houck was not disabled for Social Security purposes.
The plaintiff sought further administrative review of his claims by the Appeals Council, but his request was denied on June 24, 2021, making the ALJ's July 2020 decision the final decision of the Commissioner subject to judicial review by this court.
Houck timely filed his complaint in this court on August 25, 2021. The Commissioner has filed an answer to the complaint, together with a certified copy of the administrative record. Both parties have filed their briefs, and this matter is now ripe for decision.
II. Discussion
Under the Social Security Act, the question before this court is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See generally 42 U.S.C. § 405(g) (sentence five); Myers, 373 F.Supp.3d at 533 (describing standard of judicial review for social security disability benefits administrative decisions).
Houck asserts on appeal that the ALJ's decision is not supported by substantial evidence because: (1) Houck was deprived of a constitutionally valid administrative adjudicatory process because statutory removal protections afforded to the Commissioner violate the separation of powers; (2) the ALJ failed to properly consider Houck's subjective allegations regarding his symptoms; and (3) the ALJ failed to adequately evaluate how Houck's ability to handle stress in the workplace would affect his ability to meet the occupational demands of unskilled work.
A. Constitutional Separation of Powers Issue
Citing a recent decision by the Supreme Court of the United States, Seila Law LLC v. Consumer Financial Protection Bureau, 140 S.Ct. 2183 (2020), the plaintiff contends that he was deprived of a constitutionally valid administrative adjudicatory process because statutory removal protections afforded to the Commissioner of Social Security violated the separation of powers.
In Seila Law, the Supreme Court of the United States held that statutory removal protections afforded to the director of the Consumer Financial Protection Board (“CFPB”), which provided that the CFPB director, who serves for a fixed term of five years, 12 U.S.C. § 5491(c)(1), could be removed only for “inefficiency, neglect of duty, or malfeasance in office,” id. § 5491(c)(3), violated the separation of powers by insulating the director from removal by the President. Seila Law, 140 S.Ct. at 2197. One year later, the Supreme Court applied Seila Law in considering a similar challenge concerning statutory removal protections afforded to the director of the Federal Housing Finance Agency (“FHFA”), which provided that the FHFA director, who serves for a fixed term of five years, 12 U.S.C. § 4512(b)(2), could only be removed “for cause,” id., and held that this provision violated the separation of powers as well. Collins v. Yellen, 141 S.Ct. 1761, 1783-84 (2021) (“A straightforward application of our reasoning in Seila Law dictates the result here.”).
“Applying the holdings in Seila Law and Collins here makes it clear that the provision for removal of the Commissioner of Social Security, 42 U.S.C. § 902(a)(3), violates the separation of powers.” Stamm v. Kijakazi, 577 F.Supp.3d 358, 366 (M.D. Pa. 2021). Like the CFPB and the FHFA, the Social Security Administration is an independent agency led by a single individual, the Commissioner, who serves a fixed term of six years and may only be removed by the President for “neglect of duty or malfeasance in office,” 42 U.S.C. § 902(a)(3). See Collins, 141 S.Ct. at 1784; Seila Law, 140 S.Ct. at 2197; Stamm, 577 F.Supp.3d at 366; see also U.S. Dep't of Justice, Off. of Legal Couns., Constitutionality of the Commissioner of Social Security's Tenure Protection, 2021 WL 2981542, at *7 (July 8, 2021).
The plaintiff argues that he was deprived of a valid administrative adjudicatory process because, under 42 U.S.C. § 405(b)(1), only the Commissioner can make findings of fact and issue final decisions as to benefits eligibility. Because the ALJ's delegation of authority came from the Commissioner, the plaintiff argues that it is constitutionally defective. The plaintiff further argues that the ALJ decided the case under regulations promulgated by the Commissioner without constitutional authority to issue those rules.
Although it appears to be clear that the statutory removal protections afforded to the Commissioner of Social Security violate the separation of powers, it does not follow that this unconstitutional removal restriction requires the court to set aside an unfavorable disability benefits determination by an ALJ. For one thing, a constitutionally defective statutory removal provision does not render the Commissioner's appointment invalid, and thus it does not automatically void the ALJ's actions under the Commissioner. Stamm, 577 F.Supp.3d at 366-67. As the Supreme Court explained in Collins:
All the officers who headed the FHFA during the time in question were properly appointed. Although the statute unconstitutionally limited the President's authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the [administrative action at issue] as void.Collins, 141 S.Ct. at 1787. Moreover, the ALJ who denied the plaintiff's disability claim was not appointed by a Senate-confirmed Commissioner who was subject to the removal restriction imposed by § 902(a)(3). Rather, this ALJ was appointed by an Acting Commissioner who was not subject to the same statutory removal restriction. See Collins, 141 S.Ct. at 1781; Stamm, 577 F.Supp.3d at 366-67.
In response to the Supreme Court's decision in Lucia v. Sec. & Exch. Comm'n, 138 S.Ct. 2044 (2018), and in light of an executive order concluding that “at least some-and perhaps all-ALJs are ‘Officers of the United States' and thus subject to the Constitution's Appointments Clause,” Exec. Order No. 13843, 83 Fed. Reg. 32755 (July 10, 2018), the Acting Commissioner of Social Security at that time, Nancy Berryhill, ratified the appointments of all previously appointed ALJs and approved those appointments as her own on July 16, 2018. See Soc. Sec. Ruling 191p, 2019 WL 1324866, at *2; Cirko ex rel. Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. 2020); Charran v. Saul, 509 F.Supp.3d 80, 87 (D.N.J. 2020).
Moreover, pursuant to the Supreme Court's analysis in Collins, “[r]elief is available in removal challenges only where officials subject to the challenged removal restrictions cause the alleged injuries, and where those restrictions themselves caused ‘compensable harm' upon plaintiffs.” Stamm, 577 F.Supp.3d at 368 (citing Collins, 141 S.Ct. at 1789). Here, the action challenged by the plaintiff is the ALJ's decision denying benefits. The plaintiff has alleged no direct action by the Commissioner at the time, Andrew Saul, and no involvement in the ALJ's decision by the President at the time, Donald Trump. See Collins, 141 S.Ct. at 1802 (Kagan, J., concurring) (“When an agency decision would not capture a President's attention, his removal authority could not make a difference.”); Stamm, 577 F.Supp.3d at 368. The plaintiff cannot show how the President's supposed inability to remove a Senate-confirmed commissioner without cause might have affected any ALJ's disability benefits decision, much less the decision on the plaintiff's specific claim. See Stamm, 577 F.Supp.3d at 368. As this court has previously explained:
In his reply brief, the plaintiff argues that a presumption of harm should be read into Collins. (Doc. 20, at 2 & n.1 (“Collins suggests that harm should be presumed.”).) We find no such suggestion in Collins. Indeed, previously in Stamm and now here, we have joined other courts in finding that Collins suggests the precise opposite: a required showing that an unconstitutional removal provision inflicted compensable harm. See Collins, 141 S.Ct. at 1789; Lisa Y. v. Comm'r of Soc. Sec., 570 F.Supp.3d 993, 1002-03 (W.D. Wash. 2021) (rejecting the same presumedharm argument); Brooks v. Kijakazi, No. 1:21CV609, 2022 WL 2834345, at *9-*10 (M.D. N.C. July 20, 2022) (same); Robinson v. Kijakazi, Civil Action No. 1:20-CV-00358-KDB, 2021 WL 4998397, at *3 (W.D. N.C. Oct. 27, 2021) (“The Plaintiff simply argues that all actions taken by the Commissioner are void due to the unconstitutional removal provision. However, Collins expressly rejects this view.”).
The ALJ's decision was based upon an uncontested factual record and the application of established law, including case law, which generally cannot be changed by the Commissioner. There is no allegation suggesting a direct nexus between the adjudication of [the plaintiff's] disability claim by the ALJ and the alleged separation of powers violation in the removal statute that applies to the Commissioner. [The plaintiff's] allegations merely express general dissatisfaction with the outcome of the adjudication of his [social security] disability claim.Id.
Accordingly, while the removal-limitation clause in § 902(a)(3) violates the separation of powers, it does not independently require the court to reverse an ALJ's decision absent a showing of compensable harm, which has not been made in this case.
B. Subjective Evidence of the Plaintiff's Symptoms
The plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ erred in his evaluation of Houck's symptoms, including statements or testimony by Houck's case manager and by Houck himself. See generally 20 C.F.R. §§ 404.1502(i), 416.902(i). (“Symptoms means your own description of your physical or mental impairment.”). In particular, the plaintiff appears to contend that the ALJ erred in considering the conservative treatment of Houck's mental health conditions, a single comment by a treating psychiatrist that Houck appeared “to be fairly stable,” Houck's activities of daily living, and the fact that, among his other daily activities, Houck was able to attend medical appointments.
Standing alone, a claimant's allegation of pain or other symptoms is not enough to establish an impairment or disability. 20 C.F.R. §§ 404.1529(a), 416.929(a); Prokopick v. Comm'r of Soc. Sec., 272 Fed. App'x 196, 199 (3d Cir. 2008) (“Under the regulations, an ALJ may not base a finding of disability solely on a claimant's statements about disabling pain ....”). “An ALJ is permitted to reject a claimant's subjective testimony as long as he or she provides sufficient reasons for doing so.” Prokopick, 272 Fed. App'x at 199 (citing Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999)).
When evaluating a claimant's subjective allegations of pain or other symptoms, an ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2 (revised Oct. 25, 2017). First, the ALJ must determine whether there is a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Id. at *3; see also 20 C.F.R. §§ 404.1529(b), 416.929(b). A claimant cannot be found to be “disabled based on alleged symptoms alone.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *4.
Once the ALJ has found that a medically determinable impairment has been established, the ALJ must then evaluate the claimant's allegations about the intensity, persistence, or functionally limiting effects of his or her symptoms against the evidence of record. Id. This evaluation requires the ALJ to consider “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
Here, in evaluating the plaintiff's symptoms, the ALJ expressly considered and extensively discussed both the medical and non-medical evidence in the record. (Tr. 22-27.) This included statements by the plaintiff and by his case manager regarding the limiting effects of his symptoms. Based on his consideration of the whole record, the ALJ properly concluded that, while Houck's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” the statements by Houck and his case manager “concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 24.)
The plaintiff argues that the ALJ erred by referring to the routine and conservative nature of Houck's medical treatment. But an ALJ may properly consider the fact that conservative treatment of a claimant's medical condition contradicts the degree of severity alleged by the claimant. See Myers v. Comm'r of Soc. Sec., 684 Fed. App'x 186, 192 (3d Cir. 2017); Garrett v. Comm'r of Soc. Sec., 274 Fed. App'x 159, 164 (3d Cir. 2008); Dietrich v. Saul, 501 F.Supp.3d 283, 297 (M.D. Pa. 2020); Antoniolo v. Colvin, 208 F.Supp.3d 587, 597 (D. Del. 2016).
The plaintiff also argues that the ALJ erred in referring to a single comment by Houck's treating psychiatrist that he appeared “to be fairly stable.” (Tr. 25.) In a January 29, 2020, treatment note, Houck's treating psychiatrist, Shiv Shankar Aggarwal, M.D., observed the following:
Patient arrived [for] scheduled appointment on time with his case manager .... Since last seen[,] he continues to do well on current medication[.] [D]id not appear to be depressed or anxious[.] [S]tated he [is] doing well[.] [H]e has been sleeping with the help of trazodone[.] [H]is appetite is well[.] [M]ostly stays home .... Overall[,] he seems to be fairly stable ....(Tr. 1719.) In evaluating Houck's mental health symptoms, the ALJ discussed this treatment encounter and other medical evidence. (Tr. 25.) The plaintiff cites caselaw in support of the proposition that a medical provider's observation that the plaintiff's condition was “stable” or “controlled” does not by itself support a conclusion that the plaintiff can work, but these cases are simply inapposite, In Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000), and Williams v. Barnhart, 211 Fed. App'x 101 (3d Cir. 2006), each court found that its ALJ improperly rejected a treating physician's medical opinion on the basis of treatment notes observing that the plaintiff's condition was “stable” or “controlled” with medication. Here, the ALJ did not rely exclusively on this observation by Houck's treating psychiatrist in medical treatment notes to reject contrary medical opinions, but instead he merely considered this as one of several factors in evaluating the plaintiff's symptoms, as expressly mandated by the agency's regulations. As the Third Circuit has previously recognized, “[i]f a symptom can be reasonably controlled by medication or treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (3d Cir. 1986). The agency's regulations expressly permit it to consider medical source evidence such as this in evaluating a claimant's symptoms. Indeed, the applicable regulations mandate such consideration by the ALJ. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (“We will consider all of the evidence presented, including . . . evidence submitted by your medical sources . . . about the nature and severity of your impairment(s) and any related symptoms, such as pain.”).
The plaintiff further argues that the ALJ erred in considering his activities of daily living when evaluating his symptoms. It is indeed true that “[d]isability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity.” Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981). But, nevertheless, an ALJ may properly consider a plaintiff's activities of daily living when evaluating his subjective complaints of pain or other symptoms. See Turby v. Barnhart, 54 Fed. App'x 118, 121 n.1 (3d Cir. 2002) (“Although certainly disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity, it is nonetheless appropriate for the ALJ to consider the number and types of activities in which the claimant engages.”) (citations, brackets, and internal quotation marks omitted); Durden v. Colvin, 191 F.Supp.3d 429, 442 (M.D. Pa. 2016) (“[I]t is permissible for such activities to be used to assess a claimant's [subjective allegations] in light of any true contradiction between his or her alleged severity of symptoms and the claimant's activities.”). Indeed, the applicable regulations mandate such consideration by the ALJ. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (“Factors relevant to your symptoms, . . . which we will consider include . . . [y]our daily activities ....”).
Finally, in the course of discussing the plaintiff's activities of daily living, the ALJ remarked at various times that Houck had been able to attend doctor's appointments. (See, e.g., Tr. 23 (“Regarding activities of daily living, he reported he . . . goes to his doctor's appointments.”); Tr. 24 (“[Houck's case manager] commented on his daily activities[,] noting that he eats breakfast and then goes to his medical appointments.”); Tr. 25-26 (“The claimant reported activities of daily living including . . . attending appointments ....”). The plaintiff argues that these remarks by the ALJ were in error, citing a decision by another federal district court considering the appeal of a claimant who suffered from allegedly disabling headaches:
[T]he ALJ cited the absence of evidence that Plaintiff canceled appointments . . . as evidence that her headaches must not be disabling. Although a claimant can support her claim that her disability will cause frequent absenteeism by presenting evidence of missed appointments, a claimant's regular attendance at medical appointments says very little about her ability to work during her appointments. Indeed, it would seem that a person suffering from debilitating headaches would have a strong interests in attending appointments and seeking relief rather than missing appointments.Virden v. Colvin, Case No. 14-cv-1219, 2015 WL 5598810, at *11 (C.D. Ill. Sept. 22, 2015) (citations omitted).
The Virden decision, however, is inapposite to this case. Here, the ALJ did not rely on this observation to suggest that the plaintiff's impairments were less severe than alleged just because he did not routinely cancel or miss appointments due to his symptoms. Here, the ALJ reasonably considered this activity among others as evidence that the plaintiff retained an ability to focus and concentrate greater than his subjective statements or testimony suggested. See, e.g., Debra D. v. Comm'r of Soc. Sec., No. 2:22-CV-0086-TOR, 2022 WL 16857321, at *6 (E.D. Wash. Nov. 10, 2022) (finding reasonable an ALJ's determination that treatment notes indicating that the plaintiff had good participation in treatment and did not miss or cancel appointments due to mental symptoms conflicted with the plaintiff's subjective allegation that she was unable to sustain focus).
Moreover, even if we were to agree that this single comment by the ALJ constituted error, it is not enough for the plaintiff to simply point out an error. Instead, the burden is on the plaintiff to show that the alleged error would have an effect on the outcome of the ALJ's decision. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009); Perkins v. Barnhart, 79 Fed. App'x 512, 515 (3d Cir. 2003). The plaintiff has failed to meet this burden. Indeed, given the remainder of the evidence considered by the ALJ in evaluating the plaintiff's symptoms and the reasoning articulated in his decision, it is clear that eliminating this single, particular factual finding by the ALJ would have had no effect on the outcome of his broader analysis of the issue.
In his brief, the plaintiff identifies this purported error, but he fails to articulate any prejudice whatsoever that resulted from it. (See Doc. 16, at 11-12.)
Although Houck quibbles with the outcome of the ALJ's analysis of the evidence of record, it is clear that the ALJ properly evaluated the claimant's symptoms in accordance with the applicable regulations, and that the ALJ reasonably concluded that, notwithstanding the claimant's subjective complaints of pain and other symptoms, the evidence as a whole did not support physical or mental limitations in excess of those set forth in the ALJ's RFC determination. While this same evidence might have also reasonably supported the adoption of substantially greater limitations, it did not compel such a finding.
Accordingly, we find the ALJ's evaluation of the subjective evidence of the plaintiff's symptoms is supported by substantial evidence and was reached based upon a correct application of the relevant law.
C. Evaluation of Houck's Ability to Handle Workplace Stress
Citing Social Security Ruling 85-15, the plaintiff argues that the ALJ failed to properly evaluate Houck's mental impairments in determining his RFC. In particular, the plaintiff contends that the ALJ failed to adequately assess how Houck's ability to handle stress in the workplace would affect his ability to meet the occupational demands of unskilled work.
The plaintiff quotes the following passage from Social Security Ruling 85-15 in its entirety:
Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant's condition may make performance of an unskilled job as difficult as an objectively more demanding job. [F]or example, a busboy need only clear dishes from tables. But an individual with a severe mental disorder may find unmanageable the demands of making sure that he removes all the dishes, does not drop them, and gets the table cleared promptly for the waiter or waitress. Similarly, an individual who cannot tolerate being supervised may not be able to work even in the absence of close supervision; the knowledge that one's work is being judged and evaluated, even when the supervision is remote or indirect, can be intolerable for some mentally impaired persons. Any impairment-related limitations created by an individual's response to demands of work, however, must be reflected in the RFC assessment.Soc. Sec. Ruling 85-15, 1985 WL 56857, at *6. Based on this passage, the plaintiff contends that the ALJ failed to comply with the guidance of this ruling in formulating his RFC. Citing only his own subjective functional report, in which Houck self-reported an inability to concentrate, remember complicated instructions, or otherwise handle workplace stress (see Tr. 334-35), the plaintiff contends that Social Security Ruling 85-15 dictates a finding that he is disabled based on his inability to handle stress in the workplace.
The plaintiff's brief quotes this passage piecemeal, but nonetheless quotes it in its entirety. (Doc. 16, at 5-6.)
But the plaintiff's argument is premised on a wholesale acceptance of Houck's subjective reports of his symptoms. As previously discussed, the ALJ found Houck's subjective reports of his symptoms were not entirely consistent with the medical evidence and other evidence in the record. With respect to Houck's mental impairments, the ALJ incorporated them into his RFC determination to the extent supported by the evidence of record, finding that Houck was capable of performing “work that is limited to simple and routine tasks involving only simple work-related decisions and with few, if any workplace changes[,] and he is precluded from production pace work.” (Tr. 21.)
Moreover, the plaintiff's reading of Social Security Ruling 85-15 is incomplete. The ruling lists a variety of activities and aptitudes that an unskilled worker must be able to carry out on a sustained basis, such as the ability to deal with changes in a routine work setting. Soc. Sec. Ruling 85-15, 1985 WL 56857, at *4. The ruling expressly acknowledges that “[a] substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base.” Id. When a claimant has such non-exertional impairments that limit the potential occupational base, the ruling advises that the use of a vocational expert may be necessary to identify specific jobs, if any, that the claimant can still perform despite his or her non-exertional impairments. Id. at *3. In this case, the ALJ sought assistance from a vocational expert, whose testimony identified three jobs that a hypothetical person matching this plaintiff's RFC could perform. Thus, the ALJ's RFC determination complied with the guidance provided in Social Security Ruling 85-15. See Salgado v. Kijakazi, Civil Action No. 20-6094, 2021 WL 3630479, at *6-*7 (E.D. Pa. Aug. 16, 2021).
Accordingly, we find the ALJ's evaluation of the plaintiff's particular mental impairments is supported by substantial evidence and was reached based upon a correct application of the relevant law.
III. Recommendation
Based on the foregoing, we conclude that the Commissioner's finding that Houck was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Accordingly, it is recommended that the decision of the Commissioner of Social Security be AFFIRMED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 3, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.