Opinion
Case No.: 4:21cv00459/ZCB
2023-03-13
Kenneth Lamar MCIRVIN, Sr., Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
Walter Allen Blakeney, Brock & Stout LLC, Enterprise, AL, for Plaintiff. Peter Gunnar Fisher, DOJ-USAO, Tallahassee, FL, You-Jin Jenny Han, SSA OGC, Atlanta, GA, for Defendant.
Walter Allen Blakeney, Brock & Stout LLC, Enterprise, AL, for Plaintiff. Peter Gunnar Fisher, DOJ-USAO, Tallahassee, FL, You-Jin Jenny Han, SSA OGC, Atlanta, GA, for Defendant. ORDER Zachary C. Bolitho, United States Magistrate Judge
This is a Social Security appeal under 42 U.S.C. § 405(g). Plaintiff Kenneth Lamar McIrvin, Sr. seeks judicial review of the Social Security Commissioner's final decision denying his claim for disability insurance benefits. Because the decision is supported by substantial evidence, it will be affirmed.
I. Procedural History
Plaintiff applied for disability insurance benefits on February 8, 2017, and supplemental security income on February 25, 2017. (Tr. 278-79, 280-85). Plaintiff alleged an onset date of October 15, 2016 ("the alleged onset date"), in both applications. (Id.). The Social Security Administration initially denied benefits on August 2, 2017. (Tr. 92, 107). Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which was held on January 2, 2019. (Tr. 56). On August 30, 2019, the ALJ found that Plaintiff was not disabled. (Tr. 87).
Citations to the administrative record filed by the Commissioner are designated as "Tr." The page numbers cited herein are those found on the bottom right corner of each page of the transcript.
Plaintiff appealed the ALJ's decision, and the Appeals Council remanded the case to the ALJ on July 24, 2020. (Tr. 141-42). The Appeals Council directed the ALJ to do the following on remand: (1) consider and ensure claimant's review of an echocardiogram report from February 8, 2019; (2) if necessary, obtain information from a medical expert related to the nature and severity of and functional limitations resulting from claimant's impairment; and (3) further consider claimant's residual functional capacity. (Tr. 17). On remand, the ALJ conducted a second hearing on November 23, 2020. (Tr. 38). Thereafter, Plaintiff received a partially favorable decision on January 22, 2021. (Tr. 14). The ALJ determined that prior to January 18, 2021, Plaintiff was not disabled. But the ALJ concluded that after January 18, 2021, Plaintiff was disabled. That was so because after January 18, 2021 ("the established onset date"), Plaintiff's age placed him in a higher category, and given his age, education, work experience, and a residual functional capacity of sedentary, a finding of disabled was directed by the Medical-Vocational Guidelines. (Tr. 28-29).
Plaintiff again appealed to the Appeals Council, which this time denied review. (Tr. 1-5). The ALJ's January 22, 2021, decision now stands as the final decision of the Commissioner, and Plaintiff has timely requested judicial review under 42 U.S.C. § 405(g).
II. The Legal Framework
"Disability" is defined as the "inability to engage in 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." 42 U.S.C. § 423(d)(1)(A). The Social Security Administration has established a five-step sequential process to determine whether a claimant is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. § 404.1520(a)(4).
First, the Commissioner must determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the Commissioner will find that the claimant is not disabled. 20 C.F.R. § 404.1520(b). Second, if the claimant is not engaged in substantial gainful activity, then the Commissioner will determine the severity of the claimant's impairments or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). To be disabled, a claimant must have a "severe impairment," which is an impairment that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c).
Third, the Commissioner evaluates whether the claimant's severe impairment meets or equals an impairment listed in Appendix 1 to subpart P of Part 404 of the regulations (the "Listing"). 20 C.F.R. § 404.1520(a)(4)(iii). Fourth, the Commissioner determines whether the claimant's residual functional capacity can meet the physical and mental demands of past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Fifth and finally, the Commissioner determines whether the claimant's residual functional capacity, age, education, and past work experience prevent the performance of any other work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant bears the burden of proof at the first four steps. Goode v. Comm'r of Soc. Sec., 966 F.3d 1277, 1278 (11th Cir. 2020). If the claimant establishes the first four steps, then the burden shifts to the Commissioner at step five to show the existence of other jobs in the national economy that the claimant can perform. Buckwalter v. Acting Comm'r of Soc. Sec., 5 F.4th 1315, 1321 (11th Cir. 2021). If the Commissioner carries this burden, then the claimant must prove that he cannot perform the work identified by the Commissioner. Goode, 966 F.3d at 1279.
III. The ALJ's Decision
In his January 22, 2021 decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. (Tr. 20, Finding 2). At step two, the ALJ found that Plaintiff suffered from the following severe impairments: hypertension, aortic valve insufficiency, mild to moderate mitral valve regurgitation, coronary aneurysms, coronary artery disease, bilateral foot calluses, and ventricular hypokinesis. (Tr. 20, Finding 3). At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 21, Finding 4).
At step four, the ALJ found that Plaintiff had the residual functional capacity to perform sedentary work, with several limitations. (Tr. 21, Finding 5). At the conclusion of his residual functional capacity determination, the ALJ stated that Plaintiff "is unable to sustain concentration and attention for two-hour periods with customary breaks." (Tr. 21, Finding 5). The ALJ further found that, based on Plaintiff's residual functional capacity, he was unable to perform any past relevant work as an industrial cleaner and poultry boner since the alleged onset date. (Tr. 27, Finding 6).
The ALJ went on to state that, prior to the established onset date (January 18, 2021), Plaintiff was a younger individual, aged 45 to 59. (Tr. 27, Finding 7). But since January 18, 2021, Plaintiff's "age category was considered as closely approaching advanced age, when applying the Medical-Vocational Guidelines non-mechanically" under 20 C.F.R. §§ 404.1563 and 416.963. (Tr. 27, Finding 7). The ALJ also found that Plaintiff had a limited education, was able to communicate in English, and had no acquired job skills prior to the established onset date. (Tr. 27, Findings 8 & 9).
At step five, the ALJ found that prior to the established onset date of January 18, 2021, Plaintiff's age, education, work experience, and residual functional capacity did not preclude jobs that existed in significant numbers in the national economy. (Tr. 27, Finding 10). Relying on testimony by a vocational expert (VE), the ALJ found that Plaintiff could work as an office clerk (DOT 249.587-018), information clerk (237.367-046), or charge account clerk (DOT 205.367-014). (Tr. 28). However, the ALJ found that beginning on the established onset date of January 18, 2021—at which point the next higher age category was non-mechanically applied—there were not sufficient jobs in the national economy that Plaintiff could perform. (Tr. 28, Finding 11). Based on these findings, the ALJ concluded under the Medical-Vocational Guidelines that Plaintiff was disabled as of January 18, 2021, but not prior to that date. (Tr. 29).
IV. Standard of Review
This Court's review is limited to determining whether there is substantial evidence to support the Commissioner's findings, and whether the correct legal standards were applied. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Thus, it is not this Court's role to "decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Simon v. Comm'r, Soc. Sec. Admin., 7 F.4th 1094, 1104 (11th Cir. 2021) (cleaned up). Indeed, the Social Security Act provides that "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C § 405(g) (cleaned up); Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998).
The substantial evidence standard is "not high." Biestek v. Berryhill, — U.S. —, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). It requires "more than a mere scintilla, but less than a preponderance." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam) (internal quotations omitted). Put another way, it requires only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek, 139 S. Ct. at 1154 (internal quotation omitted). And, "[i]f the Commissioner's decision is supported by substantial evidence, we must affirm, even if the proof preponderates against it." Phillips, 357 F.3d at 1240 n.8 (internal quotations omitted).
V. Discussion
On appeal, Plaintiff argues the ALJ's decision should be reversed because the residual functional capacity finding is inconsistent with the determination that Plaintiff could perform a significant number of jobs in the national economy. (Doc. 18 at 8). Specifically, Plaintiff asserts that the ALJ's statement that Plaintiff "is unable to sustain concentration and attention for two-hour periods with customary breaks" (Tr. 21) should preclude all work and render Plaintiff disabled prior to the established onset date of January 18, 2021. (Doc. 18 at 9). Defendant has responded by arguing that the ALJ's statement that Plaintiff "is unable to sustain concentration and attention for two-hour periods with customary breaks" is a typographical error that does not warrant remand. (Doc. 19 at 1). Defendant argues that, when considered in the context of the entire record, the ALJ clearly intended to say that Plaintiff is "able" as opposed to "unable" to concentrate for two hours at a time. (Id. at 10). Thus, Defendant argues that the ALJ's decision is supported by substantial evidence and should be affirmed. For the reasons below, the Court agrees with Defendant.
As noted above, the last sentence of the ALJ's residual functional capacity finding states Plaintiff "is unable to sustain concentration and attention for two-hour periods with customary breaks." (Tr. 21). When that statement is considered in the context of the rest of the ALJ's January 22, 2021, decision, the hearing testimony, the medical record, and the ALJ's initial written decision in this case, it is clear the ALJ intended to say that Plaintiff "is able to sustain concentration and attention for two-hour periods with customary breaks." That is the only conclusion that makes sense given this record.
First, there is no discussion in the ALJ's opinion that would support a finding that Plaintiff was unable to concentrate for two-hour periods with customary breaks. The only other mention of concentration in the ALJ's opinion is the following statement, "claimant's fatigue supports a limit in the claimant's ability to concentration (sic)." (Tr. 23). The ALJ does not specify the extent of this limitation or point to any medical evidence that would support a finding of an inability to concentrate for two hour periods. Nor has Plaintiff pointed to any portion of the record where he claimed an inability to concentrate for more than two hours. Likewise, Plaintiff has not cited any medical source statement that would support such a concentrational limitation.
Even Plaintiff admits that the ALJ provided no explanation regarding the statement that Plaintiff was unable to sustain concentration for two hours at a time. (Doc. 18 at 11).
Second, the transcript from the administrative hearing on November 23, 2020 demonstrates that the ALJ's statement regarding Plaintiff's inability to concentrate was a typographical error. At the hearing, the ALJ questioned the VE regarding the issue of concentration limitations. More specifically, the ALJ asked the VE to "assume this person can sustain concentration and attention for 2-hour periods with customary breaks." (Tr. 52). Based on that assumption, the VE stated that the following jobs existed in the national economy: "general office clerk," "information clerk," and "charge account clerk." (Tr. 52-53). The ALJ then changed the hypothetical and asked the VE to "assume this person can stay at attention for one-hour periods with breaks." (Tr. 53). The VE responded that an individual with a one-hour limitation "could not perform any full-time competitive work" that existed in the national economy. (Id.). Such an individual would, therefore, be disabled.
In his decision, the ALJ found that Plaintiff could perform the very jobs (i.e., "general office clerk," "information clerk," and "charge account clerk") that the VE identified as available for an individual who "can sustain concentration and attention for 2-hour periods with customary breaks." (Tr. 28) (emphasis added). Given that the ALJ found Plaintiff could perform the exact jobs the VE specifically identified as available for a person who was able to concentrate for two-hour periods, there is no logical reason to believe the ALJ simultaneously intended to find that Plaintiff was unable to concentrate for two-hour periods. That is especially true given that the VE had explained, in response to the ALJ's revised hypothetical, that there would be no jobs in the national economy for an individual who could not concentrate for more than one hour. Thus, the only plausible explanation is that the ALJ made a typographical error when he wrote "unable" instead of "able" in his discussion of Plaintiff's ability to concentrate.
Third, an examination of the ALJ's original decision (the one prior to the Appeals Council remand) supports the conclusion that the ALJ's statement in the January 22, 2021, decision regarding Plaintiff's inability to concentrate was a typographical error. In his original decision, the ALJ stated that Plaintiff "can sustain concentration and attention for 2-hour periods with customary breaks." (Tr. 83). Additionally, the ALJ's questioning of the VE was nearly identical at the first and second hearing regarding concentration limits. And the VE in the first hearing (like the VE in the second hearing) identified jobs in the national economy for a person who could concentrate for two-hour periods with customary breaks but stated there were no jobs available for a person who could not "sustain attention for one-hour periods with ten-minute breaks." (Tr. 73).
Nothing that occurred on remand from the Appeals Council was directed at the concentration finding, nor was any additional information presented on remand that would have supported the ALJ making a change in that particular finding. Moreover, the VE's testimony at the first and second hearings was nearly identical in response to the ALJ's concentration-based hypotheticals. There were no new arguments made by Plaintiff at the second hearing regarding his ability to concentrate. No new medical evidence was presented on that point. Thus, the ALJ lacked any reason to change his finding regarding Plaintiff's ability to concentrate for two-hour periods. The only plausible explanation for the change in the language used is that the ALJ simply made a typographical error by writing "unable" instead of "able" in his January 22, 2021 decision. To hold otherwise would be to conclude that the ALJ changed his mind for no apparent reason. That is something the Court is unwilling to do.
Other courts have reached the same conclusion in analogous circumstances. See, e.g., Jasent v. Berryhill, No. 8:17-cv-2925, 2019 WL 298430, at *7 (M.D. Fla. Jan. 3, 2019) (refusing to remand because the error in the ALJ's opinion was a "typographical error"); Ortiz v. Comm'r Soc. Sec., No. 6:10-cv-678, 2012 WL 603223, at *7 (M.D. Fla. Feb. 24, 2012) (explaining that "from the ALJ's opinion it is clear that the ALJ simply made a drafting or typographical error in determining Claimant's RFC" and "a remand to correct the error would be an empty exercise"); Marcille v. Berryhill, No. 3:17-cv-1620, 2018 WL 5995485, at *11 (D. Conn. Nov. 15, 2018) (stating that "in the context of the ALJ's decision, it is clear that the use of the word 'sedentary' is a typographical error that does not change the outcome of the decision"); Whitley v. Comm'r of Soc. Sec., No. 17-cv-6664, 2019 WL 2117667, at *3 (W.D.N.Y. May 15, 2019) ("Where, as here, an ALJ's decision contains typographical mistakes, the error can be harmless if it is obvious from the decision as a whole that the error is ministerial and not substantive."); Cummins v. Astrue, No. 2:11-cv-38, 2011 WL 5570069, at *5 n.15 (N.D. Miss. Nov. 16, 2011) (stating that "[a]fter reviewing the record in conjunction with the ALJ's findings, the court is of the opinion that this was clearly a typographical error and the ALJ intended for the RFC and the hypothetical [to the VE] to reflect identical limitations").
At the end of the day, the Court's job is to determine whether the ALJ's conclusion that Plaintiff was not disabled prior to January 18, 2021 is supported by substantial evidence. Having considered the entirety of the record, the Court can confidently say that substantial evidence supports the ALJ's conclusion. Although the ALJ made a typographical error, "[n]o principal of administrative law or common sense requires [a court] to remand a case in quest of a perfect opinion unless there is some reason to believe that the remand might lead to a different result." Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989); see also Jacobus v. Comm'r of Soc. Sec., 664 F. App'x 774, 775-76 (11th Cir. 2016) (finding that remand was unnecessary even though the ALJ made numerous errors because, despite the errors, "substantial evidence supports the ALJ's determination"). Here, the Court finds no reason to remand this matter given that the only action the ALJ could take that would be supported by the record would be to replace the word "unable" with the word "able." Making that correction would not alter the ALJ's conclusion that Plaintiff was not disabled prior to the established onset date of January 18, 2021—a conclusion that is supported by substantial evidence. The ALJ's decision, therefore, will be affirmed.
VI. Conclusion
For the reasons above, it is ORDERED that:
1. The Commissioner's decision is AFFIRMED, this action is DISMISSED, and a final judgment is ENTERED pursuant to sentence four of 42 U.S.C. § 405(g).
2. The Clerk of Court is directed to close the case file.
SO ORDERED, this 13th day of March 2023.