Opinion
7:22-CV-77-FL
06-11-2023
TRACI MICHAEL, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Traci Michael (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the denial of her application for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be granted, Defendant's Motion for Judgment on the Pleadings [DE #19] be denied, and the case remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB and SSI on November 30, 2017, with an alleged onset date of April 15, 2017. (R. 15, 430-40.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 153-54, 201-02, 261-62.) A telephonic hearing was held on June 10, 2020, before Administrative Law Judge (“ALJ”) Rebecca Adams, who issued an unfavorable ruling on June 24, 2020. (R. 20328.) On January 15, 2021, the Appeals Council remanded the matter because “it [did] not appear that the Administrative Law Judge looked fully into the issues pertinent to this case.” (R. 230.)
Another telephonic hearing was held, this time on October 4, 2021, before ALJ Adams, who issued an unfavorable ruling on October 28, 2021. (R. 15-67.) On March 18, 2022, the Appeals Council denied Plaintiff's request for review. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On May 17, 2022, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). “If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act (“the Act”). As a preliminary matter, the ALJ found Plaintiff meets the insured status requirements of the Act through June 30, 2023. (R. 18.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since April 15, 2017, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff has the severe impairments of degenerative disc disease with radiculopathy, migraine headache impairment, obesity, Fibromyalgia Syndrome (FMS), generalized anxiety disorder, somatoform disorder, and major depressive disorder. (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 19.) The ALJ expressly considered Listings 1.15, 1.16, 1.18, 12.04, and 12.06. (R. 19-22.) The ALJ also considered SSR 12-2p in connection with Plaintiff's FMS, SSR 19-2p in connection with Plaintiff's obesity, and SSR 19-4p and Listing 11.02 in connection with Plaintiff's migraine headache impairment. (Id.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff has
the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except: no more than frequently climb ramps; no more than occasionally climb stairs; never climb ladders, ropes, or scaffolds; no more than frequent pushing and pulling with the right upper extremity; no more than frequent overhead reaching with the right upper extremity; no more than frequent handling and fingering with the right upper extremity; avoid concentrated exposure to workplace hazards as defined in the Selected Characteristics of Occupations; must be allowed to use a hand held ambulation device in the workplace for ambulation only; understand, remember and carry out instructions for simple, routine tasks not at a production pace, maintain concentration[,] persistence and pace for 2-hour intervals assuming normal 15 minute AM and PM breaks and a 30 minute lunch break; no more than frequent interaction with coworkers and supervisors; no more than occasional interaction with the public; adapt to workplace changes involving simple work-related decisions.(R. 22-23.) In making this assessment, the ALJ stated that she considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. §§ 404.1529, 416.929, and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017), and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not entirely consistent with the medical evidence and other evidence in the record.” (R. 23, 25.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 30.) At step five, the ALJ determined, based upon Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, namely: nut sorter (DOT #521.687-086), addresser (DOT #209.587-010), and surveillance system monitor (DOT #379.367-010). (R. 32.) The ALJ concluded that Plaintiff has not been disabled under the Act from April 15, 2017, through the date of the decision. (Id.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by
(A) relying on jobs identified by the Vocational Expert (VE) at step five that conflict with Plaintiff's RFC, and otherwise failing to obtain an explanation from the VE regarding the conflicts between the jobs identified and Plaintiff's RFC (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #15] at 4-8); and
(B) failing to properly evaluate Plaintiff's fibromyalgia (id. at 9-12; Pl.'s Response Br. [DE #21] at 4-6).The Commissioner contends that ALJ Adams (A) committed no error regarding the jobs identified at step five, and (B) properly evaluated Plaintiff's fibromyalgia. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #20] at 6-17.) The undersigned disagrees with the Commissioner for the reasons explained below and, therefore, recommends remand.
A. Step Five
Plaintiff argues that there are problems with each job identified at step five such that the Commissioner, in relying on these jobs, failed to carry her burden at step five. The undersigned agrees.
In Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015), the Fourth Circuit, in addressing the impact of SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), held that an ALJ must independently identify and obtain a reasonable explanation from the VE as to any apparent conflicts between the VE's testimony and the DOT before relying on the VE's testimony. Pearson, 810 F.3d at 209-10. “An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT].” Id.
Plaintiff argues that a comparison of the nut sorter job description to her RFC shows she cannot perform the nut sorter job because it requires production-pace work. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 5-6.) ALJ Adams determined Plaintiff had the RFC to perform jobs requiring simple, routine tasks but “not at a production pace.” (R. 23.) The nut sorter job requires someone to
[r]emove[] defective nuts and foreign matter from bulk nut meats[;] [o]bserve[] nut meats on conveyor belt, and pick[] out broken, shriveled, or wormy nuts and foreign matter, such as leaves and rocks; [and] [p]lace defective nuts and foreign matter into containers.DICOT 521.687-086, 1991 WL 674226. The DOT also states this job may be called “Hull Sorter,” “Nut Picker,” “Nut Sifter,” or “Picking-Belt Operator.” Id. Plaintiff emphasizes that the importance of the conveyor belt in this job means that production-pace work is required. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 6.) In support, Plaintiff cites two decisions from this court: Lewis v. Colvin, No. 7:13-CV-59-D, 2014 WL 4205834, at *12 (E.D. N.C. Aug. 5, 2014) (recognizing potential conflict regarding job requiring someone to place eyeglass frames on a conveyor belt and RFC that excluded work at a production pace), mem. & recommendation adopted by 2014 WL 4205994 (E.D. N.C. Aug. 25, 2014), and Wagner v. Colvin, No. 5:15-CV-464-D, 2016 WL 4098685, at *3 n.7 (E.D. N.C. July 12, 2016) (explaining potential inconsistency between nut sorter job and RFC limited to non-production-rate work), mem. & recommendation adopted by 2016 WL 4059166 (E.D. N.C. July 27, 2016). See also Abernathy v. Saul, No. 3:20-CV-213-GCM, 2021 WL 1734353, at *4 (W.D. N.C. May 3, 2021) (“Even if the job of sorter were not obsolete, the court questions whether the Plaintiff would be able to perform such work, as it appears that the position is assembly-line work.”).
In response, the Commissioner argues that the nut sorter job “requires only observation of the nut meats on the conveyor belt,” and, therefore, presents no apparent conflict bringing it within the ambit of Pearson, 810 F.3d at 210. (Def.'s Mem. Supp. Mot. J. Pldgs. at 15.) However, for the reasons explained in Wagner, 2016 WL 4098685, at *3 n.7, this argument fails. The alternative job title listed in the DOT of “picking-belt operator” strongly suggests that the nut sorter does not merely observe nuts passing by on a conveyor belt, but actually removes and sorts nuts as they pass by on the conveyor belt. Id. The job description, when read in totality, also supports this inference. Accordingly, the Commissioner has failed to carry her burden as to the nut sorter job.
The addresser job is also problematic. According to the DOT, this job requires someone to “[a]ddress[] by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.” DICOT 209.587-010, 1991 WL 671797. As other courts have noted, this job is likely obsolete. Hardine v. Comm'r of SSA, No. 4:19-CV-147-DAS, 2021 WL 1098483, at *1 (N.D. Miss. Feb. 26, 2021) (“Anyone today can look at [the addresser job description] and know that few if any such jobs exist anywhere.”), vacated and remanded on other grounds sub nom., Hardine v. Kijakazi, No. 21-60226, 2022 WL 2070399 (5th Cir. June 8, 2022); Readv. Comm'r of SSA, No. 8:15-CV-2685-GJH, 2016 WL 2610117, at *4 (D. Md. May 6, 2016) (noting that the addresser job is “patently obsolete”), report & recommendation adopted, Order, ECF No. 20 (D. Md. June 3, 2016). In response, the Commissioner argues (i) Plaintiff failed to identify this problem during the hearing before the ALJ and (ii) the VE, having thorough training and experience in vocational counseling, testified that 15,000 addresser jobs exist in the national economy. (Def.'s Mem. Supp. Mot. J. Pldgs. at 16.) There are at least two reasons to reject these arguments. First, under Pearson, 810 F.3d at 209, ALJs have an “affirmative duty” to identify conflicts between a VE's testimony and the DOT. Plaintiff's counsel during the ALJ hearing was not obligated to raise this point. Second, the Commissioner fails to address the apparent conflict between the VE's testimony and the implausibility of that testimony based on the DOT definition for the addresser job. The VE might have explained that the current performance of the job is different from the DOT definition given modern technology; however, the ALJ did not elicit such explanation. Accordingly, the Commissioner has failed to carry her burden as to the addresser job.
Lastly, the surveillance system monitor job presents an apparent conflict because ALJ Adams found Plaintiff limited to jobs with instructions for simple, routine tasks and the surveillance system monitor job requires reasoning level three. This court has previously held that reasoning level three jobs apparently conflict with an RFC limitation to jobs requiring simple, routine, and repetitive tasks. Shook v. Saul, No. 5:20-CV-122-FL, 2021 WL 3074406, at *9 (E.D. N.C. June 7, 2021), mem. & recommendation adopted by 2021 WL 3064294 (E.D. N.C. July 20, 2021); Meadows v. Berryhill, No. 4:17-CV-105-FL, 2018 WL 3596064, at *2-4 (E.D. N.C. July 3, 2018), mem. & recommendation adopted by 2018 WL 3594980 (E.D. N.C. July 26, 2018). In response, the Commissioner (i) cites out-of-circuit cases predating the decisions from this court referenced above and (ii) says that Plaintiff's history of performing work at reasoning level three supports a finding of substantial evidence as to this job. The first point fails to address the extensive analysis offered by this court in its previous decisions, and the second point fails to appreciate that, by step five of the sequential evaluation process, it has been determined that Plaintiff cannot perform her past relevant work. Accordingly, the Commissioner has failed to carry her burden as to the surveillance system monitor job.
See Yurek v. Astrue, No. 5:08-CV-500-FL, 2009 WL 2848859, at *8 n.8 (E.D. N.C. Sept. 2, 2009), for a discussion of GED reasoning levels.
B. Evaluation of Fibromyalgia
Plaintiff also argues that ALJ Adams erred by failing to properly evaluate the functional effects of her fibromyalgia. Because it is unclear whether the ALJ complied with Arakas v. Comm'r of SSA, 983 F.3d 83, 96-97 (4th Cir. 2020), in evaluating Plaintiff's fibromyalgia, remand is appropriate.
In Arakas, the Fourth Circuit held that “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Arakas, 983 F.3d at 97. See also Newell v. Kijakazi, No. 2:20-CV-25-FL, 2021 WL 4350050, at *4 (E.D. N.C. Sept. 2, 2021) (explaining Arakas framework for evaluating fibromyalgia), mem. & recommendation adopted by 2021 WL 4344123 (E.D. N.C. Sept. 23, 2021). Here, ALJ Adams found fibromyalgia to be a severe impairment at step two (R. 18) and acknowledged during the RFC assessment that Plaintiff has alleged disability based, in part, on her fibromyalgia (R. 23). But the undersigned cannot determine how, if at all, ALJ Adams evaluated Plaintiff's allegations regarding the functional impact of her fibromyalgia. (See R. 23-30 (no discussion of fibromyalgia during the RFC assessment).) This is especially problematic because, at certain points in the RFC assessment, ALJ Adams relied on objective medical evidence (or the lack thereof), to discredit Plaintiff's allegations about her symptom severity. (See, e.g., R. 24 (“The objective medical record as a whole is more conservative than what the full allegations suggest.”), 25 (“For example, the prevalence of silent and benign strength, tone, gait, and sitting signs are consistent with a greater capacity for at least sedentary-level exertion.”).) It is not clear if ALJ Adams considered whether Plaintiff's fibromyalgia could explain the gap the ALJ identified between the objective medical evidence and Plaintiff's statements about her symptoms and functional abilities. Accordingly, the Commissioner should address this on remand.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #19] be DENIED, and the matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until June 26, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).