Opinion
4:22-CV-98-M
10-09-2023
JEFFERY PRICE, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JUDGE.
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-19, -22] pursuant to Fed.R.Civ.P. 12(c). Claimant Jeffrey Price (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. The time for responsive briefing 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, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB and for SSI on October 1,2020, alleging disability beginning July 14, 2020. (R. 20, 213-14). Both claims were denied initially and upon reconsideration. (R. 20, 80-119). A hearing before the Administrative Law Judge (“ALJ”) was held on February 14, 2022, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 37-79). On March 2, 2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 17-36). On July 25, 2022, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
The Title XVI application for SSI does not appear to be in the administrative record but there is no dispute it was filed and adjudicated, and the application itself is not material to the court's decision.
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., 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). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “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 v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-10 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred by failing to include in the RFC an allowance for time off task to address Claimant's pain and discomfort. Pl.'s Mem. [DE-20] at 4-6.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since July 14,2020, the alleged onset date. (R. 22). Next, the ALJ determined Claimant had the severe impairments of obesity; degenerative disc disease cervical, thoracic, and lumbar spine; degenerative joint disease left hip; and diabetes mellitus, and the Claimant's hypertension, hyperlipidemia, and anxiety disorder were not severe. (R. 22-23). However, at step three, the ALJ concluded these 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, Appendix 1. (R. 25-26). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in no limitation in understanding, remembering, or applying information and adapting or managing oneself, and a mild limitation in interacting with others and concentrating, persisting, or maintaining pace. (R. 24-25).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
Frequent climbing of ramps and stairs, but only occasional climbing of stepladders up to 4 vertical feet in height, with no climbing of higher [ladders] or of ropes or scaffolds of any height; frequent balancing, kneeling, and crouching; occasional stooping and crawling; and occasional exposure to vibration and high exposed places. The claimant can have work that frequently provides for two 15-minute breaks and one 30-minute break for each 8-hour shift work, occurring in such times as directed by the employer.(R. 27-31). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence of record. (R. 29). At step four, the ALJ concluded Claimant was capable of performing his past relevant work as a graphic designer. (R.31).
V. DISCUSSION
Claimant contends the ALJ erred by failing to include in the RFC an allowance for time off task to address Claimant's pain and discomfort, arguing that the ALJ's finding that Claimant can work eight hours a day and forty hours a week on a consistent and ongoing basis at the light exertion level is inconsistent with the medical evidence, a third party statement from Claimant's mother, and Claimant's testimony, and the ALJ's RFC limitation regarding breaks is inconsistent with the VE's testimony. Pl.'s Mem. [DE-20] at 4-6. Defendant contends the ALJ's RFC assessment reasonably considered Claimant's time off task and ability to stand and walk, and the RFC is consistent with the VE's testimony. Def.'s Mem. [DE-23] at 5-11.
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 968p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. “[T]he residual functional capacity ‘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' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). The ALJ must provide “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).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
Claimant relies on the treatment notes from Dr. Heck, a third party statement from Claimant's mother, and Claimant's own testimony to support his contention that he would be off task due to pain such that he could not perform the limited range of light work determined by the ALJ. Pl.'s Mem. [DE-20] at 5. However, the ALJ considered this evidence and explained why it did not warrant a more restrictive RFC, and the court's role is not to re-weigh evidence properly considered by the ALJ. See Hancock v. Astrue, 667 F.3d 470,472 (4th Cir. 2012) (citation omitted) (“[I]n reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.”).
The ALJ first summarized Claimant's testimony from the administrative hearing, including that his job as a graphic designer ended when it was outsourced to India, his most recent job performing light duty work ended due to absenteeism from back pain; he lived with his elderly mother and assisted her with dressing, shopping, cooking, and cleaning; he experienced back and hip pain; and his graphic designer job allowed him to take breaks as needed. (R. 27-28).
The ALJ next thoroughly discussed Dr. Heck's treatment notes. Claimant saw Dr. Heck from July to August 2020, and reported back pain, but the ALJ noted Claimant's examination was generally unremarkable and his gait was normal, x-rays demonstrated degenerative changes with osteoarthritis of the left him and questionable ankylosing spondylitis, and Dr. Heck prescribed Celebrex and a steroid taper and referred Claimant to rheumatology. (R. 28, 341-63). A follow up visit with Dr. Heck in January 2021 indicated Claimant's back and hip pain persisted, and Dr. Heck ordered an MRI of the thoracic and lumbar spine, which revealed mid/low cervical spondylosis, minimal thoracic spondylosis, and lumbar spondylosis with disc extrusion at ¶ 2-3, as well as multilevel osteophytes. (R. 28, 368-69, 372-79). However, when Claimant returned to Dr. Heck in May 2021, Claimant reported he was doing well with only minor complaints, his pain medication was effective by reducing his pain from a 5 to a 0.5 out of 10, he did not need his pain medications as often, and his pain was tolerable. (R. 28-29, 397-404). Finally, the ALJ discussed a January 2022 telehealth visit with Dr. Heck during which Claimant reported his back pain would come and go, his pain was reduced from a 5 to a 0-3 with medication, sitting for prolonged periods make his pain worse, he had difficulty stating up from a chair and walked stooped over, and he was applying for disability. (R. 29, 414-19).
The ALJ explained that Claimant's statements regarding the limiting effects of his symptoms were inconsistent with other evidence in the record. (R. 29). The ALJ disagreed with the state agency medical consultants' conclusions that Claimant could perform medium work, and determined that Claimant's musculoskeletal impairments, including his back pain, warranted a reduction to light exertional work with postural limitations. (R. 29). The ALJ cited evidence in the record, including the statement of Claimant's mother, (R. 30, 270-77), that Claimant drove, cared for his mother, cooked, cleaned, paid bills, and also noted that he generally had benign examinations, which supported that Claimant could perform a reduced range of light work. (R. 29-30); see Sturgill v. Kijakazi, No. 5:21-CV-064-DCK, 2022 WL 3021853, at *9 (W.D. N.C. July 29, 2022) (finding the ALJ properly considered Plaintiffs “daily activities” as one of a variety of factors when determining her RFC) (citing 20 C.F.R. § 404.1529(c)(3)(i)). Furthermore, Dr. Heck did not opine that Claimant was more limited than the ALJ determined, and Claimant's self-reports indicated that medication reduced his pain to a tolerable level. See Green v. As true, No. 3:1 O-CV-764, 2011 WL 5593148, at *4 (E.D. Va. Oct. 11, 2011) (“An individual does not have to be pain- free in order to be found ‘not disabled.'”) (citing Hays v. Sullivan, 907 F.2d 1453, 1457-58 (4th Cir. 1990)), adopted by 2011 WL 5599421 (E.D. Va. Nov. 17, 2011).
The court can trace the ALJ's reasoning in not providing an additional limitation for time off task, and C laimant points to no evidence the ALJ failed to consider, essentially asking the court to reweigh the evidence, which it cannot do. See David P. v. Kijakazi, No. CV 22-2745-BAH, 2023 WL 5984169, at *4 (D. Md. Sept. 14, 2023) (rejecting argument that the ALJ's decision should have included RFC provisions related to time off-task and unscheduled absences because there was no evidence the ALJ failed to consider and the argument amounted to a request to reweigh the evidence) (citing Fiske v. Astrue, 476 Fed.Appx. 526, 527 (4th Cir. 2012) (“This court does not reweigh evidence or make credibility determinations in evaluating whether a decision is supported by substantial evidence; ‘[w]here conflicting evidence allows reasonable minds to differ,' we defer to the Commissioner's decision.”)).
Lastly, Claimant's argument that the limitation in the RFC assessment to “work that frequently provides for two 15-minute breaks and one 30-minute break for each 8-hour shift work, occurring in such times as directed by the employer” was inconsistent with the VE's testimony also lacks merit. Claimant argues that “frequently” means two-thirds of the time so the RFC only requires such breaks two-thirds of the time, which conflicts with what the VE said was allowable. Pl.'s Mem. [DE-20] at 5-6. The VE testified as follows with respect to time off task for the graphic designer job the ALJ determined Claimant could perform: “In a normal day shift one's allowed 15 minutes in the morning around 10:00 and then 30 minutes at lunchtime, noon, and then another 15 at 2 in the afternoon.” (R. 77). The ALJ included in the RFC a limitation to work that “frequently” provides such breaks, the ALJ included that limitation in the hypothetical to the VE, (R. 75), and the VE testified that the graphic designer job allowed for such breaks on a normal day, (R. 76-77), which would more than accommodate the RFC limitation of frequently. Accordingly, the ALJ's RFC is not inconsistent with the VE's testimony.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings, [DE-19], be DENIED, Defendant's Motion for Judgment on the Pleadings, [DE-22], be ALLOWED, and the final decision of the Commissioner be AFFIRMED.
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 October 18, 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, e.g., 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. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will 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).