Opinion
C/A 6:22-cv-00063-BHH-KFM
10-04-2022
Terrian Pulley, 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for children's insurance benefits and supplemental security income benefits under Titles II and 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
Pertinent to the instant matter, the plaintiff filed applications for children's insurance benefits (“CIB”) and supplemental security income (“SSI”) benefits on December 11,2019, alleging that he became unable to work on September 3, 2010 (Tr. 275-86). The applications were denied initially (Tr. 85-136, 139-40) and on reconsideration (Tr. 143-80, 183-84) by the Social Security Administration. On September 9, 2020, the plaintiff requested a hearing (Tr. 211-12). On February 10, 2021, an administrative hearing was held during which the plaintiff, represented by counsel; the plaintiff's mother; and Catrinya Dunn, an impartial vocational expert, appeared and testified via telephone due to the COVID-19 pandemic before the administrative law judge (“ALJ”) assigned to the case (Tr. 34-70). On June 15, 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. 15-33). 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 24, 2021 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
The plaintiff's CIB application lists an alleged onset date of September 30, 2010 (Tr. 277).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) Born on December 11, 1990, the claimant had not attained age 22 as of September 3, 2010, the alleged onset date (20 C.F.R. §§ 404.102, 416.120(c)(4) and 404.350(a)(5)).
(2) The claimant has not engaged in substantial gainful activity since September 3, 2010, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: bipolar disorder, depression, post-traumatic stress disorder (PTSD), and neurodevelopmental disorders (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) 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. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels; however, he has non-exertional limitations. He is limited to Dictionary of Occupational Titles (DOT) mental reasoning level two, which is defined as apply common sense understanding to carry out detailed but uninvolved written or oral instructions; deal with problems involving a few concrete variables in, or from, standardized situations. He is limited to frequent interaction with the public, coworkers, and supervisors.
(6) The claimant has no past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on December 11, 1990, and was 19 years old, which is defined as a younger individual age 1849, on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has a limited education (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. §§ 404.1568 and 416.968).
(10) 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. §§ 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from September 3, 2010, through the date of this decision (20 C.F.R. §§ 404.350(a)(5), 404.1520(g), and 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. § 423(d)(1)(A), (d)(5) and § 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. §§ 404.1505(a), 416.905(a). Additionally, the regulations provide for payment of disabled children's insurance benefits based on the parent's work history if the claimant is 18 years old or older and has a disability that began before attaining age 22. Id. § 404.350(a)(5).
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 his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his 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 191-92.
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 19 years old on the alleged onset date, seeks CIB and SSI based upon his mental impairments. The plaintiff argues that the ALJ erred in the mental residual functional capacity (“RFC”) findings by failing to explain the plaintiff's social interaction limitations based upon improperly considered opinion evidence (doc. 14 at 19-21). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 15 at 7-12).
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 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 above, in evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels; however, he has non-exertional limitations. He is limited to Dictionary of Occupational Titles (DOT) mental reasoning level two, which is defined as apply common sense understanding to carry out detailed but uninvolved written or oral instructions; deal with problems involving a few concrete variables in, or from, standardized situations. He is limited to frequent interaction with the public, coworkers, and supervisors.(Tr. 20-21). The ALJ's decision included a detailed discussion of the RFC in light of the record evidence (Tr. 21-25). As noted, the plaintiff argues that the ALJ erred because the mental RFC explanation is incomplete with respect to the plaintiff's social interaction limitations based upon improperly considered opinion evidence (doc. 14 at 19-21). As an initial matter, the undersigned notes that the plaintiff's argument section submits the above argument in a perfunctory manner - providing only a passing reference to the record with little analysis of the issue raised (see docs. 14 at 19-21; 16 at 1-4). Indeed, the reply brief analysis is longer than the analysis section in the plaintiff's initial brief (compare doc. 14 with doc. 16). Courts have held that when a plaintiff raises an issue in a perfunctory manner, the issue is deemed waived. See Jacobus v. Comm'r of Soc. Sec., 664 Fed.Appx. 774, 777 n.2 (11th Cir. 2016) (noting that the plaintiff's “perfunctory argument” was arguably abandoned (citing Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining that simply stating an issue exists, without further argument or discussion, constitutes abandonment of that issue)); Rice v. Comm'r of Soc. Sec., 169 Fed.Appx. 452, 454 (6th Cir. 2006) (finding that issues raised in a perfunctory manner “without elaboration or legal argument” “unaccompanied by some effort at developed argumentation” were deemed waived (internal citations and quotation marks omitted)); Parms v. Colvin, C/A No. 1:13-cv-01002, 2015 WL 1143209, at *8 n.10 (M.D. N.C. Mar. 13, 2015) (noting that the “Court need not address . . . perfunctory arguments by counsel), memorandum and recommendation adopted by doc. 32 (M.D. N.C. Mar. 31,2015). Indeed, the court is not required to rummage through the administrative record to construct and present a well-supported position for the plaintiff. See Hayes v. Self-Help Credit Union, C/A No. 1:13-cv-00880, 2014 WL 4198412, at *2 (M.D. N.C. Aug. 22, 2014) (noting that “[i]t is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument (internal citations omitted)). Nevertheless, despite the perfunctory nature of the plaintiff's arguments, the undersigned will address the ALJ's consideration of the plaintiff's social interaction limitations that appears to be raised in the plaintiff's briefing.
In this case, relevant to the plaintiff's argument, the ALJ found that the plaintiff had “moderate” limitations in interacting with others, noting:
Although he has underlying bipolar disorder, depression, and PTSD, evidence shows, from a social interaction perspective, he spends time with others and he generally presents as calm and cooperative with normal behavior, and normal mood with no hallucinations or delusions (Exhibit B3F, p. 1; B5F, p. 5; B6F, p. 6; B8F, p. 3; B9F, p. 1; B13F, p. 1, 10). Based on these factors, the undersigned finds that the [plaintiff's] limitations in interacting with others are no greater than moderate in nature.(Tr. 20). In determining the plaintiff's RFC, the ALJ limited the plaintiff to a full range of work at all exertional levels, except that the plaintiff was limited to (pertinent to this argument) frequent interaction with the public, coworkers, and supervisors (Tr. 20-21). Despite these limitations, the plaintiff argues that the mental RFC assessment is flawed because the ALJ should have assigned additional social interaction limitations based on opinion evidence (doc. 14 at 19-21). The court disagrees.
Here, the ALJ specifically explained that the social interaction limitations in the mental RFC assessment were based upon reports by the plaintiff that he spent time with others, as well as examination findings noting the plaintiff was calm and cooperative with normal behavior and normal to fair mood on examination (Tr. 23 (citing Tr. 541, 561, 570, 579, 582, 613, 622)). Indeed, the plaintiff's mother submitted a letter noting that the plaintiff lived with her and spent time helping his uncle (Tr. 447), and his function report indicated that the plaintiff had no problem with authority figures and was “very respectful” (Tr. 354). Likewise, as noted by the ALJ, the plaintiff's mental status examinations were relatively normal, noting on two occasions guarded behavior or angry mood (Tr. 543-44, 687), but otherwise noting that the plaintiff was calm or cooperative (Tr. 495, 541,554, 562, 570, 575 (good ability to relate to others), 583, 588, 590, 593-94, 597, 609, 611, 621-22, 628-29, 685, 687, 728, 729, 730, 731,732, 734, 735, 736, 737). On April 29, 2019, John C. Whitley, III, Ph.D., noted that the plaintiff may do best with solitary work, but also opined that the plaintiff appeared to be exaggerating his level of dysfunction and was constantly texting on his phone during the examination (Tr. 579-80). In May 2020, Joseph K. Hammond, Ph.D., noted that the plaintiff's interpersonal style did not seem adequate for dealing with the general public or for maintaining adequate relationships with coworkers or supervisors (Tr. 604-06), but examination findings dated one month later by the plaintiff's treating mental health provider were normal (Tr. 608). The ALJ concluded that these examination findings were consistent with the RFC's limitation to frequent public, coworker, and supervisor interaction (Tr. 20-25). As such, the ALJ's social interaction limitations are supported by substantial evidence and should be affirmed.
Conflated with the plaintiff's arguments regarding the mental RFC social interaction limitations, the plaintiff also asserts that the ALJ failed to reconcile persuasive opinion evidence from state agency reviewers Rebekah Jackson, Ph.D., and Debra C. Price, Ph.D, as well as treating provider Nathanael Benitez, D.O., and consultative examiner Dr. Whitley (doc. 14 at 20-21). Here, the plaintiff does not argue that the ALJ erred in finding these opinions persuasive; instead, the plaintiff argues that the ALJ erred by not reconciling the opinions he found persuasive. The court disagrees.
Pertinent to the plaintiff's social interaction limitations, on March 7, 2019, Dr. Benitez opined that the plaintiff had a good ability to relate to others (Tr. 575). On April 29, 2019, Dr. Whitley opined that the plaintiff “may function best with more solitary work task[s] in light of his propensity for agitation” (Tr. 580). Dr. Jackson, on initial administration review of the plaintiff's case, on May 30, 2019, noted that the plaintiff would have moderate limitations in his ability to interact appropriately with the general public as well as getting along with coworkers or peers without exhibiting behavioral extremes, opining that the plaintiff could “respond appropriately to supervision, co-workers and usual work situations, but would perform best in settings that do not require on-going interaction with the public” (Tr. 96). On May 28, 2020, Dr. Price opined, on reconsideration of the plaintiff's case, that the plaintiff would be moderately limited in his ability to interact with the general public, to accept instructions and respond appropriately to criticism from supervisors, to get along with coworkers or peers without exhibiting behavioral extremes, to maintain socially appropriate behavior, and to adhere to basic standards of neatness and cleanliness (Tr. 116). Dr. Price opined that the plaintiff could “interact appropriately with co-workers and supervisors, but is not suited for work with the general public” (Tr. 117).
The ALJ considered the opinion evidence evaluating the plaintiff's social interaction limitations, noting:
From a social interaction perspective, the [plaintiff] spends time with others and, despite his history of bipolar disorder and anger issues, the [plaintiff] generally presents as calm and cooperative with normal behavior and normal to fair mood (Exhibit B3F, p. 1; B5F, p. 5; B6F, p. 6; B8F, p. 3; B9F, p. 1; B13F, p. 1, 10). Based on this frequently reported and baseline level of functioning, the undersigned determines that the opinion of state agency reviewers, treating physician Dr. Benitez, and Dr. Whitley are most consistent with the record and supported by clinical indicia (Exhibit B8A; B14A; B7F; B8F).Tr. 23). The ALJ went on to explain:
Despite having bipolar disorder with depressive symptoms, PTSD, and a history of neurodevelopmental disorders, records, testimony, and empirical data indicate the [plaintiff] is independent and able to conduct simple affairs in a competent fashion. For example, in addition to being a workout enthusiast and avid runner, the [plaintiff] understands simple basic math; further, he can shop and count change, drive a car, and use the internet (Exhibit B4E; B7F, p. 1; B8F, p. 2-3; B9F, p. 1). The above analysis indicates that he is able to adequately communicate with others, including strangers in unfamiliar settings; understand, comprehend, and follow basic instructions; and interact in a vocationally and socially reasonable manner, under the interaction limitations in the RFC.(Tr. 24-25).
Despite the foregoing explanation, the plaintiff argues that the ALJ's mental RFC assessment conflicts with the opinions of these doctors as well as that the ALJ did not cite to record evidence supporting his decision. However, the plaintiff appears to request that this court reweigh the evidence considered by the ALJ and find that the ALJ's conclusion was in error - which is beyond the purview of substantial evidence review. Moreover, as quoted above, the ALJ referenced the plaintiff's function reports and treatment records in explaining how he determined that the plaintiff could frequently engage with the public, coworkers, and supervisors (see Tr. 21-25). In light of the foregoing, substantial evidence supports the ALJ's evaluation of the plaintiff's social interaction limitations.
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 social interaction 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.
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
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).