Opinion
C. A. 9:21-cv-01481-MBS-MHC
07-27-2022
Natasha Danielle Tapp, Plaintiff, v. Kilolo Kijakazi,[1] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Natasha Danielle Tapp (Tapp) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying her claim for Supplemental Security Income (SSI) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 8.
Tapp filed a claim for SSI on December 17, 2018, alleging disability caused by physical and mental conditions. R.pp. 160-71, 189. After her claim was denied at the initial and reconsideration levels of review, an administrative hearing was held on September 16, 2020, at which Tapp and a Vocational Expert testified. R.pp. 30-60. On October 23, 2020, the ALJ issued a decision finding that Tapp was not disabled under the Act. R.pp. 12-25. After the Appeals Council denied Tapp's request for review, the ALJ's decision became final. R.pp. 1-5. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceeds his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. DISCUSSION
A. ALJ's findings
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Tapp was disabled from the alleged onset date of August 10, 2009. The ALJ found, in pertinent part:
1. The claimant has not engaged in substantial gainful activity since December 17, 2018, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: headaches, affective disorder, anxiety disorder, and borderline intellectual functioning (20 CFR 416.920(c)).
3. 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). In particular, the claimant can lift or carry up to 20 pounds occasionally and 10 pounds frequently. She can stand or walk for approximately 6 hours of an 8-hour workday and sit for approximately 6 hours of an 8-hour workday with normal breaks. The claimant can occasionally climb ladders, ropes and scaffolds, and crawl; and frequently climb ramps and stairs, balance, stoop, kneel, and crouch. Bilateral handling and fingering can be performed frequently within the exertional level. She can occasionally be exposed to a loud and very loud noise environment, but will perform best in a very quiet to moderate noise environment. She can occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights. The claimant can concentrate, persist and maintain pace to understand, remember and carry out unskilled, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), and to carry out detailed, but uninvolved, written or oral instructions with few concrete variables in or from standardized situations. She can adapt to occasional work place changes. The claimant can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people. She can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. She can respond appropriately to supervision.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on September 11, 1985 and was 33 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. 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 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since December 17, 2018, the date the application was filed (20 CFR 416.920(g)).R.pp. 14-25.
B. Tapp's contentions of error
Tapp argues the ALJ “committed reversible error” in his RFC assessment in two ways. First, she contends that evidence of migraines, depression, and anxiety prevent her from sustaining work on a regular basis. ECF No. 11 at 12-15. Second, Tapp argues that her physical impairments cause functional limitations which prevent her from performing light work. ECF No. 11 at 15-16. Tapp has failed to show any error for the following reasons.
First, she does not clearly articulate how the ALJ erred or offer any meaningful argument as to why remand is warranted. Tapp does not assert that the ALJ's RFC determinations were unsupported by substantial evidence. Instead, she recites evidence in the record and then makes conclusory statements suggesting this evidence proves the ALJ erred and/or that she is disabled. See, e.g., ECF No. 11 at 14 (“This evidence confirms that Mrs. Tapp cannot sustain substantial gainful work activity on [a] regular and sustained basis because she would be absent from work an excessive amount of time due to the frequency of her migraines.”). It is unclear whether Tapp is this is evidence that the ALJ failed to consider, misconstrued, improperly analyzed, or otherwise inappropriately handled in the decision. There are no citations to case law that direct the Court toward what purported errors the ALJ committed, nor are there citations to any regulations of which the ALJ allegedly ran afoul. See ECF No. 11 at 11-16; see also Brown, 873 F.3d at 267 (noting, to warrant remand, a claimant must either show the ALJ has incorrectly applied a legal standard or show the ALJ's factual findings are not supported by substantial evidence). Rather, it appears Tapp is suggesting the Court accept her interpretation over the ALJ's and read the evidence differently. That is not the role of this Court. See Hancock, 667 F.3d at 472 (noting a reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ).
Second, to the extent Tapp may be arguing that the ALJ failed to consider the evidence cited in her brief, such argument fails. Indeed, much of the evidence cited by Tapp was specifically cited in the ALJ's opinion. Compare R.pp. 18-24 with ECF No. 11 at 13-15. Tapp does not explain or present any substantive argument on how the ALJ omitting certain treatment notes-to the extent that the ALJ even did so-impacted the ALJ's RFC analysis and ultimate decision. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting Plaintiff has the burden to show that he has a disabling impairment). That is, Tapp has not shown error in the ALJ's recitation, characterization or evaluation of the evidence. See Jackson v. Astrue, No. C/A 8:08-2855-JFA-BHH, 2010 WL 500449, at *10 (D.S.C. Feb. 5, 2010) (“[A]n ALJ is not required to provide a written evaluation of every piece of evidence, but need only ‘minimally articulate' his reasoning so as to ‘make a bridge' between the evidence and his conclusions.” (citations omitted)). To the extent the ALJ did not fully recount the evidence as Tapp may have preferred or failed to mention evidence, the mere omission of some evidence does not require remand. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” (quotation marks and citation omitted)); Russell v. Chater, 60 F.3d 824, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished) (rejecting an argument that the ALJ's analysis was insufficiently specific and noting Fourth Circuit precedent “does not establish an inflexible rule requiring an exhaustive point-by-point discussion in all cases”); see also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (“[A]n ALJ is not required to discuss all the evidence submitted, and an ALJ's failure to cite specific evidence does not indicate that it was not considered.” (citation omitted)).
Third, as the Commissioner details in his brief, the ALJ produced a thorough decision that reviewed the relevant evidence in detail, including evidence Tapp appears to assert was ignored. See ECF No. 12 at 8-12. Upon review of the decision and the record, the Court agrees with the Commissioner. The ALJ discussed the relevant evidence in sufficient detail and explained the reasoning which supported his determination. See Smith v. Colvin, No. 6:15-CV-1750-PMD-KFM, 2016 WL 2619474, at *3 (D.S.C. May 9, 2016) (“[T]he ALJ's decision shows he carefully considered all the evidence in the record and, where appropriate, even made findings that favored [the claimant].”). Contrary to what Tapp appears to suggest, the ALJ summarized and reasonably considered the record evidence relating to Tapp's mental and physical impairments-Tapp just disagrees with the ALJ's ultimate conclusion. That is not a valid reason for remand.
To the extent Tapp may be arguing that other evidence in the record supports her position, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“We must sustain the ALJ's decision, even if we disagree with it, provided the determination is supported by substantial evidence . . . [t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). The substantial evidence standard is abundantly clear: it is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” (citation omitted)). Here, Tapp only presents disagreement with the ALJ's findings and fails to show reversible error. Consequently, the undersigned recommends affirming the ALJ's decision.
IV. RECOMMENDATION
It is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).