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Crook v. Kijakazi

United States District Court, D. South Carolina, Greenville Division
Jan 30, 2023
Civil Action 6:22-01038-RBH-KFM (D.S.C. Jan. 30, 2023)

Opinion

Civil Action 6:22-01038-RBH-KFM

01-30-2023

Vance Crook, 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 disability 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

The plaintiff filed applications for disability insurance (“DIB”) and supplemental security income (“SSI”) benefits in November 2018, alleging disability beginning December 23, 2016, due to degenerative disc disease, hypertension, and anxiety (Tr. 117, 287-89, 299-315). The Social Security Administration denied the plaintiff's applications initially (Tr. 80-92) and on reconsideration (Tr. 95-110). On January 12, 2021, after a hearing, the administrative law judge (“ALJ”) issued an unfavorable decision (Tr. 114-27). However, the recording of that original hearing was inaudible, so the Appeals Council remanded for a new hearing (see Tr. 21). The ALJ held a second hearing on September 15, 2021, at which the plaintiff and an impartial vocational expert (“VE”) testified (Tr. 37-79). The ALJ considered the case de novo and on September 24, 2021, found the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 21-31). 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 December 1, 2021 (Tr. 10-12). The plaintiff then filed this action for judicial review.

The plaintiff filed a previous application for benefits that was denied on September 7, 2017 (Tr. 21, 39-40). The ALJ interpreted the plaintiff's current application as an implied request for reopening and found no statutory basis on which to grant his request (Tr. 21).

Both hearings were held by telephone due to ongoing COVID-19 precautions (Tr. 39).

In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
(2) The claimant has not engaged in substantial gainful activity since September 8, 2017, 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: degenerative disc disease of the lumbar spine and obesity (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 light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except he should never perform climbing of ladders, ropes, or scaffolds; can perform occasional climbing of ramps and stairs; can perform occasional stooping and crouching; and frequent not constant reaching in the front with bilateral upper extremities.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on February 27, 1969, and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age on February 27, 2019 (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has at least a high school education (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(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, 404.1569a, 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from September 8, 2017, through the date of this decision (20 C.F.R. §§ 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).

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) has an impairment that prevents 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 192.

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 was 52 years old at the time of his second hearing (Tr. 41). He has a high school education and previously worked as a brick mason and in a metal fabrication shop (Tr. 45-47, 381). The plaintiff stopped working in December 2016 when his back problems kept him from maintaining a regular schedule (Tr. 45-47). He alleges disability due to back injury, anxiety, blood pressure, and arthritis in his back (Tr. 380). The plaintiff alleges his back pain makes him “immobile,” and he spends all day in bed and only leaves the house to go to doctors' appointments (Tr. 392-93). The plaintiff argues: (1) the ALJ erred by failing to properly explain her consideration of the state agency psychological consultants' opinions and why she did not include mental limitations in the residual functional capacity (“RFC”) assessment; (2) the ALJ erred by failing to account for the plaintiff's post-laminectomy syndrome and in the evaluation of the plaintiff's subjective complaints in the RFC assessment; and (3) the ALJ was not properly appointed and thus lacked legal authority to adjudicate the plaintiff's case (doc. 10 at 13-36). The undersigned agrees that remand is warranted based on the ALJ's consideration of the plaintiff's mental impairments and thus does not address the plaintiff's remaining arguments.

Mental Impairments

The plaintiff asserts the ALJ failed to properly account for his mental impairments in the RFC assessment or properly evaluate the state agency psychologists' medical opinions (doc. 10 at 21-27). The Commissioner counters that substantial evidence supports the ALJ's evaluation of the plaintiff's mental impairments, including her consideration of the relevant medical opinions and, alternatively, that any error was harmless (doc. 11 at 15-21).

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 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.

In addition, for applications filed on or after March 27, 2017, such as the plaintiff's, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. §§ 404.1520c, 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. §§ 404.1527, 416.927 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. at §§ 404.1520c(a), 416.920c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. §§ 404.1520c(b), (c); 416.920c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. Id. §§ 404.1520c(a), (b)(2); 416.920c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).

Here, the plaintiff contends the ALJ failed to properly articulate her consideration of the supportability factor when evaluating opinions from the state agency psychological consultants (doc. 10 at 21-24). At both the initial review and reconsideration levels, the state psychological consultants found the plaintiff's anxiety and depression were severe mental impairments (Tr. 85-87, 102-05). Regarding the paragraph B criteria, the state psychological consultants found the plaintiff exhibited mild or moderate limitations in his ability to understand, remember, or apply information and moderate limitations in his abilities to interact with others, concentrate, persist, or maintain pace, and adapt or manage oneself (Tr. 85-86, 89-91, 103). Within those areas, the agency consultants specifically found the plaintiff could understand and follow short, simple instructions but was moderately limited in his ability to carry out detailed instructions (Tr. 89, 107-08). They found the plaintiff could sustain attention to complete a small variety of tasks at a semi-rapid pace but also found he was moderately limited in his abilities to maintain attention and concentration for extended periods and work in coordination with or in proximity to others without being distracted by them (Tr. 90, 107-08). On reconsideration, the agency psychological consultant noted the plaintiff could maintain concentration, persistence, and pace to stay on tasks for two-hour periods during a typical eight-hour workday, as required to perform simple, routine, repetitive tasks (Tr. 108). The initial review agency consultant found the plaintiff could interact appropriately with others but also that he was moderately limited in his ability to interact appropriately with the general public (Tr. 90). On reconsideration, the agency consultant found the plaintiff could tolerate coworkers and supervisors in a nonpublic setting in which interactions were brief, superficial, and task-oriented with only incidental contact with the general public (Tr. 108). Finally, the agency consultants found the plaintiff could adapt to routine changes in a non-production oriented workplace setting but was moderately limited in his ability to respond appropriately to changes in the work setting (Tr. 90-91, 109).

When addressing these opinions in the RFC explanation, the ALJ found:

[T]he mental consultants' opinion that the claimant has a severe impairment . . . is less persuasive, as it is not supported by the objective evidence documented throughout the record, including the consultative examiner's opinion that the claimant does not have any psychological limitations or the fact that he has typically had normal mental status upon presenting for examination and treatment.
(Tr. 29).

The plaintiff contends the ALJ did not articulate how she considered the psychological consultants' supporting explanations and thus her explanation only relates to consistency, not supportability (doc. 12 at 6). According to the regulations, the supportability factor means “[t]he more relevant the objective medical evidence and other supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative finding(s), the more persuasive the medical opinions or prior administrative finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The Commissioner argues that, because the state agency psychological consultants rely entirely on the record evidence rather than their own examinations of the plaintiff, the ALJ articulated her consideration of the supportability factor by explaining that some record evidence relied on by the agency consultants did not support their conclusions (doc. 11 at 19).

In this case, the ALJ's evaluation of the plaintiff's mental impairments really took place at step two of the sequential evaluation when she discussed why those impairments were not severe (Tr. 24-25). There, the ALJ summarized the plaintiff's history of opioid dependency, for which he had recently started suboxone therapy; anxiety; and the report from his psychological consultative examination (Tr. 24). Regarding the consultative psychological examination, the ALJ accurately stated the examiner's findings:

[The plaintiff] had appropriate eye contact; did not have any comprehension issues; had normal thought content. He could do simple calculations and provide information about current events. He was fully oriented and did not report any social difficulties. The examiner felt he is likely able to understand, retain, and follow information, can sustain attention to simple and repetitive tasks. The examiner noted he has no social difficulties but has minimal ability to tolerate stress and pressure.
(Id.; compare Tr. 712-17). She also included a brief reference to the plaintiff's visit to the emergency department in October 2017 for suicidal ideation (Id.). The ALJ noted the plaintiff received “little ongoing treatment for mental impairments” and that “the record as a whole suggests [his mental impairments] cause nothing more than mild limitations” (Id.). The ALJ also noted the plaintiff's mostly normal mental status examinations and that he declined additional behavioral health or counseling treatment (Id.). Citing the consultative psychological examination, the ALJ found the plaintiff had only mild limitations in each of the four functional areas (Tr. 25 (citing Tr. 712-17)).

Notably, the plaintiff reports throughout the record that was told he could not take both his anxiety medication and his pain medication at the same time, so he chose to continue taking pain medication and to essentially stop treating his anxiety (see, e.g., Tr. 69-70, 713).

However, nowhere in the decision did the ALJ explain why the plaintiff's mild limitations in the paragraph B criteria did not translate to functional limitations in the RFC assessment, nor did she address the glaring inconsistencies between the consultative examiner's findings and those of the state agency psychologists. Couched in terms of the supportability factor for considering medical opinions, the ALJ failed to include any discussion of the state agency psychologists' findings beyond their opinions that the plaintiff's mental impairments were severe. She did not discuss the agency psychologists' mental RFC findings, nor did she reconcile disagreements between the initial review and reconsideration psychologist's opinions or explain why the evidence relied on by either did not support those opinions. In addition, the ALJ stated the state agency psychologists' opinions were not supported by the consultative examiner's opinion, without further explanation, but then found the consultative examiner's opinion only somewhat persuasive, despite relying on it heavily to find the plaintiff's mental impairments non-severe (Tr. 29).

In sum, although she found the plaintiff's mental impairments not severe at step two, the ALJ was legally obligated to consider any potential functional limitation resulting from those impairments in the RFC analysis and to fully articulate whether, why, and how the state agency psychologists' medical opinions were supported by the evidence on which they relied. See 20 C.F.R. §§ 404.1520(e), 416.920(e), 404.1545(a)(2), 416.945(a)(2) (stating the RFC assessment must account for all the claimant's impairments, including those that are not severe or fail to meet a listed impairment); Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (requiring “a narrative discussion describing how the evidence supports each conclusion”); Anderson v. Kijakazi, C. A. No. 2:20-3237-MBS, 2022 WL 391549, at *3-5 (D.S.C. Feb. 9, 2022) (finding “the ALJ erred when he omitted from his RFC assessment a limitation that reflects his finding of Plaintiff's mild mental impairments and failed to state why any such limitation is not necessary”) (emphasis in original). The ALJ failed to do so and, thus, the undersigned cannot find her opinion supported by substantial evidence.

The Commissioner asserts this error is harmless because two of the jobs the ALJ found the plaintiff capable of performing were simple, low interaction jobs that comport with the state agency psychologists' findings. See Routing Clerk, Dictionary of Occupational Titles (“DOT') No. 222.687-022, 1991 WL 672133 (reasoning level 2 and interaction level 8 (“not significant”)); Marker, DOT No. 209.587-034, 1991 WL 671802 (same); Lawrence v. Saul, 941 F.3d 140, 142-44 (4th Cir. 2019) (finding no conflict between the DOTs definition of Level 2 reasoning and a limitation to “simple, routine, repetitive tasks”); Smith v. Berryhill, No. 6:17-2029-JMC-KFM, 2018 WL 6535097, at *15 (D.S.C. Sept. 19, 2018) (“Likewise, the DOT describes the level of interaction with people as “not significant,” which is the lowest level of social interaction described in the DOT and consistent with the RFC's limitation to only occasional interaction with supervisors, co-workers, and the public.”). However, both state agency psychological consultants also found the plaintiff moderately limited in his ability to concentrate, persist, and maintain pace (Tr. 86, 90-91, 103-04, 107-08) and the VE testified all work would be precluded if the hypothetical individual meeting the plaintiff's RFC were off-task more than ten percent of the day (Tr. 74, 76). Without further explanation of the plaintiff's mental impairments and reconciliation of the inconsistencies in the record, the undersigned cannot determine whether any error is in fact harmless. See Britt v. Saul, 960 Fed.Appx. 256, 262 (4th Cir. 2021) (finding remand may be appropriate where the ALJ “fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the [ALJ's] analysis frustrate meaningful review.”). Accordingly, this matter should be remanded for further consideration.

Remaining Allegations of Error

In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address any remaining allegations of error. The ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, should the district court adopt this recommendation and remand the matter, the ALJ should also take into consideration the plaintiff's remaining allegations of error.

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the undersigned recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), and remanded to the Commissioner for further proceedings as discussed above.

IT IS SO RECOMMENDED.

The attention of the parties is directed to the important notice on the following page.

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, Room 2300
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).


Summaries of

Crook v. Kijakazi

United States District Court, D. South Carolina, Greenville Division
Jan 30, 2023
Civil Action 6:22-01038-RBH-KFM (D.S.C. Jan. 30, 2023)
Case details for

Crook v. Kijakazi

Case Details

Full title:Vance Crook, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social…

Court:United States District Court, D. South Carolina, Greenville Division

Date published: Jan 30, 2023

Citations

Civil Action 6:22-01038-RBH-KFM (D.S.C. Jan. 30, 2023)