Opinion
C/A 0:21-cv-2890-DCC-PJG
08-23-2022
John Martin Tirico, Jr., Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
[ ] Affirm [X] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[X] Supplemental Security Income (“SSI”): Plaintiff's age at filing: 60 years old
[ ] Disability Insurance Benefits (“DIB”)
[ ] Other:
Application Dated: December 5, 2019
Plaintiff's Year of Birth: 1959
Plaintiff's alleged onset Dated: September 1, 2016
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(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) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: March 30, 2021
In applying the requisite five-step sequential process, the ALJ found:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes [X] No
Step 2: [X] Plaintiff has the following severe impairments:
[Degenerative disc disease.
[ ] Plaintiff does not have a severe impairment.
Step 3: [X] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
Claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except that the claimant can frequently sit, stand, walk, stoop, kneel, crouch, crawl, and climb ramps and stairs, but only occasionally climb ladders, ropes, or scaffolds. The claimant must avoid concentrated exposure to workplace hazards.
[ ] Plaintiff could return to his/her past relevant work, as performed.
Date of Appeals Council decision: July 13, 2021
Part IV-Standard of Review
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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “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.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154 (citation omitted). 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].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issues for Judicial Review
Plaintiff asserts the following issues for this judicial review:
A. Remand is Required Because the ALJ Improperly Relied on Mr. Tirico's Ability to Perform an Occupation That Did Not Qualify as Past Relevant Work.
B. Remand Is Required Because the ALJ Failed to Make Findings Regarding Mr. Tirico's Documented Cane Use.
C. Remand Is Required Where the ALJ Failed to Fully Address the Medical Opinion Evidence of Record.
D. The Appointment of Andrew Saul As a Single Commissioner of SSA Who Was Removable Only For Cause and Would Serve a Longer Term than that of the President Violated Separation of Powers. Accordingly, the Decision in this Case, by an ALJ and Appeals Council Judges Who Derived Their Authority from Mr. Saul, Is Constitutionally Defective.(Pl.'s Br., ECF No. 15.)
Oral Argument:
[ ] Held on.
[ ] Not necessary for recommendation.
Summary of Reasons
A. Past Relevant Work
A claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. See Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016) (“Once the ALJ has determined the claimant's RFC, the ALJ then proceeds to step four, where the burden rests with the claimant to show that he is not able to perform his past work.”); 20 C.F.R. § 416.920(a)(4). “Past relevant work” is defined by the regulations as “work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. § 416.960(b)(1); see also 20 C.F.R. § 416.974 (discussing substantial gainful activity (“SGA”)). According to the Social Security Administration's regulations, “[g]enerally, in evaluating [a claimant's] work activity for substantial gainful activity purposes, our primary consideration will be the earnings [a claimant] derive[s] from the work activity.” 20 C.F.R. § 416.974(a)(1). Further, “[g]enerally, if [a claimant] worked for substantial earnings, [the Administration] will find that [a claimant is] able to do substantial gainful activity.” Id.
During his hearing before the ALJ, Plaintiff described a number of jobs he had held in the fifteen years prior to his disability claim. He had worked at two different pizza restaurants, at a ceramic company, and with a cleaning service. (Tr. 35-36.) After hearing Plaintiff's testimony about his work history, the ALJ confirmed with the vocational expert the information she had for each of those jobs, noting as follows:
I have the mixing ceramics job at SGA for just under two months. I have the pizza job at SGA for what, five to six months. And then I have the cleaning, janitorial job at SGA for four to five months....[N]o sorry, for six months, I think he said he worked there for four or five months.(Tr. 36.) Later, the ALJ eliminated the jobs of dishwasher, pizza baker, and clay maker as past relevant work because either Plaintiff did not make enough money in those positions or did not stay long enough to learn the job. (Tr. 45-46.) The ALJ then stated, “[T]hat leaves us with the janitor which was SGA for six months and SVP:2. That's long enough to learn it, 30 days or less.” (Tr. 46.) After hearing from Plaintiff regarding the duties he performed as a janitor, the ALJ found Plaintiff's work as a janitor to be past relevant work. (Tr. 47.) The ALJ then described a hypothetical individual to the vocational expert, and the vocational expert opined that the hypothetical individual could perform Plaintiff's past work as it was actually performed. (Id.)
Plaintiff now argues that the ALJ erred in considering his janitorial work as past relevant work. Specifically, he argues that he earned $6,066 from Kellys Professional Cleaning according to earnings reports. (Pl.'s Br. at 3, ECF No. 15 at 3; Pl's Reply Br. at 1-2, ECF No. 17 at 1-2.) Then, according to his work history report, he worked as a janitor for seven months-from October 2010 to April 2011. (Tr. 201.) If Plaintiff made those earnings over seven months, then his monthly income was approximately $867, which was below the substantial gainful activity level of $1000 in 2010 and 2011, and his work as a janitor should not qualify as past relevant work.
Plaintiff indicated his work as a janitor was for “IFS cleaning.” (Tr. 201.)
In Plaintiff's initial brief, he argued the $6,066 should be divided by twelve months, which results in a monthly income of $505.50 per month, but he seems to have abandoned that calculation in his reply brief. (See Pl.'s Br. at 2-4, ECF No. 15 at 2-4.)
The parties agrees that the substantial gainful activity amounts for 2010 and 2011 was $1,000 per month. That number is set by regulation and can be found at http://www.ssa.gov/oact/cola/sga.html. See also 20 C.F.R. § 416.974(b)(2).
The Commissioner calculates Plaintiff's monthly income slightly differently. The Commissioner uses the same $6,066 from Kellys Professional Cleaning but claims that number should be divided by six months-again, using Plaintiff's work history report that he worked as a janitor from October 2010 to April 2011. (Def.'s Br. at 26, ECF No. 16 at 26.) Based on that calculation, Plaintiff's monthly income was $1,011, which qualified as substantial gainful activity in 2010 and 2011.
The Commissioner further notes that the Work History Assistant Tool report does not show that Plaintiff's earnings from Kellys Professional Cleaning were below the monthly substantial gainful activity amount while other earnings have that designation in the Work History Assistant Tool report. (Def.'s Br. at 26, ECF No. 16 at 26) (citing Tr. 196). However, the court cannot find the Work History Assistant Tool report determinative in light of some of the ALJ's findings. In particular, the ALJ found Plaintiff's work for Low Country Pizza was not substantial gainful activity because he earned about $6,000 over ten months. (Tr. 46.) Yet, the Work History Assistant Tool report does not designate Plaintiff's Low Country Pizza earnings as under the monthly substantial gainful activity amount. (See Tr. 196.) That discrepancy leads the court to conclude that the Work History Assistant Tool report is not dispositive of this issue.
The parties both rely on Plaintiff's statement in his work history report that he worked as a janitor from October 2010 to April 2011, but their calculations yield different results based on whether they include the start and end months in their entirety when counting how many months Plaintiff worked as a janitor. The difference between six and seven months is the difference between Plaintiff's job as a janitor being properly considered past relevant work or not.
It is not clear from the ALJ's decision how she arrived at her conclusion that Plaintiff's janitor position constituted past relevant work. During the hearing, the ALJ initially indicated that Plaintiff had worked as a janitor for four or five months, but then she concluded he had worked as a janitor for six months. (See Tr. 36, 46.) She did not cite a source during the hearing or in the decision. Indeed, in the decision, the ALJ offered only the following conclusory allegation: “The claimant performed these jobs within the past 15 years, at earnings which reached the level of substantial gainful activity, and long enough to learn the work (Exhibit B6D).” (Tr. 22.) The document the ALJ cites in support of that statements gives Plaintiff's yearly earnings from 1975 through 2016-it indicates he made $6,066 in 2010 and $3,305.73 in 2011. (Tr. 195.)
To further confuse the issue, the only year for which Plaintiff has reported earnings from Kellys Professional Cleaning is 2010. (Tr. 191-92, 196.) The money he earned in 2011 came from different companies, Signum, LLC and SSIS, Inc. (Tr. 191-92, 196.) Thus, there is potentially an error in Plaintiff's report that he worked as a janitor from October 2010 to April 2011. Unfortunately, the ALJ did not clear up that discrepancy in the hearing or the decision.
There is no indication that these companies are part of the same entity. Kellys is located in Mauldin, SC; SSIS, Inc. is located in Summerville, SC; and Signum, LLC is located in Lexington, SC. (See Tr. 191-92.)
As set forth above, there are multiple evidentiary gaps or inadequacies in the record regarding Plaintiff's past work, which lead the court to find that the ALJ did not adequately develop the record. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.”); Bell v. Chater, 57 F.3d 1065, 1995 WL 347142, at *4 (4th Cir. June 9, 1995) (Table) (“[T]he ALJ is not required to function as the claimant's substitute counsel, but only to develop a reasonably complete record.”). As such, undersigned cannot say that substantial evidence supports the ALJ's conclusion that Plaintiff's janitorial work qualified as past relevant work. See Burnett v. Saul, No. 4:19-00969-DCN, 2020 WL 5793356, at *8 (D.S.C. Sept. 29, 2020) (finding substantial evidence did not support the ALJ's finding of past relevant work where there were not exact dates of employment in the record, and it was unclear if the claimant was employed for over six months, but the ALJ failed to develop the record in that regard). In this case, that question was of paramount importance as Plaintiff had no other past relevant work, and due to his age, if there was no past relevant work that he could perform, Plaintiff argues he would have been deemed disabled.
For the above reasons, the court is constrained to recommend that this matter be remanded. See McCrea v. Astrue, 407 Fed.Appx. 394, 397 (11th Cir. 2011) (finding “that [where] the record lacks substantial evidence to support the ALJ's finding that [the claimant] could perform past relevant work as a janitor, remand is appropriate”).
B. Remaining Issues
To the extent that Plaintiff seeks a reversal and remand for an award of benefits, the court finds that, contrary to Plaintiff's arguments, his entitlement to benefits is not wholly established. Accordingly, the court recommends that this matter should be remanded for further development and consideration of the above-discussed evidence by the Commissioner. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was “wholly established” on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) (“Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court.”) (citing Edwards v. Bowen, 672 F.Supp. 230, 237 (E.D. N.C. 1987)); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) (“Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than ‘reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A.”).
In light of the recommendation to remand for further consideration, the court need not address Plaintiff s remaining arguments, as they may be rendered moot on remand. 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). Moreover, if necessary, Plaintiff may present his remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
It is recommended that this matter be
[ ] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[ ] Reversed and remanded pursuant to K Sentence Four □ Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[ ] Reversed and remanded for an award of benefits.
The parties' attention is directed to the important notice on the next 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 901 Richland Street Columbia, South Carolina 29201
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).