Opinion
Civil Action 2:21-cv-1553-TLW-MGB
07-14-2022
Janice Grigsby,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
MARRY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
This case is before this Court for a Report and Recommendation pursuant to Local 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). Plaintiff Janice Grigsby brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Acting Commissioner of Social Security Administration (the “Commissioner”) regarding the denial of her application for Supplemental Security Income (“SSI”) under Title XVI. For the reasons set forth below, the undersigned recommends that the Commissioner's decision be remanded.
I. RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
On May 29, 2019, Plaintiff protectively filed a claim for SSI, alleging disability beginning June 1, 2012. Plaintiff alleged an inability to work because of bipolar disorder, spine issues, chronic obstructive pulmonary disease (“COPD”), and high blood pressure. The claim was denied initially on November 6, 2019 (Dkt. No. 9-3, 15-31), and upon reconsideration on May 7, 2020 (Id. at 33-53.)
On November 17, 2020, Plaintiff, represented by counsel, appeared via telephone before an Administrative Law Judge (“ALJ”) for a hearing. (Dkt. No. 9-2, 38-79.) Also present was an impartial vocational expert, Carey A. Washington, Ph.D.
Plaintiff was 40 years old at the time of the hearing. Plaintiff testified that she weighed 227 pounds. (Id. at 49.) She stated that she had tried physical therapy in 2019, but her visits were denied because of her high blood pressure. (Id. at 50.) Plaintiff stated that she tries home exercises for her legs while she is lying in bed, but they do not help her. (Id.) She has a driver's license but does not drive often, and then someone accompanies her. (Id. at 51.) She has not been issued a handicapped parking tag or placard. (Id.) Plaintiff receives Supplemental Nutrition Assistance Program (“SNAP”) benefits. Plaintiff has an eighth grade education. She can read and write and perform simple addition and subtraction. She knows how to handle money. Plaintiff testified that she was incarcerated from about 2005 to 2008, but did not take any sort of education or training programs while in prison. (Id. at 52-53.)
Plaintiff has disk disease in her lumbar spine for which she had surgery in June of 2019. Plaintiff testified that her back still bothers her. She stated that her physician wants her to undergo an additional surgery, but she does not want to get another surgery because it could cripple her. (Id. at 55.) Plaintiff testified that the pain medicine she has been prescribed does not alleviate the pain. Plaintiff received an injection in her back in 2019. She has a back brace but has not used it since right after her surgery. (Id. at 56.) According to Plaintiff, her pain level is seven on a scale of ten every day. When she is walking around or bending over, the pain increases in her legs. (Id. at 57.) Plaintiff stated that she occasionally has neck pain when her blood pressure is high. (Id. at 58.) Plaintiff testified that she uses a blood pressure pump at home, and that her blood pressure ranges from 198 over 110 to 250 over 120. She relaxes at home in order to bring her blood pressure down. (Id. at 59.) Plaintiff stated that her physicians had been trying to adjust her blood pressure medicines for over a year, but her blood pressure has not improved. (Id. at 60.)
The upper number is systolic mm Hg; the lower number is diastolic mm Hg. The abbreviation “mm Hg” means millimeters of mercury.
• Systolic blood pressure (the first number) - indicates how much pressure your blood is exerting against your artery walls when the heart beats.
• Diastolic blood pressure (the second number) - indicates how much pressure your blood is exerting against your artery walls while the heart is resting between beats.https://www.heart.org/en/health-topics/high-blood-pressure/understanding-blood-pressure-readings
Plaintiff testified that she has been treated for asthma, COPD, and allergic rhinitis. Plaintiff stated that she gets short of breath when she is up and about. (Id.) Plaintiff further testified regarding her medications. She takes Ventolin, Fluticasone, and Flonase for her allergies; Cyclobenzaprine, a muscle relaxant for her back; Cetirizine for allergies; Omeprazole for reflux; Norvasc and Metoprolol for her blood pressure and heart; Lasix for swelling in her legs and face. Plaintiff testified that she has to stay in bed a majority of the day every day. (Id. at 61-62.)
Plaintiff also is treated by a psychiatrist and behavior counselor. She takes Lamotrigine for bipolar disorder; Mirtazapine for anxiety at night. She also takes Depakote for her heart, Cymbalta, Divalproex, and Valsartan for blood pressure. (Id. at 63-67.) Plaintiff described side effects of feeling sleepy all the time, feeling sick, throwing up, being hungry. She can shower and dress herself without assistance. She helps with dishes but not laundry. (Id. at 68.)
Plaintiff testified that her mind does not stay focused on anything. She stated she can barely walk and that she has been in bed for nearly a year. (Id. at 69.) Plaintiff stated that she really does not walk anywhere except around her apartment. She stated that standing too long makes her legs hurt. She also stated that she did not know whether she could stay up long enough to sit in a chair because of her medication. (Id. at 70.) Plaintiff testified that she could not sit at a job “and do whatever they're having me do when I'm falling asleep on them or I'm throwing up and my body is in pain from sitting in the chair for too long.” (Id. at 71.) Plaintiff stated that she really did not care to talk with people. (Id.)
The ALJ presented the vocational expert with a series of hypotheticals.
Q . . . Hypothetical #1, I'd like you to assume a hypothetical worker the claimant's age, her education, which is limited and no past relevant work history with the following limitations[:] limited to the light exertional level as defined by the regulations with no more than occasional stooping, kneeling, crouching, crawling, balancing and climbing ramps and stairs, no climbing ladders, ropes or scaffolds, no more than occasional exposure to hazards such as unprotected heights and dangerous machinery, no more than frequent exposure to dust, fumes, gases, odors, pulmonary irritants or extremes of heat or cold. This worker is also limited to simple, routine tasks, but is able to maintain concentration, persistence and pace for periods of at least two-hour blocks of time, perform activities within a schedule, maintain regular attendance, complete a normal workday and workweek, is capable of performing GED reasoning development level two jobs and no jobs that require more than occasional interaction with the general public. Given all these limitations, is there any other obviously unskilled work that would be available?
A Yes, sir, there would be. Examples, although not conclusive would be as follows. One job would be the job of . . . an egg, E-G-G, washer. This is considered a light work activity with a reasoning level of one and a DOT [Dictionary of Occupational Titles] number of 529.686-03, approximately 125,000 on a national basis.
Q What's the SVP [Specific Vocational Preparation] level of this job, Doctor?
A Every one of the jobs that I will share is SVP of 2.... Unskilled. Another job would be the job of a potato chip sorter. This is considered a . . . light work activity with an SVP of 2. The DOT number is 526.687-010, approximately 80,000 with a reasoning level, again, of 1. Another type of job would be the job of a picking table worker. This is considered a lighter work activity with a reasoning level of 1, SVP of 2, DOT number 521.687-102, approximately 100,000 as three representative work tasks, Your Honor, and on par with your hypothetical.
Q . . . Hypothetical #2, I'd like to get your opinions about workers who are off task in a work environment as given percentage of the workday. This will be in addition to the normal breaks provided and will continue on a recurring basis. Furthermore, when I say off task, this could be for any reason including but not limited to the worker is unable to maintain concentration, persistence and pace for periods of at least two-hour blocks of time or any other reason. Like this worker needs to lay down, sit down, elevate their feet, take unscheduled breaks, essentially anything that takes that worker out of the job they were hired to do. So hypothetical #2, you've got this worker regardless of any other limitations he or she may have, if any, what is your opinion, where is the threshold where off task becomes work preclusive especially for unskilled, entry level work?
A My experience has been with respect to employers that if an individual if off task approximately 15% of the workday, they would be unable to perform substantial work on a sustained basis in any work environment.
Q All right. I want to ask a third hypothetical and I'll get your opinions about workers who are absent from work as a given number of days per month on a recurring basis. So hypothetical 3 is like hypothetical #2, except what's your opinion, where is the threshold where absences becomes work preclusive, especially for unskilled, entry level work?
A. If an individual is hired after a training period for the record of only one absence a month from substantial work that leads to them to a continuation of a fulltime job and after they enter that full-time job they are frequently or on a monthly basis absent from work at least twice a month, then they would be in a situation that they no longer would be allowed by perspective employees [sic] to continue on a full-time basis with those two or more absences a month.
Q All right. Has your testimony been consistent with the DOT?
A It has been and as well as my experience, Your Honor, in my own surveys I've conducted in the past, the resources made available to me such as statistics I've shared with the court [as] far as the days that they're at work, statistics relating to labor numbers on the national/state level as well as other documents such as SkillTRAN, Job Browser as part of my testimony.(Id. at 73-77.)
As noted supra, the ALJ issued an unfavorable decision on December 24, 2020. The ALJ found that Plaintiff has the following severe impairments: lumbar spine, degenerative disc disease, asthma, hypertension, obesity, depressive disorder, and anxiety disorders. (Id. at 18.) The ALJ determined that Plaintiff had been diagnosed with acne, allergic rhinitis, hyperlipidemia, GERD [gastroesophageal reflux disease], and a vitamin D deficiency, but that these impairments are well managed and stable based upon routine examinations. The ALJ further observed that Plaintiff had been noted as suffering from restless leg syndrome, but that medication generally has resolved the issue. The ALJ also reported that Plaintiff has a history of drug and alcohol abuse, but the addictions appeared to be generally well managed through the use of therapy support services and medication management. The ALJ stated, however, that he considered all of Plaintiff's medically determinable impairments, including those that are not severe, when assessing Plaintiff's residual functional capacity (“RFC”). (Id. at 19.)
The ALJ further noted that Plaintiff had been diagnosed with fibromyalgia in November 2019 and subsequently prescribed Cymbalta, but that there was no evidence during various routine physical examinations to support the diagnosis in terms of documenting tender points or other signs and findings associated with the condition. According to the ALJ, the diagnosis did not meet the requirements of Social Security Ruling 19-2p. The ALJ further found no support in the record for an impairment of cervical degenerative disease based on a treatment note from January 2020, as urged by Plaintiff. The ALJ reported that Plaintiff testified she had no problems with her neck other than an unspecified “nerve issue” and head pain related to her hypertension. The ALJ also stated that the record contained no imaging to support a cervical spine issue. The ALJ concluded that Plaintiff's alleged fibromyalgia and cervical degenerative disease were non-medically determinable impairments because there was no objective evidence to substantiate either impairment. (Id. at 20.)
Social Security Ruling 19-2 provides guidance on determining whether a person has a medically determinable impairment of obesity and how the Social Security Administration evaluates obesity in disability claims.
The ALJ's decision reads, “Based on the evidence in the record, the undersigned finds the claimant's alleged fibromyalgia and cervical impairment are non-medically determinable impairments as there is objective evidence to substantiate either impairment.” (Dkt. No. 9-2, 20.) (emphasis added.) The undersigned believes this sentence contains a scrivener's error in that it appears the ALJ intended to find “there is no objective evidence” to substantiate Plaintiff's alleged fibromyalgia and cervical impairments. The ALJ's finding regarding these two impairments is not at issue.
The ALJ determined that Plaintiff 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. § 416.920(d), 416.925 and 416.926). Regarding Listing 1.04A, which addresses Plaintiff's back impairment, the ALJ found no evidence of nerve root compression. The ALJ observed imaging of the lumbar spine showed “moderate spinal stenosis at L4-L5 along with mild to moderate bilateral neuroforminal narrowing, epidural lipomatosis, mild bilateral neuroforminal narrowing at L5-S1, but with no significant spinal canal or neuroforminal narrowing at any other level of the lumbar spine.” (Dkt. No. 9-2, 20.) The ALJ observed that Plaintiff was able to engage in various daily tasks, that there was “no evidence [of] negative straight leg raise testing and no sensory or motor strength deficits during musculoskeletal or neurological examinations.” (Id.) The ALJ further observed that Plaintiff's symptoms/findings were not present within a continuous twelve-month period. The ALJ concluded that Plaintiff's back impairment does not meet Listing 1.04A. (Id.)
Regarding Plaintiff's asthma, the ALJ found that Plaintiff satisfied the conditions of Listing 3.03A, but not Listing 3.03B. Listing 3.03B addresses exacerbations or complications that require three hospitalizations within a 12-month period and at least 30 days apart. The ALJ also considered Plaintiff's obesity, and determined that the functional limitations caused by this impairment, alone or in combination with another impairment, do not medically equal a listing. The ALJ stated, “For instance, [Plaintiff's] obesity does not increase the severity of a coexisting or related impairment(s) to the extent that the combination of impairments medically equals a listing, as this impairment does not cause debilitating functional limitations in exertional activities, postural movements, and even exposure environmental factors. Thus, [Plaintiff's] obesity in combination with her other impairment(s) may or may not increase the severity or functional limitations of the other impairment(s).” (Id. at 21.)
The ALJ reported that the severity of Plaintiff's mental impairments, singly and in combination, do not meet or medically equal the criteria of Listings 12.04 and 12.06. The ALJ first considered the “paragraph B” criteria. The ALJ found that Plaintiff has a mild limitation in understanding, remembering, or applying information. The ALJ noted that Plaintiff has a limited education, but there was no indication she has any learning and/or cognitive difficulties. The ALJ noted that Plaintiff could pay her bills and manage cash; that Plaintiff possessed the ability to utilize public transportation on her own; and that a consulting examiner, Dr. Cross, had reported no abnormalities in Plaintiff's thought processes/content. The ALJ stated that the record showed no evidence of any significant memory deficits. According to the ALJ, Plaintiff's “mental impairments can cause minor problems understanding and applying information involved in more complex instructions and tasks. Thus, based on the aforementioned evidence, she is able to understand information, remember it and by following instructions, answering and asking questions, solving problems, using reasoning, and using judgment with minor modifications or adjustments.” (Id. at 21.)
The ALJ determined that Plaintiff has a moderate limitation in interacting with others. The ALJ recited that Plaintiff had discussed her challenges interacting and sustaining relationships with others with Dr. Cross. The ALJ found that Plaintiff had trouble in social functioning, but that she was able to sustain interaction with others, including family members and medical practitioners. The ALJ further noted that Plaintiff had undergone therapy to develop coping skills. The ALJ concluded that, “although [Plaintiff's] depression and anxiety cause some moderate challenges in social functioning, her ability to deal with others at home, while managing herself and personal responsibilities and in other scenarios indicates her difficulties interacting with others is neither marked nor extreme.” (Id. at 21-22.)
The ALJ also found that Plaintiff has a moderate limitation with respect to concentrating, persisting, or maintaining pace. Plaintiff reported to Dr. Cross that she had problems concentrating, but also stated that she was able to focus and pay attention, as well as complete household tasks, without problems. The ALJ noted that Plaintiff's impairments can affect her ability to persist and complete more complex instructions/tasks when she is under stress and/or anxious; however, her ability to concentrate/complete tasks/maintain pace is moderate in nature when considering her consultative examinations, ability to manage herself, and respond appropriately to questions. (Id. at 22.)
According to the ALJ, Plaintiff has some challenges at times managing stressors and triggers, and can become overwhelmed, but had worked at improving these problems through therapy. The ALJ noted that Plaintiff generally maintains the ability to meet personal responsibilities without modifications or adjustment necessitated by psychologically based symptoms or impairments. The ALJ considered Plaintiff's limitations in this area to be no more than mild in nature. (Id.) For all these reasons, the ALJ concluded that Plaintiff's mental impairments do not satisfy the criteria of paragraph B.
Regarding paragraph C criteria, the ALJ determined that Plaintiff has more than a marginal adjustment capacity to adapt to changes in her environment or to demands that are not already part of her life. The ALJ recounted that numerous routine examinations demonstrate that Plaintiff was psychiatrically stable and functioning relatively well. The ALJ concluded that Plaintiff's impairments failed to satisfy the paragraph C criteria. (Id. at 22-23.)
The ALJ found as follows:
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). Function by function, the claimant is able to lift and carry 20 pounds occasionally and less than 10 pounds frequently, can stand and/or walk 6 hours in an 8-hour work day and sit for at least 6 hours in an 8-hour work day. The claimant can occasionally stoop, kneel, crouch, crawl, balance, and climb ramps and stairs. The claimant cannot climb ladders, ropes and scaffolds. The claimant can occasionally be exposed to hazards such as unprotected heights and dangerous machinery. The claimant can have frequent exposure to dust, fumes, gases, odors, and pulmonary irritants. The claimant can have frequent exposure to extremes of heat or cold. The claimant is limited to simple, routine tasks but is able to maintain concentration, persistence or pace for periods for at least two hours at a time, perform activities within a schedule, maintain regular attendance in order to complete a normal workday and workweek. The claimant is able to perform GED Reasoning Development Level 2 jobs. The claimant can occasionally interact with the general public.(Id. at 23.)
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. The ALJ noted that Plaintiff's hypertension had generally responded favorably to medication, and that episodes of elevated blood pressure were easily remedied with medication. The ALJ also observed that Plaintiff's asthma was stable and well managed through medication, and that her respiratory examinations were unremarkable. (Id. At 24-25.) Regarding Plaintiff's weight, the ALJ noted that her body mass index (“BMI”) was over 30 and consistent with morbid obesity. The ALJ observed that the results of routine musculoskeletal and neurological examinations showed no reason why Plaintiff is unable to exercise or engage in physical activity. The ALJ also noted that Plaintiff was referred to a dietician to help her lose weight. (Id. at 25.)
The ALJ next discussed Plaintiff's degenerative disc changes at L4-L5. The ALJ recounted that Plaintiff underwent a lateral interbody fusion in June 2019, which gave her significant relief of radicular symptoms. Plaintiff's examinations showed normal gait and good muscle tone. Over time, Plaintiff developed a reoccurrence of back pain, which was managed through a pain management clinic. The ALJ noted that Plaintiff had remained able to ambulate, had a full range of motion on musculoskeletal examination, and had normal motor strength in the lower extremities. (Id. at 26.) The ALJ also discussed Plaintiff's depression and anxiety disorders, which were associated with mood swings, anger, and trouble concentrating. The ALJ observed that Plaintiff had realized some success in decreasing this symptoms through medication. However, Plaintiff reported to Dr. Cross that she had not sought mental health treatment or taken medications since being released from prison. She denied ever having required inpatient care. The ALJ recounted that:
Dr. Cross reported no abnormalities in insight/judgment, thought processes and content during the mental status examination, but did note her mood was somewhat tense and her affect was somewhat angry and resistant (Exhibit 2F, pages 4 to 5). However, she was not anxious, and denied feeling hopeless, helpless, and worthless, as well as had no issues in orientation and memory (Exhibit 2F, page 4). During the concentration and calculation portion of the examination, she could not perform serial threes, could perform simple math, was not able to perform alpha numeric reasoning, but was able to follow our conversation well (Exhibit 2F, page 4).(Id. at 26-27.)
The ALJ stated that in January 2020 Plaintiff's depression had been characterized as “moderately severe,” but the results of her psychiatric examination were relatively normal. During the summer months of 2020, Plaintiff worked through therapy to better manage negative thoughts, imbalanced emotions, and anger, and adjustments were made to her medication. In September 2020, Plaintiff's depression screening was mild, but her anxiety was deemed to be moderate. The ALJ concluded that Plaintiff “has some capacity for occasional social interaction with others (precluding the public), can engage in simple routine tasks based on her concentration capacity and reasoning capacity, and has the ability to utilize coping skills and techniques.” (Id. at 27.)
The ALJ noted that he was precluded from deferring or giving any specific evidentiary weight, including controlling weight, to any prior administrative medical findings or medical opinions, including those from medical sources. (Id.) The ALJ stated that Dr. Cross had opined Plaintiff could understand, remember, and carry out simple one or two-step job instructions, but could not engage in detail and complex instructions. Further, Dr. Cross opined Plaintiff had a marked impairment interacting with coworkers and public and moderate impairment in attention, persistence, and pace, as well as accepting instructions from supervisors, and maintaining regular attendance in the workplace. The ALJ found Dr. Cross's opinion to be not persuasive “as it is dated and not consistent with evidence in the longitudinal record that illustrates her mental impairments can be managed and do not preclude her from functioning on a daily basis and/or securing and sustaining employment.” (Id. at 28.)
The Social Security Administration amended the “Treating Physician Rule” effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 404.1520c; 20 C.F.R. § 416.920c. Under the new rules, the Administration will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2); 20 C.F.R. § 416.920c(a), (c)(1)-(2).
The ALJ reviewed medical opinions from practitioners who treated Plaintiff while she was incarcerated. One opinion stated that Plaintiff required a lower bunk, and another that she needed to carry Benzoyle Peroxide on her person. The ALJ stated that the opinions failed to offer any reference for why the accommodations were needed and/or what impairment they stemmed from, and thus were considered to be not persuasive. The ALJ further noted that the records contained global assessment of functioning (“GAF”) scores, which are utilized to assess mental functioning and health. The ALJ observed that the tests are considered to be “other medical evidence” under the current rules and are not considered for persuasiveness. (Id.)
The ALJ considered the opinion of State Agency medical consultant Jody Lenrow, Psy.D. She opined in 2018 that Plaintiff had moderate limitations in all B criteria categories, except for in adaptation and managing oneself, which was a mild limitation. Dr. Lenrow opined Plaintiff could understand and remember short and simple instructions and attend to and perform simple work tasks without special supervision. Dr. Lenrow further opined that Plaintiff was not best suited for jobs that require interaction with the general public. The ALJ found Dr. Lenrow's opinion to be partially persuasive because it is generally consistent with the longitudinal evidence based on Plaintiff's daily functioning, involvement in her medical care, relationships with family, and her response to treatment. However, the ALJ noted there was evidence that Plaintiff had worked through therapy at managing her anger through use of coping skills, and has also worked at better managing stressors and changes to be able to persist with tasks. (Id. at 28-29.)
The ALJ recounted an evaluation performed in August 2019 by Edward Waller, Ph.D. Dr. Waller reviewed the evidence and opined that Plaintiff had mild limitation in understanding, remembering or applying information, and moderate limitations interacting with others and concentrating, persisting or maintaining pace. Dr. Waller also opined that Plaintiff was capable of understanding and remembering simple instructions, would be able to carry out simple tasks for two hours at a time without special supervision, could relate appropriately to coworkers and supervisors, but due to her mental impairments would be best suited for a work setting with limited public contact and would be able to adapt to workplace changes and could recognize and avoid normal hazards. (Id. at 29.)
The ALJ also reviewed an evaluation of Plaintiff prepared by Derek O'Brien, M.D., in May 2020. Dr. O'Brien opined that Plaintiff had moderate limitation in all B criteria categories except for a mild limitation in understanding, remembering or applying information. According to Dr. O'Brien, treatment records did not contain any evidence of significant cognitive problems based on Plaintiff's educational history and/or daily functioning, but there was evidence of anger and irritability that had affected her relationships with others and ability to interact with the public, as well as her ability to concentrate and persist due to depression and anxiety symptoms. (Id.) The ALJ found these opinions to be largely persuasive because “they are consistent with the evidence that highlights that despite some moderate challenges in social functioning and concentration, persistence or pace, she [] responded to treatment and has some capacity to persist with simple routine tasks, engage in some social interaction and has some capacity to adapt to change with use of coping skills and techniques, as well as recognition of triggers.” (Id.)
Next, the ALJ recounted the opinion of the State Agency medical consultant Ronald Collins, M.D., who reviewed the evidence in November 2019 and opined that Plaintiff could engage in light exertional work, stand/walk, and sit for 6 hours in an 8-hour workday; could never climb ladders, ropes, and scaffolds, but could occasionally engage in all other postural movements; and had to avoid concentrated exposure to extreme cold, fumes, odors, dusts, gases, poor ventilation, and hazards. (Id.) The ALJ also reviewed the opinion of State Agency medical consultant Hurley Knott, M.D., who reviewed the evidence in May 2020 and concurred with Dr. Collins' opinion. Dr. Knott opined that, despite Plaintiff's lumbar impairment and obesity, she has the capacity to lift and carry at the light exertional level, and engage in all postural movements occasionally, with exception to climbing ladders, ropes, and scaffolds, based on her ability to stand and walk freely. Dr. Knott noted that the results of musculoskeletal and neurological examinations document some pain and tenderness, but no debilitating functional limitations. According to Dr. Knott, the environmental limitations were necessary based on Plaintiff's asthma. (Id.) The ALJ concluded that these two opinions were consistent with the longitudinal record, and thus largely persuasive. (Id.)
Finally, the ALJ acknowledged the Third Party Function Reports completed by a friend of Plaintiff. The ALJ declined to discuss or assess the reports in terms of persuasiveness, because the Social Security Administration does not require evaluation of third-party statements. (Id. at 29-30.)
The ALJ found Plaintiff retained the RFC for the range of light exertional work. The ALJ determined:
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on December 7, 1979 and was 39 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)).(Id. at 30.)
The ALJ recounted the testimony of the vocational expert that jobs exist in the national economy for an individual of Plaintiff's age, education, work experience, and RFC: i.e., egg washer, potato chip sorter, and picking table worker. (Id. at 30-31.) The ALJ determined that, pursuant to Social Security Ruling 00-4p, the vocational expert's testimony was consistent with the information contained in the DOT. The ALJ recited that the vocational expert testified that time off task and absences are not addressed by the DOT and the vocational expert had to rely on her education,training, experiences, work with employers, observations, and placement. (Id. at 31.) The ALJ concluded that Plaintiff is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Accordingly, he found that Plaintiff had not been under a disability, as defined in the Social Security Act, since May 29, 2019, the date the application was filed. (Id. at 31.)
The decision reads “relief on her education[.]” (Dkt. No. 9-2, 31.)
Plaintiff requested a review by the Appeals Council. On April 15, 2021, the Appeals Council issued a letter informing Plaintiff that it found no basis for changing the ALJ's decision and informing Plaintiff she could seek court review by filing a complaint in the United States District Court for the judicial district in which she lived. (Id. at 2-4.) This case followed.
II. APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability “to engage in 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 twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r, 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. Social Security Ruling 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r, 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g). “Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
In evaluating medical opinions and prior administrative medical findings, the Social Security Administration does not defer to give any specific evidentiary weight, including controlling weight, to any medical opinion or prior administrative medical finding. 20 C.F.R. § 416.920c(a). The Social Security Administration evaluates the persuasiveness of medical opinions using the following criteria: (1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) other factors. Id. § 416.920c(c). The Social Security Administration considers supportability and consistency to be the most important factors when evaluating the persuasiveness of medical opinions and prior administrative medical findings in the claimant's case record. Id. § 416.920c(a).
A claimant is classified based upon her ability to perform “very heavy work,” “heavy work,” “medium work,” “light work,” and “sedentary work.” 20 C.F.R. § 404.1567. An RFC assessment “for less than a full range of sedentary work reflects serious limitations” and is “expected to be relatively rare.” Social Security Ruling 96-9P, 1996 WL 374185 at *1 (S.S.A. July 2, 1996).
III. DISCUSSION
Plaintiff raises the following grounds for relief:
I. The ALJ erred at step five by finding that other work existed in significant numbers in the national economy, in violation of 20 C.F.R. § 416.966 and case law within the Fourth Circuit.
II. The ALJ erred at step five by failing to resolve the apparent conflict between the vocational expert's testimony and the information contained in the Dictionary of Occupational Titles, in violation of Social Security Ruling 004p and Fourth Circuit precedent.
III. The ALJ erred by failing to adequately account for Ms. Grigsby's moderate limitations in interacting with supervisors in the RFC, in violation of Social Security Ruling 96-8p and in violation of Fourth Circuit precedent.
IV. Whether the ALJ had lawful authority under the United States Constitution to hear and decide Ms. Grigsby's claim for disability.(Dkt. No. 12, 6.)
A. Existence of Other Work in Significant Numbers
Pursuant to 20 C.F.R. § 416.966, Work which exists in the national economy,
(a) General. We consider that work exists in the national economy when it exists in significant numbers either in the region where you live or in several other regions of the country. It does not matter whether-
(1) Work exists in the immediate area in which you live;
(2) A specific job vacancy exists for you; or
(3) You would be hired if you applied for work.
(b) How we determine the existence of work. Work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications. Isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where you live are not considered work which exists in the national economy. We will not deny you disability benefits on the basis of the existence of these kinds of jobs. If work that you can do does not exist in the national economy, we will determine that you are disabled. However, if work that you can do does exist in the national economy, we will determine that you are not disabled.
....
(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of-
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
Plaintiff asserts that the vocational expert's testimony was not based on substantial evidence in three respects: (1) the vocational expert identified three demonstrably obsolete job occupations; (2) the vocational expert failed to explain where she derived her job data information; and (3) the vocational expert failed to explain how she derived or calculated her national job numbers. According to Plaintiff, the vocational expert's testimony rendered the ALJ's determination at step five to be erroneous.
In response, the Commissioner notes that Plaintiff's hearing counsel did not question the vocational expert's qualifications, question whether the jobs cited by the vocational expert were obsolete, or inquire into the methodology or foundational materials the vocational expert used to reach the quoted numbers. According to the Commissioner, the vocational expert had no duty to provide the underlying methodology and supporting materials, particularly when the information is not requested by the claimant. Plaintiff, on the other hand, asserts in her reply brief that she raised her claims about the vocational expert's unreliable testimony and objected to the obsolete jobs identified by the vocational expert upon request for review by the Appeals Council. Plaintiff submits that the court should perform a judicial review regarding whether the vocational expert's testimony was unreliable and whether the identified jobs are obsolete in the current economy, regardless of whether this question was raised to the ALJ.
The district court's determination of substantial evidence is based on the entire administrative record. See Roberts v. Kijakazi, No. 5:20-CV-00204-D, 2021 WL 4074797, *2 (E.D. N.C. Jul. 31, 2021) (citing 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Robbins v. Barnhart, 205 F.Supp.2d 1189, 1200 (D. Kan. 2002) (“Where the Appeals Council has considered the evidence and denied review, the court will determine whether substantial evidence supports the ALJ decision based upon all the evidence including the evidence made a part of the record by the Appeals Council.”)(citing Jones v. Sullivan, 804 F.Supp. 1398, 1404 (D. Kan. 1992)).
In this case, the Appeals Council accepted both Plaintiff's request for review (Dkt. No. 9-4, 76-78) and brief (Dkt. No. 9-6, 124-35) as additional evidence and made these documents part of the administrative record. (Dkt. No. 9-2, 6.) See 20 C.F.R. § 404.970 (authorizing Appeals Council to consider additional evidence in certain circumstances). Plaintiff made a detailed argument in her brief to the Appeals Council that the three jobs identified by the vocational expert were obsolete and the vocational expert's testimony was unreliable. Because the arguments raised on federal review are included in the administrative record, the undersigned recommends that the District Judge address Plaintiff's contentions regarding the national jobs identified by the vocational expert.
As set forth supra, the vocational expert identified three jobs suitable for someone with Plaintiff's capabilities: egg washer (125,000 national jobs), potato chip sorter (80,000 national jobs), and picking table worker (100,000 national jobs). These positions are described in the DOT as follows:
1. 529.686-030 EGG WASHER, MACHINE. DOT Fourth Edition, Revised 1991. Job description: Feeds eggs into machine that removes earth, straw, and other residue from egg surface prior to shipment: Places eggs in saucer-like holder that carries eggs into machine where rotating brushes or water sprays remove residue. Removes cleaned eggs from discharge trough of machine and packs eggs in cases for shipment.
2. 526.687-010 POTATO-CHIP SORTER. DOT Fourth Edition, Revised 1991. Job description: Observes potato chips on conveyor and removes chips that are burned, discolored, or broken.
3. 521.687-102 PICKING-TABLE WORKER. DOT Fourth Edition, Revised 1991. Job description: Picks stems, stones, metal, or wood not eliminated by trash-picking machine from conveyor to prevent damage to beet knives. May trim tops from beets to prevent clogging of knives. in slicers.
Plaintiff asserts that the ALJ “blindly relied” upon the vocational expert's testimony and made no inquires of the vocational expert other than whether the vocational expert's testimony was consistent with the information contained in the DOT. Plaintiff makes related arguments that (1) it is “plainly obvious” the three occupations recited by the vocational expert no longer exist, and (2) contrary to the vocational expert's statistics, the three job occupations identified by the vocational expert are not generally available in significant numbers in the national economy. Plaintiff contends that more current job data are found in the County Business Patterns and the Occupational Outlook Handbook, publications deemed acceptable under § 416.966(d). These publications reveal that only 867 egg washer jobs, 756 potato chip sorter jobs, and 67 picking-table worker jobs currently are available in the entire national economy. (Dkt. No. 12, 8; see Dkt. No. 12-1, 1-7.)
The Commissioner contends that Plaintiff's failure to question the vocational expert at the hearing on this point suggests that it is not “plainly obvious” the jobs cited by the vocational expert are obsolete, and that the vocational expert's testimony “is actual, and substantial, evidence that these jobs are not obsolete.” (Dkt. No. 13, 31.)
1. Whether the jobs are plainly obsolete. The district court in Abernathy v. Saul, Docket No. 3:20CV213-GCM, 2021 WL 1734353 (W.D. N.C. May 3, 2020), was presented with the question of whether the occupations of paster, stuffer, or sorter were obsolete. The district court noted that “[a] decision finding a claimant not disabled based on his ability to perform work that no longer exists in the national economy is not supported by substantial evidence.” Id. at *2. In so stating, the Abernathy district court cited with approval to Herrman v. Colvin, 772 F.3d 1110 (7th Cir. 2014). In Herrman, the Court of Appeals for the Seventh Circuit held, “If the only jobs the applicant is physically and mentally capable of doing no longer exist in the American economy (such as pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist) the applicant is disabled from working, and likewise, as a realistic matter, if there is an insignificant number of such jobs.” 772 F.3d at 1113.
In Abernathy, the district court was able to identify a number of courts that previously had found the positions of paster and stuffer to be obsolete. As to the position of sorter, the Abernathy district court referred to Moore v. Berryhill, No. 4:17-CV-00091, 2018 WL 2197974 (W.D. Ky. May 11, 2018). In Moore, the district court “noted, given that the DOT was last updated in 1991, ‘[I]t is impossible not to know that the occupational landscape in the United States has been dramatically and permanently transformed since then by the proliferation of automation, computers, and the internet,' and that ‘common sense suggested that the occupations of mail clerk, sorter, and small products assembler may well be much different than they were when the DOT last undated [sic] those job descriptions, 29, 35, and nearly 37 years ago, respectively.'” (citation omitted).
This Court is not prepared to find that the jobs of egg washer, potato chip sorter, and pickingtable worker are plainly obsolete in the same manner as a pony express rider. The more relevant question is whether there exists an insignificant number of jobs Plaintiff is capable of performing. Given the gross disparity between the numbers asserted by the vocational expert and those recited in the County Business Patterns and the Occupational Outlook Handbook, the undersigned recommends a finding that the reliability of the vocational expert's testimony is in doubt, and that the ALJ's step five determination was not supported by substantial evidence.
2. Source of job data and how numbers were calculated. Plaintiff asserts the vocational expert's testimony was unreliable because the vocational expert failed to give the source of her job data or explain how she calculated or derived the job numbers for the positions of egg washer, potato-chip sorter, or picking-table worker. According to Plaintiff, the job numbers she supplied to the Appeals Council from the County Business Patterns and the Occupational Outlook Handbook, which publications are listed as authoritative under § 416.966(d), call into question the vocational expert's testimony as to “job data about obsolete job occupations from an unknown source and derived from an unknown methodology.” (Dkt. No. 12, 16.) Plaintiff asserts that the vocational expert's testimony is unreliable, and, consequently, the ALJ's decision is not based on substantial evidence.
Relying on Biestek v. Berryhill, 139 S.Ct. 1148 (2019), the Commissioner responds that there is no requirement for a vocational expert to provide the source of her data or how the job numbers were derived. In Biestek, the claimant's attorney asked the vocational expert the source of the numbers she provided. The vocational expert stated that she derived the numbers from Bureau of Labor Statistics and her “‘own individual labor market surveys.'” Biestek, 139 S.Ct. at 1153. The attorney requested the opportunity to review the vocational expert's private surveys. The vocational expert refused, stating that she wished to keep the surveys confidential. At this point, the ALJ interjected that he “‘would not require'” the vocational expert to produce the surveys. Id. On appeal, Biestek argued, among other things, that a vocational expert's refusal to provide supporting data interfered with effective cross-examination, and that the inability to test the vocational expert's supporting data rendered her opinion unreliable. Biestek petitioned the Court to adopt a categorical rule that would apply to any vocational expert who refuses a request for underlying data. The Court disagreed, stating that “[s]ometimes an expert's withholding of such data, when combined with other aspects of the record, will prevent her testimony from qualifying as substantial evidence. That would be so, for example, if the expert has no good reason to keep the data private and her testimony lacks other markers of reliability. But sometimes the reservation of data will have no such effect. Even though the applicant might wish for the data, the expert's testimony still will clear (even handily so) the more-than-a-mere-scintilla threshold.” Id. at 1157. The Court observed:
Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods-where she got the information at issue and how she analyzed it and derived her conclusions. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 969-970 ([7th Cir.] 2018). And even without significant testing, a factfinder may conclude that testimony has sufficient indicia of reliability to support a conclusion about whether an applicant could find work.Biestek, 139 S.Ct. at 1156-57.
The undersigned concludes that Biestek generally is inapposite, because it addressed whether a vocational expert must provide specific underlying data when requested by a claimant. Plaintiff's contentions fall within the Court's recognition that an applicant may probe the strength of testimony by asking an expert about “her sources and methods-where she got the information at issue and how she analyzed it and derived her conclusions.” Plaintiff raised these types of questions in her brief to the Appeals Council. (Dkt. No. 9-6. 124.) (“The vocational expert's testimony [is] legally flawed for three reasons: the VE never explained [in] any meaningful way the source of the data or the source [of] authority, ‘publication for the number of j[o]bs supposedly available in the national [economy] for Egg Washer[,] at DOT [#]529686-030[,] Potato Chip Sorter[,] at DOT [#]526687-010[,] and Picking Table [Worker,] at DOT #52687-102'[;] the VE did not use an appropriate or approved methodology to calculate the number [o]f jobs available in the national economy for Egg Washer, at DOT [#]529685-030[,] [P]otato Chip [S]orter[,] at DOT [#]526.687-010[,] and Picking Table [W]orker[,] at DOT #521687-102; and the numbers stated by the VE []vastly overstated the actual number of jobs available nationally according to authoritative government[-]published data sources such as the Bureau of Labor Statistics and the United States Census Burea[u.]”)
The Commissioner also asserts again that Plaintiff was afforded the opportunity to question the vocational expert at the hearing, but failed to do so. According to the Commissioner, Plaintiff's failure to do so results in a finding that the ALJ satisfied his substantial evidence burden. As this Court recommended previously, the District Judge should reject the Commissioner's argument in this regard.
Finally, the Commissioner contends that Plaintiff mischaracterizes the source of the job availability numbers she provides by citing to a secondary source, SkillTRAN Job Browser Pro, rather than to the County Business Patterns and the Occupational Outlook Handbook directly. The Commissioner observes that the SkillTRAN Job Browser Pro statistics are derived from approximately twenty data sources, and there is no indication how the data sources are used or whether the recited numbers are culled from either the County Business Patterns or the Occupational Outlook Handbook. The Commissioner urges the District Judge to reject Plaintiff's attempt to undermine the vocational expert's testimony through a lay interpretation of a vocational website.
Plaintiff responds that the SkillTRAN program is regularly used by vocational experts who testify at Social Security disability proceedings, and that the Commission in the past supported the use of SkillTRAN as reliable in Collins v. Berryhill, Civil No.: 3:17-cv-633 (MHL), 2018 WL 4232888, at *10 (E.D. Va. Aug. 20, 2018). In Collins, the district court observed:
On December 28, 2009, the SSA's Director of the Division of Field Procedures issued an internal memorandum to the regional management officers. Memorandum from Susan Swansiger, Dir., Div. of Field Procedures, SSA, to Reg'l Mgmt. Officers (Dec. 28, 2009). In that memorandum, the Director listed Job Browser Pro as an acceptable version of the DOT and stated that the program met the requirements of SSR 00-4p. Id. Specifically, the memorandum states that “four acceptable electronic versions of the ... DOT[] are currently available at http://ssahost.ba.ssa.gov/digitallibrary” Id. Under the second bullet point, the memorandum explained SkillTRAN Job Browser Pro as follows:
This Program provides a searchable copy of the DOT. Users can search by job title, DOT code or keyword(s) within the title, and task description. After selecting an occupation and clicking “Details”, users can find all DOT/SCO information on the “Quick View -Codes” button. Through the advanced search, it also allows searches by a variety of other lists, such as GOE or occupational group, all of which can be useful when performing transferability of skills analysis.
Id. The Director instructed the regional management officers to share her memorandum with all ALJs. Id. Moreover, the Agency administratively recognizes the reliability of the following sources of information: the DOT; county business patterns; census reports; occupational analyses; and, the OOH. 20 C.F.R. §§ 404.1566(d), 416.966(d). According to both Plaintiff's post-hearing brief and the VE's testimony, Job Browser Pro collects its job incidence data from these administratively recognized sources.... Thus, by regulation and Agency policy, the VE properly relied on data that she retrieved from Job Browser Pro.Collins, 2018 WL 4232888, at *11.
The undersigned recommends a finding that SkillTRAN is an acceptable source of data that Plaintiff should be able to use to challenge the vocational expert's figures. The undersigned recommends a finding that the reliability of the vocational expert's testimony is in doubt, and that the ALJ's step five determination was not supported by substantial evidence.
B. Conflict between the vocational expert's testimony and the information contained in the DOT.
Plaintiff correctly reports that the three jobs identified by the vocational expert are classified in the DOT as light exertion job occupations. “Light work” is defined by the Social Security Administration as:
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 someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b).
Plaintiff argues that the ALJ's decision limiting her to lifting and carrying “less than 10 pounds frequently” (Dkt. No. 9-2, 23) precludes her from performing light exertion occupations, which require workers to frequently lift or carry objects weighing up to ten pounds. According to Plaintiff, the ALJ failed to resolve the conflict among the vocational expert's testimony, the ALJ's step-five finding, and the information contained in the DOT, in violation of Social Security Ruling 00-4p. Plaintiff contends the ALJ's error was not harmless because she was prejudiced at step five of the decision.
The Commissioner asserts that the ALJ's “clear typographical error” does not warrant remand. (Dkt. No. 13, 22.) According to the Commissioner, Plaintiff's argument comprises form over substance and ignores the ALJ's overall decision. The Commission argues the ALJ's finding that Plaintiff is able to perform light work is clear because (1) the RFC recitation states Plaintiff “has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b)” and the ALJ simply made an error in expressing the definition; (2) the ALJ found persuasive the State Agency medical consultants' opinions that Plaintiff could lift/carry ten pounds frequently consistent with light work as defined by § 416.967(b); and (3) the hypotheticals posed by ALJ to the vocational expert at the hearing referred to the light exertional level “defined by the regulations.” The Commissioner also questions how Plaintiff was harmed by the inconsistency when she does not dispute that she is capable of performing light work, and there are no conflicting opinions by any of Plaintiff's medical providers as to her impairments. The Commissioner further observes that Plaintiff herself reported she could lift ten pounds, lift a gallon of milk, cook with a crock pot, and shop for groceries, all of which activities involve lifting.
Plaintiff characterizes the Commissioner's argument as an impermissible post-hoc rationalization for the ALJ's error. It is true that “the principles of agency law limit this Court's ability to affirm based on post hoc rationalizations by the Commissioner's lawyers. ‘[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [his] decision and confine our review to the reasons supplied by the ALJ.'” Robinson ex rel. M.R. v. Comm'n, No. C/A 0:07CV351-GRA, 2009 WL 708267 (D.S.C. Mar. 12, 2009) (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)). Confining the undersigned's review to the reasons supplied by the ALJ, the undersigned concludes that the ALJ's references to § 416.967(b) and adoption of State Agency medical consultants' findings satisfy his burden of showing Plaintiff can perform work at the light exertional level. There is no evidence in the record to support a finding that the ALJ intended to modify or limit the physical requisites of § 404.1567(b). The undersigned recommends a finding that the ALJ's meaning was clear from his references to § 404.1567(b) throughout his decision. The undersigned also recommends a finding that Plaintiff was not prejudiced by the Commissioner's error. Accordingly, the undersigned recommends that the District Judge affirm the ALJ's decision as to this issue. However, if the case is remanded, the ALJ should rectify this scrivener's error.
C. Plaintiff's moderate limitations in interacting with supervisors.
On August 26, 2019, one of the State Agency consultants, Dr. Waller, rated Plaintiff's social interaction limitations as follows:
The ability to interact appropriately with the general public.
Moderately limited
The ability to ask simple questions or request assistance.
Not significantly limited
The ability to accept instructions and respond appropriately to criticism from supervisors.
Moderately limited
The ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes.
Moderately limited
The ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness.
Not significantly limited(Dkt. No. 9-3, 27-28.)
Plaintiff argues that, despite finding the State Agency consulting psychologist's opinion largely persuasive, the ALJ failed in his hypotheticals posed to the vocational expert and in formulating Plaintiff's RFC to include a condition that Plaintiff is limited in her ability to interact with, accept instructions from, and respond appropriately to criticism from, supervisors. Instead, the ALJ merely determined that Plaintiff can occasionally interact with the general public. Plaintiff argues the ALJ's decision in this regard is not supported by substantial evidence.
The Commissioner responds that the ALJ considered three reports prepared by State Agency consultants: Dr. Lenrow, Dr Waller, and Dr. O'Brien. The Commissioner contends that the ALJ agreed with all three State Agency consultants, except to the extent that Dr. Lenrow found Plaintiff should have no interaction with the public.
Dr. Lenrow rated Plaintiff's social interaction limitations as follows:
The ability to interact appropriately with the general public.
Moderately limited
The ability to ask simple questions or request assistance.
Not significantly limited
The ability to accept instructions and respond appropriately to criticism from supervisors.
Moderately limited
The ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes.
Not significantly limited
The ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness.
Not significantly limited(Dkt. No. 9-3, 11.)
Dr. Lenrow explained that:
Due to her mental conditions as documented on the PRTF [Psychiatric Review Technique Form] of this same date, this claimant would have difficulty sustaining her concentration and pace on complex tasks and detailed instructions. However, she can understand and remember short and simple instructions and can attend to and perform simple work tasks without special supervision. She can attend work regularly but may miss an occasional day due to her mental conditions. She can relate appropriately to co-workers; however, is best suited for a job that does not require interaction with the general public. She can make simple work-related decisions and occupational adjustments, adhere to basic standards for hygiene and behavior, request assistance from others, protect herself from normal work-place safety hazards and use public transportation.(Id.)
Dr. Waller provided additional explanation regarding his rating of Plaintiff's social interaction findings, which are set out supra:
In consideration of medical functional findings cited on the current PRTF, the claimant has the following abilities:
Claimant is capable of understanding and remembering simple instructions, but would have difficulty with more complex instructions.
She is able to carry out simple tasks for two hours at a time without special supervision, and would not have an unacceptable number of work absences due to psychiatric symptoms.
Claimant is able to relate appropriately to co-workers and supervisors but, due to her depression, anxiety, and substance use d/o, she would be best suited for a work setting with limited public contact.
Claimant can adapt to workplace changes, and can recognize and avoid normal hazards. There is no evidence of significant impairment in ability to adapt to workplace changes.(Dkt. No. 9-3, 28.)
Finally, Dr. O'Brien rated Plaintiff's social interaction limitations as follows:
The ability to interact appropriately with the general public.
Moderately limited
The ability to ask simple questions or request assistance.
Not significantly limited
The ability to accept instructions and respond appropriately to criticism from supervisors.
Not significantly limited
The ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes.
Not significantly limited
The ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness.
Not significantly limited(Dkt. No. 9-3, 49.)
Dr. O'Brien further opined:
....
C. SOCIAL INTERACTION - Claimant has the ability to relate appropriately to peers and supervisors. Claimant may do better in work setting with only occasional interaction with the public.
....(Id. at 50.)
The undersigned finds no support in the State Agency psychological consultants' reports for a finding that Plaintiff would be unable to accept instruction or criticism from a supervisor.
The Commissioner also contends that the ALJ correctly recognized Plaintiff's ability to use public transportation, cooperate with medical professionals, live with her boyfriend and children, and to develop coping skills through therapy in support of his finding that Plaintiff could relate appropriately to co-workers and supervisors. The undersigned recommends a finding that substantial evidence supports the ALJ's RFC assessment regarding Plaintiff's ability to interact with others.
D. The ALJ's Authority to Hear and Decide Plaintiff's Claims.
Plaintiff argues that language contained in 42 U.S.C. § 902(a)(3), which provides that “[a]n individual serving in the office of Commissioner [of the Social Security Administration] may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office[,]” is unconstitutional for the reasons articulated in Seila Law. Plaintiff asserts that she was deprived of a valid adjudicatory process because former Commissioner Andrew M. Saul, while operating under an unconstitutional structure, had no authority to appoint the ALJ, and no authority to promulgate the regulations under which the ALJ decided the case. Plaintiff requests the case be “remanded for a de novo hearing before a new ALJ who does not suffer from the unconstitutional taint of having previously heard and decided this case when the ALJ had no lawful authority to do so.” (Dkt. No. 12, 23.)
In Seila Law LLC v. Consumer Fin. Protect. Bureau, 140 S.Ct. 2183 (2020), the Consumer Financial Protection Bureau (“CFPB”) issued a civil investigative demand to Seila Law Firm LLC to determine whether the law firm had engaged in unlawful acts or practices in the advertising, marketing, or sale of debt relief services. Id. at 2194. Seila Law LLC objected to the demand, arguing that CFPB's leadership by a single director removable only for cause violated the separation of powers.
When presented with this issue, the Court recounted that Article II of the Constitution vests the executive power in the President. According to the Court, the Founders expected that the President would rely on subordinate officers for assistance in fulfilling the responsibilities of the office. Citing Free Enterprise Fund v. Public Accounting Oversight Bd., 561 U.S. 477, 513-14 (2010), the Court stated that, “‘as a general matter,' the Constitution gives the President ‘the authority to remove those who assist him in carrying out his duties[.] . . . ‘Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.'” The Court observed that it had recognized only two exceptions to the President's unrestricted removal power: (1) when Congress creates expert agencies led by groups of principal officers removable by the President only for good cause, and (2) when Congress provides tenure protections to certain inferior officers with narrowly defined duties. Seila Law, 140 S.Ct. at 2191-92.
According to the Court, Congress, rather than creating a traditional independent agency headed by a multimember board or commission, placed the CFPB under the leadership of a single director who served a term of five years, and could only be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Id. at 2193. The Court determined that the CFPB's leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. The Court held that “when it comes to principal officers who, acting alone, wield significant executive power[, t]he Constitution requires that such officials remain dependent on the President, who in turn is accountable to the people.” Id. at 2211. The Court ultimately determined the offending provision that created the CFPB's director's removal protection was severable. Thus, CFPB would continue to operate, but the director would be subject to removal at will by the President.
The Commissioner concedes that 42 U.S.C. § 902(a)(3) violates the separation of powers to the extent it is construed as limiting the President's authority to remove the Commissioner without cause. The Commissioner argues, however, that the Social Security Administration's actions are not per se invalid simply because they can be traced back to an official subject to an unconstitutional removal protection. Rather, a plaintiff must show she was prejudiced by the unconstitutional provision.
The Commissioner cites to Collins v. Yellen, 141 S.Ct. 1761 (2021), a case involving the Federal Housing Finance Agency (“FHFA”). The FHFA was created to regulate the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), and the Nation's federal home loan banks. Id. at 1772. As in Seila Law, the FHFA was led by a director who served a five-year term and could be removed by the President only for cause. In Collins, shareholders brought a suit against the FHFA, alleging that the FHFA had exceeded its statutory authority in certain respects. In addition, the shareholders sought a declaration that the statutory restriction on the President's power to remove the FHFA director was unconstitutional, such that the complained-of acts were void.
The Collins Court determined that “[a] straightforward application of our reasoning in Seila Law dictates the result.” Id. at 1784. The question became, then, what relief was available to the shareholders. The Court observed that each FHFA director had been lawfully appointed; “there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to [the complained-of acts] as void. ” Id. at 1787. The Collins Court reiterated that the unlawfulness of a removal provision does not strip the head of the agency of the power to undertake the other responsibilities of his office. Id. at 1788, n.23. The Court determined, however, that the shareholders still could be entitled to retrospective relief: “Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from the moment of the provision's enactment), it is still possible for an unconstitutional provision to inflict compensable harm.” Id. at 1788-89. The Court remanded this issue to the lower courts for a resolution as to whether the shareholders suffered harm as a result of the unconstitutional provision.
The Commissioner argues that Plaintiff cannot show prejudice for at least two reasons. First, the Commissioner states that the ALJ's appointment was ratified by Acting Commissioner Berryhill in July 2018, prior to Plaintiff's application for benefits and prior to the appointment of Commissioner Saul. The Acting Commissioner enjoys no statutory tenure protection. 42 U.S.C. § 902(b)(2), (4). Thus, according to the Commissioner, there is no separation of powers concern in Plaintiff's case, and no nexus between the unconstitutional § 902(a)(3) provision protecting the Commissioner and any harm alleged by Plaintiff.
Second, the Commissioner urges that Plaintiff's separation of powers argument does not entitle her to a rehearing of her disability claims because she cannot show § 902(a)(3)'s removal restriction caused the denial of her benefits claim. The Commissioner notes that, as in Collins, the Commissioner of Social Security properly was appointed to his position; thus Commissioner Saul possessed the authority to undertake the responsibilities of office. According to the Commissioner, Plaintiff “cannot conceivably show how the President's supposed inability to remove the Commissioner without cause might possibly have affected any ALJ's disability benefits decision, much less the decision on Plaintiff's specific claim. Likewise, Plaintiff cannot conceivably show that the President's supposed inability to remove the Commissioner without cause affected the Appeals Council's denial of review of her specific claim.” (Dkt. No. 13, 15.)
Plaintiff does not dispute the Commissioner's position in her reply brief. Plaintiff also does not dispute the Commissioner's arguments that (1) any constitutional violation constituted harmless error; (2) rehearing is unwarranted under the de facto officer doctrine; (3) rehearing is unwarranted under the rule of necessity; and (4) prudential considerations bar Plaintiff's request for a rehearing. The undersigned recommends a finding that, as conceded by the Commissioner, § 902(a)(3) is unconstitutional to the extent it prohibits the President from removing the Commissioner at will. The undersigned further recommends a finding that Plaintiff has not shown she actually was harmed by the unconstitutional removal provision, such that she is not entitled to a rehearing de novo. Accord Brown v. Kijakazi, 1:20CV1035, 2022 WL 2222683 (M.D. N.C. Jun. 21, 2022); DeLeon v. Kijakazi, Civ. No. 21-508 GJF, 2022 WL 2355453 (D.N.M. Jun. 30, 2022); Gordon v. Kijakazi, Civil Action No. 3:21-CV-63, 2022 WL 2382290 (N.D. W.Va. May 24, 2022); Nathanial H. v. Kijakazi, Case No. 6:19-cv-01280-AA, 2021 WL 5921377 (D. Ore. Dec. 15, 2021).
IV. CONCLUSION
Overall, the ALJ's decision reflects a thorough review of Plaintiff's subjective complaints, the Administration's past decisions, the medical evidence of record, and the opinions provided by Plaintiff's medical examiners. For the reasons stated supra, this Court recommends a finding that substantial evidence supports the ALJ's finding that Plaintiff is capable of performing light work, and that his statement Plaintiff could lift and carry “up to 10 pounds” was a misstatement. This Court also recommends a finding that 42 U.S.C. § 902(a)(3) is unconstitutional, but that Plaintiff did not demonstrate that she was actually harmed as a consequence. This Court recommends a finding that substantial evidence supports the ALJ's evaluation of Plaintiff's social interactions. The undersigned recommends a finding, however, that the ALJ's step five analysis is not supported by substantial evidence. It is RECOMMENDED that the Commissioner's decision be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendation.
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 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).