Opinion
CIV-20-905-HE
02-25-2022
DEBRA MCNEIL, on behalf of RONATE KING, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [1] Defendant.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Debra McNeil (“Plaintiff”) brings this action on behalf of Ronate King (“Claimant”) pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying Claimant's application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f. (Doc. 1). United States District Judge Joe Heaton referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C), and Federal Rule of Civil Procedure 72(b). (Doc. 17). The Commissioner has answered the Complaint and filed the Administrative Record (“AR”) (Docs. 11, 12), and the parties have fully briefed the issues. (Docs. 20, 23, 24).
Citations to the parties' briefs refer to the Court's CM/ECF pagination. Citations to the Administrative Record refer to its original pagination.
Now, for the reasons set forth below, the undersigned recommends that the Court REVERSE the Commissioner's decision and REMAND the matter for further proceedings.
I. Procedural History
Plaintiff filed applications in March of 2018 for DIB and SSI, alleging a disability onset date of September 1, 2013. (AR, at 236-48). The SSA denied the application initially and on reconsideration. (Id. at 76-79, 100-03). An administrative hearing was then held on October 31, 2019. (Id. at 35-75). Afterwards, the Administrative Law Judge (“ALJ”) issued a decision finding that Plaintiff was not disabled. (Id. at 12-34). The Appeals Council subsequently denied Plaintiff's request for review. (Id. at 1-6). Thus, the ALJ's decision became the final decision of the Commissioner. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 404.981.
II. The Administrative Decision
At Step One, the ALJ found that Claimant had not engaged in substantial gainful activity since September 1, 2013, the alleged onset date. (AR, at 17). At Step Two, the ALJ found that Claimant had the severe impairment of schizophrenia. (Id.) At Step Three, the ALJ found that Plaintiff had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id. at 17-18). The ALJ then determined that Plaintiff had the RFC
to perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant is able to understand, remember, and carry out simple tasks with simple instructions in a routine work setting. . . . The claimant is able to perform work requiring occasional interaction with coworkers and supervisors. The claimant is unable to perform work
requiring interaction with the general public, but contact would be okay. The claimant is unable to perform tandem or teamwork. The claimant is able to perform work with occasional changes in work processes. The claimant will be off task ten percent of the workday.(Id. at 20) (emphasis added). Then, at Step Four, the ALJ found that Claimant could not perform any past relevant work. (Id. at 27). At Step Five, however, the ALJ found when “considering 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” such as a cleaner, dish washer, or floor waxer. (Id. at 28). Thus, the ALJ found that Claimant had not been under a disability since September 1, 2013. (Id.)
III. Claims Presented for Judicial Review
On appeal, Plaintiff raises three issues regarding the ALJ's analysis. (Doc. 20, at 3). First, she asserts that the ALJ's unfavorable decision is not supported by substantial evidence because the vocational expert (“VE”) gave inconsistent testimony that was unresolved by the ALJ, causing error at Step Five. (Id. at 3-5). Plaintiff next argues that the ALJ erred when she failed to find Claimant's borderline intellectual functioning to be a severe impairment. (Id. at 5-8). And finally, Plaintiff alleges the ALJ erred in her evaluation of the treating psychiatrist's medical opinion. (Id. at 8-11).
In response, the Commissioner argues that “the vocational expert's testimony can be harmonized with the ALJ's decision” such that the ALJ's Step Five findings and disability determination are supported by substantial evidence. (Doc. 23, at 13-15). The Commissioner also argues that the ALJ adequately considered Claimant's borderline intellectual functioning and the psychiatrist's medical opinion. (Id. at 8-13).
IV. The Disability Standard and Standard of Review
The Social Security Act defines “disability” 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 12 months.” 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is an impairment “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A medically determinable impairment must be established by “objective medical evidence” from an “acceptable medical source, ” such as a licensed physician or a licensed and certified psychologist; whereas the claimant's own “statement of symptoms, a diagnosis, or a medical opinion” is not sufficient to establish the existence of an impairment. 20 C.F.R. §§ 404.1521, 416.921; see 20 C.F.R. §§ 404.1502(a), 404.1513(a), 416.902(a), 416.913(a). A plaintiff is disabled under the Social Security Act “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (explaining five steps and burden-shifting process). To determine whether a claimant is disabled, the Commissioner inquires: (1) whether the claimant is engaged in any substantial gainful activity; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) considering the Commissioner's assessment of the claimant's residual functional capacity (“RFC”), whether the impairment prevents the claimant from continuing claimant's past relevant work; and (5) considering assessment of the RFC and other factors, whether the claimant can perform other types of work existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). Plaintiff bears the “burden of establishing a prima facie case of disability under steps one, two, and four” of the SSA's five-step procedure. Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). If the plaintiff makes this prima facie showing, “the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of [claimant's] age, education, and work experience.” Id. “The claimant is entitled to disability benefits only if [Claimant] is not able to perform other work.” Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
RFC is “the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 416.945(a)(1).
This Court's review of the Commissioner's final decision is limited “to determin[ing] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “It means - and means only - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks and citation omitted). A court's review is based on the administrative record, and a court must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted). Even if a court might have reached a different conclusion, the Commissioner's decision stands if it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
V. Analysis
A. The ALJ's Decision is Not Supported by Substantial Evidence Because the ALJ Failed to Reconcile the VE's Contradictory Testimony.
Plaintiff argues that the ALJ erred in finding that Claimant's RFC would allow him to perform other work that exists in significant numbers in the national economy. (Doc. 20, at 4-5). Plaintiff points to conflicting testimony from the VE at the administrative hearing. (Id. (citing AR, at 70, 73)). Upon review, the undersigned agrees that the VE's testimony was contradictory and that the ALJ neither sought clarification at the hearing nor distinguished the VE's statements in her decision, causing error at Step Five.
RFCs represent the most an individual can do. 20 C.F.R. § 416.945(a)(1). Here, when crafting Claimant's RFC, the ALJ found that Claimant was limited to work involving only “occasional interaction with coworkers and supervisors.” (AR, at 20). And when questioned by the ALJ, the VE testified that an individual with such limitations would be able to perform other work that exists in significant numbers in the national economy, such as a cleaner, dish washer, or floor waxer. (Id. at 70). Yet, when Claimant's counsel posed the question in the inverse, where an individual was “frequently unable to interact with others, ” the VE testified, “that limitation would be work preclusive.” (Id. at 73). The VE's testimony is inherently contradictory. Inserting the Agency's definitions into the VE's testimony, she stated that an individual who is able to interact with coworkers and supervisors for only up to one-third of the eight-hour workday (very little - 2.67 hours) would be able to perform other work. She then stated that an individual who is unable to interact with others for one-third to two-thirds of the workday (2.67 - 5.33 hours) would not be able to perform other work. (Compare AR, at 70 with AR, at 73).
The Agency defines “occasional” as “occurring from very little up to one-third of the time.” SSR 83-10.
The Agency defines frequently as “occurring from one-third to two-thirds of the time.” SSR 83-10.
The court in Zabukovec v. Comm'r of Soc. Sec., 2019 WL 4694224 (N.D. Ohio Sep. 26, 2019), was presented with similar testimony. In that case, the VE testified, in response to the ALJ's questioning, that limiting a worker to only “occasional and superficial interaction” with others would not preclude such a worker from employment; but, in response to Plaintiff's counsel's questioning, the VE testified that an individual who was unable to interact with coworkers and supervisors for two-thirds of a workday would be unable to maintain employment. Id. at *1. The court found the statements inconsistent and that the ALJ's failure to address and resolve the inconsistency warranted remand. Id. at *2. See also Hamilton v. Comm'r of Soc. Sec., 2019 WL 6211101, at *6 (D.N.J. Nov. 21, 2019) (“This Court finds that the ALJ's RFC finding, which requires . . . ‘no more than occasional interaction with the general public, coworkers, and supervisors,' is virtually indistinguishable from the hypothetical posed by Plaintiff's attorney, which noted ‘difficulties interacting appropriately.'”).
The Commissioner attempts to differentiate the two hypotheticals by pointing to Plaintiff's counsel's addition of the phrase “on an appropriate basis” to describe the type of interaction. (Doc. 23, at 15). The undersigned, however, declines to adopt this interpretation, understanding that the Agency's use of the term “interacting” implies that such interactions be appropriate. See Hamilton, 2019 WL 6211101, at *6 (asking the ALJ, on remand, to explain “how ‘no more than occasional interaction with the public, supervisors and coworkers,' does not necessarily imply ‘difficulties interacting appropriately' with those individuals.”). To find otherwise defies common sense, the guiding principle behind the Agency's regulations and decisions. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (“[C]ommon sense, not technical perfection, is our guide.”).
Where there is even “seemingly contradictory testimony” offered by the VE in the record, the ALJ must resolve the conflict and explain on the record how the matter was resolved. See SSR 00-4p, Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational Information in Disability Decisions; see, e.g., Hamilton, 2019 WL 6211101, at *6 (remanding, in part, based on the ALJ's failure to address and resolve the VE's “seemingly contradictory testimony” in his opinion); Zabukovec, 2019 WL 4694224, at *1 (remanding because the ALJ “did nothing to either acknowledge the [conflicting VE testimony] or to remedy the confusion”). Here, much like in Hamilton and Zabukovec, the ALJ failed to seek clarification from the VE about the distinction between Plaintiff's attorney's hypothetical and the ALJ's earlier hypothetical. The ALJ further failed to address this aspect of the VE's testimony at all in her decision. (See AR, at 28). It is the Agency's burden at Step Five to show that there is work Claimant can perform under the RFC, and to support its decision by substantial evidence. See Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005) (shifting the burden of proof from the Claimant to the Commissioner, requiring the Commissioner “to show that the claimant retain[ed] sufficient RFC to perform work in the national economy, given [his] age, education, and work experience.”). The ALJ's Step Five findings were “based on the testimony of the vocational expert.” (AR, at 28). By relying on the VE's testimony, without addressing and resolving the inherent inconsistencies, the Commissioner's Step Five findings are not supported by substantial evidence.
The undersigned declines to accept the Commissioner's proposition that Plaintiff's failure to confront the VE about this conflict or to raise this issue to the ALJ at the time the testimony was given strips Plaintiff of her ability to rely on this conflict for remand purposes. (Doc. 23, at 14-15). In support of this proposition, the Commissioner cites Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). The discussion in Hawkins, however, addressed the need to gather more evidence, for example by way of a consultative examination. Id. (citing Glass v. Shalala, 43 F.3d 1392, 1394-96 (10th Cir. 1994) (refusing to remand where the ALJ had carefully explored the applicant's claims and where counsel representing claimant failed to specify the additional information sought)). Here, Plaintiff does not allege a lack of evidence, but rather a lack of analysis. Thus, the duty of Plaintiff's counsel set forth in Hawkins, to “identify [for the ALJ] the issue or issues requiring further development” in order to ensure “claimant's claims are adequately explored, ” is inapplicable here.
The Commissioner's final argument cautions the Court against reweighing the evidence to reach a conclusion inconsistent with the ALJ's decision. (Doc. 23, at 15 (citing Lax v. Astrue, 489 F.3d 1080, at 1084 (10th Cir. 2007)). The Court, here, need not reweigh the evidence. The Court must, however, be convinced that the ALJ appropriately considered the evidence. Without confirmation that the ALJ recognized - much less addressed or resolved - the VE's inconsistent testimony, the Court cannot make such a determination. Thus, on remand, the ALJ must clarify how a limitation of only “occasional interaction with coworkers and supervisors, ” does not necessarily imply “frequently unable to interact with others.”
B. The Court Declines to Address Plaintiff's Remaining Allegations.
Because remand is warranted based on the above issue alone, the undersigned need not address Plaintiff's other claims of error. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”).
VI. RECCOMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned recommends that the Court REVERSE the Commissioner's decision and REMAND the matter for further proceedings.
The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections must be filed with the Clerk of this Court by March 18, 2022. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this case.
SO ORDERED this 25th day of February, 2022.