Cassady v. Kijakazi

1

THOMAS CASSADY, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 21-82179-CV-Middlebrooks/Reinhart

United States District Court, S.D. Florida

February 21, 2023

REPORT AND RECOMMENDATION ON MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 20, 23)

BRUCE E. REISNHART UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the parties' cross motions for summary judgment filed by Thomas Cassady (“Plaintiff” or “Mr. Cassady”) (ECF No. 20) and Kilolo Kijakazi, Acting Commissioner of the Social Security Administration (“Defendant” or “Commissioner”) (ECF No. 23). I have reviewed the parties' cross motions for summary judgment and the Plaintiff's reply. Under the limited standard of review that governs this case, I find that the motions are ripe for disposition. For the reasons stated below, Plaintiff's Motion for Summary Judgment (ECF No. 20) should be GRANTED, Defendant's Motion for Summary Judgment (ECF No. 23) should be DENIED, and the Commissioner's decision should be REVERSED AND REMANDED.

BACKGROUND

On October 16, 2017, Mr. Cassady filed an application for a period of disability and disability insurance benefits (“DIB”) and for supplemental security income (“SSI”), alleging a period of disability beginning on September 1, 2015. R. 16.^[1]Mr. Cassady had a hearing before an Administrative Law Judge (“ALJ”) on June 21, 2019. R. 16. After a subsequent consultative examination of Mr. Cassady by Dr Roger Arumugam, the ALJ held a supplemental hearing on February 13, 2020. Id. Thereafter, the ALJ sent Mr Cassady for a second consultative examination before rendering her decision. Id.

The record contains the following facts adduced largely from Mr Cassady's testimony at the hearing, his medical records and the testimony of a vocational expert (“VE”).

At the time of his hearing, on June 21, 2019, Mr. Cassady was 51 years old. R. 48. Mr. Cassady has a high school equivalency degree (GED). R. 48. He has past work experience as an automobile dealer, valet, and a material handler. R. 47. Mr. Cassady's disability report lists eczema as his only condition limiting his ability to work. R. 272. During the hearing with the ALJ, Mr. Cassady testified that he also suffers from dermatitis. R. 40.

Mr. Cassady testified that he can't make a fist or grip, type or write, tie his shoes, button buttons, or mow the lawn. R. 40-42. He testified that he can stand for less than one hour at a time and that he is limited as to how far he can walk, but that he does not have any difficulty with sitting. R. 43-44. He testified that it would be a chore to lift a gallon of milk with gloves on. R. 44. He testified that he can only bend his fingers a little less than halfway before his skin breaks open. R. 45-46. His medical records during the relevant period describe the condition of his hands in various ways: (a) rash, (b) dry, scaly, and cracked, (c) with skin lesions, (d) erythematous patches with fissures, (e) reddened fingertips with slightly inflamed hands, and (f) red purple with flaky skin. R. 20-22, 372, 405, 411, 417, 431, 463. He also had some inflammation or scaly patches on his ankles and elbows during the relevant period. R. 21, 417, 463.

At the hearing, the ALJ heard testimony from VE Cynthia Stevens. The VE described Mr. Cassady's past relevant work positions as an automobile dealer as medium and unskilled work, as a valet as light and unskilled, and as a material handler as heavy and semi-skilled. R. 47. The ALJ then asked the VE seven hypotheticals. As relevant here, the first hypothetical asked whether an individual with the following limitations could perform Mr. Cassady's past relevant work:

Able to lift and/or carry 20 pounds occasionally and ten pounds frequently, sit for six hours, stand and/or walk for six hours, handle, finger. . . and feel frequently. Climb ramps and stairs occasionally, never climb ladders, ropes or scaffolds. Stoop and crouch frequent[ly], kneel and crawl occasional[ly], unprotected heights, never moving mechanical parts, never operate a motor vehicle, never be in humidity and wetness, being around dusts, odors, fumes or pulmonary irritants, extreme cold or extreme heat, and never work around vibration and also avoid hazards in the workplace.

R. 49. The VE responded that the hypothetical claimant could not perform Mr. Cassady's past work but could perform other jobs. Id. The VE testified the hypothetical claimant would be able to be an office helper, a mail clerk, and a delivery marker. R. 49-50.

In the second hypothetical posed to the VE, the ALJ asked her to assume an individual with the same functional abilities as the first hypothetical, except that the hypothetical claimant could handle, finger, and feel occasionally. R. 50. When asked whether this hypothetical claimant could perform the same jobs as the first hypothetical claimant, the VE testified that he would not be able to do so but would be able to perform work as a counter clerk and usher. Id. The ALJ subsequently asked the VE whether the additional limitation of no use of detergents of any kind would change the jobs indicated in response to the first or second hypothetical. R. 51. The VE indicated that the limitation would not change her testimony. Id.

During cross-examination of the VE, Mr. Cassady's counsel asked whether an individual with the same functional abilities as the first and second hypothetical, except with the additional limitation of needing to wear construction grade gloves, would be able to perform the jobs previously identified. R. 53-54. The VE testified that such a limitation would be considered a special accommodation and would eliminate certain jobs and result in a reduction in the number of other jobs available. R. 54-55. The ALJ stated that if she found that Mr. Cassady needed to use the type of gloves described, she would find that the limitation would result in an insignificant number of jobs. R. 58.

Based on the testimony, Mr. Cassady's medical records, and two consultative examination reports, on April 30, 2021, the ALJ issued an unfavorable decision finding that Mr. Cassady was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. R. 13-24. The Appeals Counsel denied his request for review on October 15, 2021, rendering the ALJ's decision the “final decision.” R. 1-3. Mr. Cassady filed this action in the District Court, requesting judicial review of the ALJ's decision. ECF No. 1.

In his Motion for Summary Judgment, Mr. Cassady seeks reversal of the ALJ's decision that he is not disabled on the grounds that (1) the ALJ failed to include his need to use gloves in his residual functional capacity assessment (“RFC”), (2) the ALJ found that Mr. Cassady could perform jobs with a Specific Vocational Preparation (“SVP”) level 2 despite the fact that the Social Security Administration (“SSA”) told Mr. Cassady that he could perform work requiring only a very short, on-the-job training period consistent with SVP level 1, (3) the ALJ denied Mr. Cassady's request to cross-examine the author of two adverse post-hearing reports after Mr. Cassady requested a supplemental hearing, and (4) the ALJ and Appeals Council did not have constitutional authority to decide the case because they were delegated authority by a former commissioner who was appointed through a constitutionally invalid structure. ECF No. 20 at 1-2, 10, 16. Because I find that Mr. Cassady's third argument requires a remand due to a violation of his due process rights, I discuss that issue first.

STANDARD OF REVIEW

This Court's review of the factual findings in disability cases is limited to an inquiry into whether substantial evidence exists to support the ALJ's findings and whether the correct legal standards were applied. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 (quoting Consol. Edison v. NLRB, 305 U.S. 197, 229 (1938)). If the ALJ's decision is supported by substantial competent evidence from the record as a whole, a court will not disturb that decision. Neither may a court reweigh the evidence nor substitute its judgment for that of the ALJ. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citing Philips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). Although factual findings enjoy such deference, a court is free to review the ALJ's legal analysis and conclusions de novo. See Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).

DISCUSSION

I. The Five Step Framework

A person who applies for social security disability benefits must prove his disability before being entitled to those benefits. See 20 C.F.R. § 404.1512. In determining disability, the ALJ considers a five-step evaluation process. See 20 C.F.R. § 404.1520. First, the claimant must prove he is not currently engaged in substantial gainful activity. Id. Second, the claimant must prove his impairment is “severe” in that it “significantly limits [his] physical or mental ability to do basic work activities . . .” Id. Third, the claimant must show he is disabled by proving that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. Before considering step four, the ALJ must determine the claimant's RFC, meaning his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. Id.;

20 C.F.R. § 404.1545. At step four, the claimant bears the burden of proving that...