Etze v. Kijakazi

1

KAREN ETZE, Plaintiff, v. KILOLO KIJAKAZI, et al., Defendants.

Civil Action No. 22-32

United States District Court, E.D. Pennsylvania

May 26, 2023

MEMORANDUM

PAMELA A. CARLOS, U.S. Magistrate Judge.

Karen Etze seeks review, under 42 U.S.C. § 405(g), of the Social Security Commissioner's denial of her claim for Supplemental Security Disability Benefits. For the reasons stated below, I affirm the Commissioner's decision and Ms. Etze's Request for Review is denied.^[1]

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms Etze was born on October 9, 1961.^[2] She graduated high school and completed one year of college.^[3] Ms. Etze has past relevant work as a claims specialist.^[4] On July 9, 2019, Ms. Etze applied for Social Security Disability Benefits, alleging disability beginning on February 15, 2019 due to post-concussion syndrome, traumatic brain injury, whiplash, cervical degenerative disc disease, cervical radiculopathy, chronic pain, vestibular migraines, vertigo, cognitive disorder and osteoarthritis of the hands.^[5] The Commissioner denied the claim initially on October 3, 2019 and again upon reconsideration on July 29, 2020.^[6]

Ms Etze requested a hearing to review her denial, and Administrative Law Judge Regina L. Warren (“ALJ”) conducted a telephone hearing on March 16 2021.^[7] Attorney Thomas J. Giordano, Jr. represented Ms. Etze at the hearing, where the ALJ heard testimony from both Ms Etze and Vocational Expert Christine Carrozza-Slusarski (“VE”). On April 14, 2021, the ALJ found Ms. Etze to be not disabled under the Social Security Act (the “Act”).^[8]

The ALJ's Decision

The Social Security Administration applies a five-step sequential analysis to determine disability under the Act.^[9] At step one, the ALJ determines whether the claimant is engaging in “substantial gainful activity” as defined by Social Security regulations.^[10] A claimant is not considered disabled if she engages in substantial gainful activity, regardless of age, education, work experience, or the severity of her physical and mental impairments.^[11] But if the claimant is not engaging in substantial gainful activity, the analysis proceeds to step two. Here, the ALJ found Ms. Etze has not engaged in substantial gainful activity since the alleged onset date of February 15, 2019.^[12]

At step two, the ALJ determines the severity of the claimant's medical or mental impairments, or combination of impairments.^[13] The claimant is not disabled if she does not “have any impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities.”^[14] “The step-two inquiry is a de minimis screening device to dispose of groundless claims.”^[15] “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have ‘no more than a minimal effect on an individual's ability to work.'”^[16] If the evidence establishes more than a “slight abnormality,” the “step-two requirement of ‘severe' is met, and the sequential evaluation process should continue.”^[17] The ALJ found Ms. Etze suffers the following severe impairments: degenerative disc disease of the cervical spine, traumatic brain injury, and vestibular dysfunction.^[18] But the ALJ also found Ms. Etze's medically determinable impairment of post-concussive syndrome to be non-severe because it causes no more than minimal limitation in her ability to perform basic mental work activities.^[19]

At step three, the ALJ determines whether the claimant's impairment or combination of impairments meet or equal one of the listed impairments in the Act^[20] and whether the impairment is expected to result in death, or last, or be expected to last for a minimum period of twelve continuous months.^[21] If her impairment matches the listed impairments and meets the duration requirement, the claimant is considered disabled and the analysis ends.^[22] But the ALJ proceeds to step four if the claimant's impairments fail to match the listed impairments.^[23] The ALJ found Ms. Etze does not have an impairment or combination of impairments which meets or medically equals the severity of one of the listed impairments under the Act.^[24]

At step four, the ALJ assesses, in consideration of the whole record, whether the claimant has a residual functional capacity (“RFC”) to satisfy the physical and mental demands of past relevant work.^[25] RFC is the most a claimant can do, despite the limitations caused by her impairment or impairments.^[26] The ALJ found Ms. Etze has an RFC to perform light work subject to several limitations.

[Ms. Etze] can stand for 6 hours and sit for 6 hours. [She] is unlimited with pushing and pulling. [She] can do no climbing of ladders, ropes or scaffolds but can occasionally perform all other postural movements. [Ms. Etze] must avoid environmental hazards, extreme heat, extreme cold, wetness, humidity, vibration, fumes, odors, dusts, gases and poor ventilation.^[27]

The ALJ stated she considered all the symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, and considered the medical opinion(s) and prior administrative medical finding(s) based on requirements of the Act.^[28] At the March 2021 hearing, the ALJ posed a hypothetical question to the VE to better ascertain Ms. Etze's ability to perform past relevant work.^[29] The ALJ asked,

Q: Assume a person of [Ms. Etze's] same age, education, and background who could perform light work as light is defined in the regulations. The individual could stand and walk for six [hours], sit for six [hours], unlimited pushing and pulling. Now posturally, the individual could perform postural activities on an occasional basis and should not climb any ladders, ropes, or scaffolds. From a manipulative standpoint the individual could perform manipulative activities on a frequent basis. From an environmental standpoint the individual should avoid extreme heat, cold, wetness, humidity, vibration, fumes, odors, dust, gas, poor ventilation, and unprotected heights, and hazards. Under this hypothetical, could an individual perform the past work at least as performed?

A: Yes.^[30]

The ALJ found Ms. Etze capable of performing past relevant work as a claims specialist.^[31]

The ALJ noted she compared the RFC assessment with the physical and mental demands of the work of a claims specialist and found Ms. Etze capable to perform those demands as actually performed.^[32] Thus, the ALJ ended her analysis here without proceeding to step five.

The ALJ concluded Ms. Etze to be not disabled.^[33] The Administration Appeals Council affirmed the ALJ's decision and denied Ms. Etze's request for review, meaning the ALJ's written opinion became the final decision of the Commissioner.^[34] Ms. Etze now timely appeals.

Ms. Etze's Federal Request for Review

In her federal request for review, Ms. Etze claims (1) the ALJ failed to consider the impact of mild mental limitations on her ability to perform her skilled past relevant work; (2) the “appointment of Andrew Saul as a single Commissioner of the Social Security Administration . . . who is removable only for cause and serves a longer term than that of the President violates separation of powers,” and renders the ALJ's decision constitutionally defective because the ALJ's authority was derived from Mr. Saul; and (3) the ALJ and Appeals Council lacked legal authority to adjudicate her case as a result of their improper appointment by Nancy Berryhill.^[35] Ms. Etze requests her case be reversed and remanded for an award of benefits, or alternatively, remand to the Commissioner for a rehearing by a new properly appointed ALJ.^[36]

I. STANDARD OF REVIEW

The court's role on judicial review is “limited” to determining whether the Commissioner's decision is supported by “substantial evidence.”^[37] Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”^[38] This is “more than a mere scintilla but may be somewhat less than a preponderance of the evidence.”^[39] Under this deferential standard,^[40] we look “to an existing administrative record and ask[] whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.”^[41] If supported by substantial evidence, the agency's factual findings are conclusive and must be upheld.^[42] When considering a case, we “cannot conduct a de novo review of the Commissioner's decision no[r] can [we] reevaluate the evidence contained in the record; or impose our own factual determinations, [we] can only judge the propriety of the decision in reference to the grounds invoked by the Commissioner when the decision was rendered.”^[43]

II. DISCUSSION

A. The ALJ properly accounted for Ms. Etze's mild mental limitations in her RFC assessment.

Ms Etze contends the ALJ committed reversible error by failing to account for mild limitations of mental functioning in the RFC assessment and hypothetical question.^[44] Ms. Etze argues the “failure to include any mental functional limitations in the RFC finding and dispositive hypothetical question means that [her] mild mental limitations were not accounted for and remand is required.”^[45] “[M]ild limitations in the relevant domains of mental functioning must be included in an RFC assessment and hypothetical question posed to the VE that the ALJ relies upon.”^[46] But while “the findings at steps two and three are important to the ALJ's statement of a claimant's limitation[, they] do not require the use of any particular language” at steps four and five.^[47] It is well settled that “an RFC assessment does not need to contain...