Hattie B. v. Kijakazi

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HATTIE B., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. CA. 20-414-PAS

United States District Court, D. Rhode Island

December 14, 2021

MEMORANDUM AND ORDER

PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE

Now pending before the Court is the motion of Plaintiff Hattie B to reverse the decision of the Commissioner. ECF No. 13. She argues that the findings^[1] of the administrative law judge ("ALJ") are tainted because: (a) in formulating the residual functional capacity ("RFC") ^[2] the ALJ erroneously found persuasive and relied on the prior administrative medical findings of the three physicians who served as state agency experts, and found unpersuasive (as unsupported and inconsistent with other evidence) the opinion of a treating nurse practitioner; (b) the ALJ made material omissions in fashioning the RFC; and (c) at Step Four, the ALJ erroneously found that Plaintiff could still perform past relevant work ("PRW") without proper consideration of Plaintiff s testimony and the documentary evidence regarding her job duties. Id. at 10-17. Defendant Acting Commissioner Kilolo Kijakazi ("Commissioner") argues that the ALJ properly applied the law to the substantial evidence of record and that any errors are harmless; he has filed a counter motion for an order affirming the ALJ's decision. ECF No. 16. Having reviewed the entirety of the record, I find that the ALJ's findings are consistent with applicable law and sufficiently supported by substantial evidence; the only error is a harmless scrivener's mistake.

I BACKGROUND

Plaintiff Hattie B. is a high-school educated woman now in her sixties^[3] who had worked for seventeen years in the credit department of a textile company as a "senior credit associate" until she was laid off in May 2017, because her long-time employer merged with another entity and outsourced the function performed by her department. Tr. 38, 48, 58, 194, 260, 455. She claims she did not make a meaningful effort^[4] to find new work after she was laid off because of the limitations caused by the symptoms of an array of medical conditions.

On April 30, 2018, Plaintiff applied for Disability Insurance Benefits ("DIB") under 42 U.S.C. § 405(g) of the Social Security Act (the "Act"). Tr. 17. On November 19, 2019, the ALJ relied on what she found to be the persuasive prior administrative medical findings of three non-examining state-agency expert physicians (Drs. Borek, Kahn and Holley) and made the Step Two findings that obesity and chronic kidney disease ("CKD") were severe impairments, while the established impairments of diabetes, hypertension/hyperlipidemia, sleep apnea, diverticulosis, GERD, cervicalgia/myalgia (neck and shoulder), and thyroid and Vitamin D deficiency did not cause significant functional limitations and were all non-severe.^[5] Tr. 19-20. Proceeding further in the familiar sequential analysis, the ALJ found that Plaintiff retained the ability to perform medium work with environmental and postural limits (no more than frequent stooping, balancing, kneeling, crouching, crawling and climbing). Id. at 22.

At Step Four, the ALJ relied on a vocational expert ("VE"), who listened to Plaintiffs oral testimony describing (Tr. 37) her past work and had access to Plaintiffs written description of past work that she provided as part of her application (Tr. 185-86, 194). After confirming that he had "sufficient information to classify the past-relevant work," Tr. 53, the VE testified that Plaintiffs PRW was semi-skilled and sedentary and is captured in the Dictionary of Occupational Titles ("DOT") under the heading of "credit clerk," DOT No. 205.367-022, which is a semi-skilled sedentary position. Tr. 54; see also DOT No. 205.367-022 (U.S. Dept. of Labor 4th ed. 1991), 1991 WL 671717. Plaintiffs attorney's cross-examination of the VE confirmed that this classification came from the DOT. Tr. 57. Plaintiff did not ask the VE about the two other DOT classifications she had suggested in her pre-hearing brief, ^[6] Tr. 144, or whether, as performed, Plaintiffs past work was really a composite position with functional requirements more robust than those applicable to the "credit clerk" position. A week after the hearing was over and the VE was excused, Plaintiff filed a written objection to the VE's testimony that Plaintiffs PRW aligned with the functions required for a job DOT classifies as "credit clerk." Tr. 257-58. Pointing to her work history report, Plaintiff argued that her job was really a composite of "[c]redit [c]lerk" (the DOT job that the VE testified was appropriate) and "[c]ustomer [s]ervice [c]lerk," a DOT job that Plaintiff has since conceded is inapplicable.^[7] Id. The ALJ overruled this objection. Tr. 25 n.6. Based on the VE's unrebutted testimony and her RFC finding, the ALJ found that Plaintiff could perform her PRW as a credit clerk ("exertionally sedentary, semiskilled (SVP 4) employment") both "as actually and generally performed." Tr. 25. Alternatively, the ALJ found that, if she assumed Plaintiffs PRW had been a composite of "credit clerk" and "customer service clerk," as Plaintiffs objection argued, the result would be the same in that Plaintiffs RFC would "clearly allow for the performance of both of those DOT jobs at the very least as they both were actually performed by the claimant." Tr. 25 n.6.

Following an unsuccessful request for Appeals Council review, the Commissioner denied Plaintiffs applications based on the ALJ's decision.

II. STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - that is, the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel 71 F.Supp.2d 28, 30 (D.RI. 1999), affd, 230 F.3d 1347 (1st Cir. 2000) (per curiam). Once the Court concludes that the decision is supported by substantial evidence, the Commissioner must be affirmed, even if the Court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam); see also Barnes v. Sullivan. 932 F.2d 1356, 1358 (11th Cir. 1991); Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128-131 (1st Cir. 1981). The determination of substantiality is based upon an evaluation of the record as a whole. Brown, 71 F.Supp.2d at 30; see also Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (per curiam); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). Thus, the Court's role in reviewing the Commissioner's decision is limited. Brown, 71 F.Supp.2d at 30. The Court does not reinterpret the evidence or otherwise substitute its own judgment for that of the Commissioner. Id. at 30-31 (citing Colon v. Sec'y of Health & Human Servs., 877F.2d 148, 153 (1st Cir. 1989) (per curiam)). "[T]he resolution of conflicts in the evidence is for the Commissioner, not the courts." Id. at 31.

If the Court finds either that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim, the Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g). Allen v. Colvin, C. A. No. 13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3, 2015) (citing Jackson v. Chater, 99F.3d 1086, 1097-98 (11th Cir. 1996)).

III. DISABILITY DETERMINATION

The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 416(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.

A. The Five-Step Evaluation

The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. § 404.1520. First, if a claimant is working at a substantial gainful activity, the claimant is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments that significantly limit physical or mental ability to do basic work activities, then the claimant does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Appendix 1, the claimant is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent doing past relevant work, the claimant is not disabled. 20 C.F.R. § 404.1520(e)-(f). Fifth, if a claimant's impairments (considering RFC, age, education and past work) prevent doing other work that exists in the local or national economy, a finding of disabled is warranted. 20 C.F.R. § 404.1520(g). Significantly, the claimant bears the burden of proof at Steps One through Four, but the Commissioner bears the burden at Step Five. Sacilowski v. Saul 959 F.3d 431, 434 (1st Cir. 2020); Wells v. Barnhart 267 F.Supp.2d 138, 144 (D. Mass. 2003) (five step process applies to DIB claims).

B. Opinion Evidence

For applications like this one, filed on...