Latrice D. v. Kijakazi

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LATRICE D. PLAINTIFF v. KILOLO KIJAKAZI, Acting Commissioner of Social Security^[1] DEFENDANT

Civil Action NO. 3:22-CV-00115-RGJ-RSE

United States District Court, W.D. Kentucky, Louisville Division

August 15, 2022

REPORT AND RECOMMENDATION

Regina S. Edwards, Magistrate Judge United States District Court

The Commissioner of Social Security denied Latrice D.'s (“Plaintiff's”) applications for disability insurance and supplemental security income benefits. Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (DN 1). Both Plaintiff (DN 11) and the Commissioner (DN 13) have filed a Fact and Law Summary. The District Judge referred this case to the undersigned United States Magistrate Judge to review the Fact and Law Summaries and submit Findings of Fact Conclusions of Law, and Recommendations pursuant to 28 U.S.C § 636(b)(1)(B). (DN 10).

I. Findings of Fact

Plaintiff is 29 years old, lives in Louisville, Kentucky, and completed four or more years of college. (Tr. 204, 237, 242). Plaintiff is presently unemployed but has past relevant work experience as a peer support specialist at Seven Counties from October 2018 to July 2019 and a janitorial custodian with Compass Group for approximately two months in 2016. (Tr. 242; Tr. 4041). On March 30, 2020, Plaintiff protectively filed for disability insurance benefits (“DIB”) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 1382c(a)(3) (“Act”), and for supplemental security income (“SSI”) benefits under Title XVI of the Act, alleging disability beginning on July 30, 2019. (Tr. 207-08). Plaintiff claimed she could not perform work at substantial gainful levels due to borderline personality disorder, major depressive disorder, anxiety disorder, social anxiety, and a learning disability. (Tr. 241). Her applications were denied initially on May 4, 2020 (Tr. 90) and upon reconsideration on September 18, 2020 (Tr. 95). At Plaintiff's request, a hearing was conducted in Louisville, Kentucky before Administrative Law Judge Dwight Wilkerson (“ALJ Wilkerson”) on June 4, 2021. (Tr. 31-56). ALJ Wilkerson issued an unfavorable decision on September 21, 2021. (Tr. 13-26).

ALJ Wilkerson applied the traditional five-step sequential analysis promulgated by the Commissioner for evaluating a disability claim, 20 C.F.R. § 404.1520, Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010), and found as follows. First, Plaintiff has not engaged in substantial gainful activity since March 20, 2020. (Tr. 18). Second, Plaintiff has the severe impairments of depression, anxiety, borderline personality disorder, attention deficit hyperactive disorder (ADHD), borderline intellectual disorder, and cannabis use disorder. (Tr. 19). ALJ Wilkerson also found that Plaintiff has the non-severe impairment of obesity. (Id.). Third, none of Plaintiff's impairments or combination of impairments meets or medically equals the severity of a listed impairment under 20 C.F.R. Pt. 404, Subpt. P, App'x 1. (Id.). ALJ Wilkerson then determined Plaintiff has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the following non-exertional limitations:

She can understand, remember, and carry out simple tasks and can perform work requiring little independent judgment and involving minimal variations; she can perform work in a lower stress work environment without strict production quotas, fast pace, or interaction with the public, but she can interact frequently as needed with supervisors and peers sufficiently for task completion; and she can adapt to occasional changes with reasonable support and structure.

(Tr. 20-21). Fourth, ALJ Wilkerson found Plaintiff unable to perform any of her past relevant work as actually or generally performed. (Tr. 24). Fifth and finally, considering Plaintiff's age, education, work experience, and RFC, ALJ Wilkerson determined there are jobs that exist in significant numbers in the national economy that she can perform. (Tr. 24-25).

Based on this evaluation, ALJ Wilkerson concluded that Plaintiff was not disabled, as defined in the Social Security Act, from March 20, 2020 through the date of his decision. (Tr. 25). Plaintiff sought review of ALJ Wilkerson's decision. (Tr. 201-03). The Appeals Council declined review on December 27, 2021. (Tr. 1). At that point, the denial became the final decision of the Commissioner, and Plaintiff sought judicial review from this Court. (DN 1).

II. Standard of Review

When reviewing the administrative law judge's decision to deny disability benefits, the Court may “not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted). Instead, the Court's review of the administrative law judge's decision is limited to an inquiry as to whether the administrative law judge's findings are supported by substantial evidence, 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (internal citations omitted), and whether the administrative law judge employed the proper legal standards in reaching his conclusion. See Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Substantial evidence exists “when a reasonable mind could accept the evidence as adequate to support the challenged conclusion, even if that evidence could support a decision the other way.” Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993). The Supreme Court has clarified that “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high[.]” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted).

III. Conclusions of Law

Plaintiff presents a host of claims. First, she suggests ALJ Wilkerson erred in finding she did not have a listing-level impairment at step three. (DN 11, at PageID # 789). Second, Plaintiff argues ALJ Wilkerson's RFC determination is contradicted by objective evidence in the record. (Id. at PageID # 793). Plaintiff also offers that ALJ Wilkerson's finding related to transferability of job skills was plagued by his erroneous RFC determination. (Id. at PageID # 798). Lastly, Plaintiff contends ALJ Wilkerson's questions to the vocational expert at the hearing did not accurately portray her mental impairments. (Id.). Relying on these objections, Plaintiff submits ALJ Wilkerson's decision was not supported by substantial evidence. (Id.).

The Commissioner counters that Plaintiff failed to meet her burden of demonstrating a presumptively disabling listed impairment at step three, and that ALJ Wilkerson did not err in finding the same. (DN 13, at PageID # 810). The Commissioner further argues that ALJ Wilkerson “exhaustively considered” the record evidence and fashioned an RFC supported by it. (Id. at PageID # 818). The Commissioner did not address Plaintiff's criticism of ALJ Wilkerson's transferability of job skills finding or his questions to the vocational expert during the hearing.

A. Listed Impairments

At step three of the sequential evaluation, ALJ Wilkerson considered whether Plaintiff's mental impairments, singly or in combination, met the criteria of Listing 12.02, 12.04, 12.06, or 12.08. (Tr. 19). Plaintiff believes her impairments satisfy the “Paragraph B” criteria required by each of these listings because she has two marked limitations in her mental functioning. (DN 11, at PageID # 792). The Commissioner suggests Plaintiff failed to show her impairments met any of the diagnostic criteria of a listing-level impairment. (DN 13, at PageID # 809). The Commissioner also notes that ALJ Wilkerson considered the evidence Plaintiff relies on in her fact and law summary and appropriately determined it was insufficient to show a disabling impairment. (Id. at PageID # 809-15).

A claimant must meet a substantial burden to demonstrate a listed impairment at step three. Listed impairments are considered by the Social Security Administration to be “severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” Reynolds v. Comm's of Soc. Sec., 424 Fed.Appx. 411, 414 (6th Cir. 2011). To be considered disabled at step three, “a claimant must establish that his condition either is permanent, is expected to result in death, or is expected to last at least 12 months, as well as show that his condition meets or equals one of the listed impairments.” Evans v. Secretary of Health & Human Services, 820 F.2d 161, 164 (6th Cir.1987). “An impairment satisfies the listing only when it manifests the specific findings described in the medical criteria for that particular impairment.” Bluer v. Comm'r of Soc. Sec., No. 1:13-CV-22, 2014 WL 700424, at *4 (W.D. Mich. Feb. 24, 2014) (citing 20 C.F.R. §§ 404.1525(d); 416.925(d)). Because a claimant who meets the requirements of a listed impairment at step three will be deemed conclusively disabled and entitled to benefits, the burden on the claimant is high. Robinson v. Comm'r of Soc. Sec., 426 F.Supp.3d 411, 421 (E.D. Mich. 2019).

Plaintiff does not allege that she meets a specific listing. Nor does she attempt to demonstrate that she meets all the elements of any particular listing. Rather, she simply argues she meets the “Paragraph B” criteria and, presumably then, meets any or all of the four listings ALJ Wilkerson considered. These include neurocognitive disorders under Section 12.02; depressive, bipolar, and related disorders under Section 12.04; anxiety and compulsive disorders under Section 12.06; and personality and impulse-control disorders under Section 12.08. (Tr. 19).

A commonality among the...