Patricia T. v. Kijakazi

PATRICIA T.^[1], Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 21-cv-1028 (GMH)

United States District Court, District of Columbia

August 22, 2022

MEMORANDUM OPINION

G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

Plaintiff Patricia T. filed this action seeking to reverse the final decision of the Acting Commissioner of Social Security Kilolo Kijakazi (“Defendant” or “the Commissioner”), denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits under Title II and XVI of the Social Security Act, 42 U.S.C. §§ 405(g), 1382(c)(3). Plaintiff alleges that the Administrative Law Judge (“ALJ”) who handled her claim failed to properly evaluate opinion evidence in determining that she is not disabled. She also argues that the Social Security Administration's (“SSA”) Appeals Council erroneously failed to consider additional evidence obtained after the ALJ rendered his decision. For those reasons Plaintiff asks that the ALJ's decision denying benefits be vacated and that the case be remanded for further administrative proceedings. The Commissioner takes the opposite position and urges affirmance of the ALJ's ruling. Upon consideration of the parties' briefs and the administrative record, the Court grants Plaintiff's motion and denies Defendant's motion.^[2]

I. BACKGROUND

A. Statutory and Regulatory Framework

To be eligible for SSI benefits under the Social Security Act, the SSA must find a claimant to be “disabled,” meaning that the individual is “unable 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). To make that determination, an ALJ gathers evidence, holds a hearing, takes testimony, and performs the following five-step, sequential inquiry of the disability claim:

Step one: whether the claimant is engaging in “substantial gainful activity”;^[3]

Step two: whether the claimant has a “severe” medically-determinable physical or mental impairment or combination of impairments;^[4]

Step three: whether the claimant's impairment is equivalent to one of the disabling impairments listed in the appendix of the relevant regulation, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the “Listings”); After step three, the ALJ determines the claimant's residual functional capacity (“RFC”)- i.e., the most he or she is able to do notwithstanding his or her physical and mental limitations;

Step four: whether the impairment prevents the claimant from performing his or her past relevant work;^[5] and

Step five: whether the claimant, in light of his or her age, education, work experience, and RFC, is unable to perform another job available in the national economy.^[6]

See 20 C.F.R. § 416.920; see also 20 C.F.R. § 404.1520 (outlining the five-step sequential inquiry for DIB claims); Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). “An affirmative answer to question 1 or negative answers to questions 2 or 4 result in a determination of no disability. Affirmative answers to questions 3 or 5 establish disability.” Hines v. Bowen, 872 F.2d 56, 58 (4th Cir. 1989).

The claimant bears the burden of proof at the first four steps of the evaluation. Callahan v. Astrue, 786 F.Supp.2d 87, 89 (D.D.C. 2011). At step five, the burden shifts to the Commissioner to identify specific jobs available in the national economy the claimant can perform. Id. In making this determination, an ALJ may call a vocational expert (“VE”) to testify at the hearing as to whether, based on the claimant's RFC, he or she can perform other work that exists in the national economy. Id. at 90. B. Plaintiff's Disability Claims, Procedural History, and the Administrative Hearing

Plaintiff is 51 years old and has a twelfth-grade education. ECF No. 14-2 at 76-77; ECF No. 14-5 at 7. She worked as a public school bus driver in the D.C. metropolitan area for seventeen years until she stopped working in June 2017. ECF No. 14-2 at 77-79; ECF No. 14-5 at 14.

Plaintiff filed applications for DIB on September 7, 2018, and for SSI benefits on October 11, 2018. ECF No. 14-2 at 11; ECF No. 20-1 at 3. She claimed that since June 17, 2017, she had been disabled due to gout, hypertension, gastroesophageal reflux disease (“GERD”), and arthritis of the back. ECF No. 20-1 at 3. Plaintiff's applications were denied initially on February 21, 2019, and upon reconsideration on May 21, 2019. ECF No. 14-2 at 11; ECF No. 20-1 at 3. On June 4, 2019, Plaintiff requested a hearing before an ALJ, which was held telephonically on April 2, 2020. ECF No. 14-2 at 11.

In advance of the April 2, 2020 hearing, Plaintiff either submitted all written evidence to the ALJ. Id.; ECF No. 14-6 at 66. In her document disclosure, Plaintiff noted that medical records requests sent to George Washington University Medical Faculty Associates (“GW MFA”) and Providence Internal Medicine remained outstanding. ECF No. 14-6 at 66-68. At the administrative hearing, Plaintiff's counsel requested an additional two weeks to submit the outstanding records from GW MFA and Providence Internal Medicine, which the ALJ granted. ECF No. 14-2 at 75-76. After the hearing, Providence Internal Medicine notified the ALJ that there were no medical records during the requested period between March 16, 2019, and January 30, 2020. ECF No. 14-2 at 11; ECF No. 14-7 at 132. However, GW MFA did submit records to the ALJ, which were admitted into the record. ECF No. 14-2 at 11; ECF No. 14-7 at 153-62.

At the hearing, the ALJ took the testimony of Plaintiff and a VE. ECF No. 14-2 at 76-102. Plaintiff testified that she stopped working in 2017 due to gout flare-ups in her foot, which prevented her from driving. Id. at 80. While she was still working, gout flare-ups would cause Plaintiff to sometimes take a week or two off from work. Id. at 80-81. Plaintiff testified that she still experienced gout flare-ups frequently. Id. at 81. She also said that she could sit for about 30 minutes at a time before needing to stand up due to aching in the lower back, hips, and legs. Id. at 82. Plaintiff further testified that she often needed get out of bed when sleeping to move around, which alleviated her pain. Id. at 83-84. According to Plaintiff, once she stood up, she could stand for 30 to 45 minutes. Id. at 82. She testified that she could walk for about five minutes at a time. Id. Plaintiff also stated that while she sometimes cooks and shops by herself, her son and daughter provide significant help. Id. at 83. Regarding her prior work as a school bus driver, Plaintiff testified that her regular morning shift lasted from 6:00 a.m. to 9:30 a.m. Id. at 84-86. Her afternoon shift would begin around 1:00 p.m. and end between 5:00 and 5:30 pm. Id. at 87-89. Plaintiff explained that three and a half hours was her longest continuous stretch of driving. Id. at 8991. She had an assistant who helped clean the bus by wiping down the seats, sweeping the floor, and picking up trash under the seats. Id. at 91-93.

Next, the ALJ asked the VE to classify Plaintiff's past work and answer a series of hypothetical questions. ECF No. 14-2 at 96-99.^[7] The VE explained that Plaintiff's past work as a school bus driver was “semi-skilled” with “a strength level of medium.” Id. at 96-97. The ALJ then posed a hypothetical individual of Plaintiff's age and education with the past work of a school bus driver who could occasionally lift, carry, push, and pull 50 pounds; frequently lift, carry, push, and pull 25 pounds; sit for six hours in an eight-hour work day; stand or walk for six hours in an eight-hour work day; frequently climb ramps and stairs, balance, kneel, crouch, and crawl; and occasionally climb ropes, ladders, scaffolds, and stoop. Id. at 97. Those capabilities tracked the exertional requirements of “medium” work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (defining “medium work” as involving “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds”). The VE testified that such a hypothetical individual could perform Plaintiff's past work as a school bus driver. Id. at 97-98. The ALJ then asked whether any skills would transfer from the past work as a school bus driver. Id. at 98. The VE responded that if the hypothetical individual were limited to light or sedentary work, there would be no transferrable skills and no ability to perform past work. Id.

Plaintiff's attorney then posed a series of hypothetical questions to the VE. Id. at 98-99. First, counsel proposed a hypothetical individual who needed to avoid prolonged sitting and standing, which meant that she could sit or stand for an hour at a time before needing a five-minute break. Id. at 98. The VE testified that such an individual could not work as a school bus driver. Id. Next counsel proposed a hypothetical individual who could rarely lift twenty pounds and occasionally lift less than twenty pounds. Id. at 98-99. The VE opined that this hypothetical individual also could not work as a school bus driver. Id. at 99. Finally, Plaintiff's counsel proposed a hypothetical individual who has gout flare-ups, which cause her to unexpectedly miss two days of work in a row once a month. Id. The VE responded that such an individual could not maintain competitive employment. Id. The ALJ then proposed a hypothetical individual who could sit or stand for only four hours at a time, totaling to six hours in an eight-hour work day. Id. The VE testified that such an individual could perform Plaintiff's past work as a school bus driver as she performed it. Id. at...