Reilly v. Kijakazi

1

KEVIN LYONS REILLY, Plaintiff/ Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 7:20-CV-237-D

United States District Court, E.D. North Carolina, Southern Division

July 19, 2022

MEMORANDUM AND RECOMMENDATION

Robert B. Jones,Jr. United States Magistrate Judge

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-11, -17] pursuant to Fed.R.Civ.P. 12(c). Claimant Kevin Lyons Reilly (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits (“DIB”). Plaintiff filed a response to Defendant's motion, [DE-19-1], and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.

I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on November 9, 2017, alleging disability beginning January 9, 2017. (R. 15, 237-38). The claim was denied initially and upon reconsideration. (R. 15, 69-93). A telephonic hearing before an Administrative Law Judge (“ALJ”) was held on April 23, 2020, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 30-57). On May 18, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-29). On October 13, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-fmal administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the AL J is to evaluate a claim:

The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform .. . past work or (5) any other work.

Albright v. Comm'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). Theburden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).

In this case, Claimant alleges the ALJ's decision was not supported by the VE's findings at step five, and the final decision of the Commissioner was constitutionally defective. Pl.'s Mem. [DE-12] at 5-10.

IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment during the period from the alleged onset date through the date last insured. (R. 17). Next, the ALJ determined Claimant had the severe impairments of anxiety and depression, and the non-severe impairments of hypertension, history of gout, diverticulosis, benign positional vertigo, and mild obesity. (R. 17-18). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-19). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 18-19).

Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a full range of work at all exertional levels with the following limitations:

He could understand, remember, and follow simple instructions; maintain concentration, persistence, and pace for and adapt to and manage simple, routine tasks that do not require work with the general public. The claimant could work in proximity to but not in coordination with coworkers and could respond appropriately to supervisors if there is no more than occasional interaction. Additionally, the claimant could work in a low-stress job, defined as having no fixed production quotas with only occasional changes in the work setting.

(R. 19-24). In making this assessment, the ALJ found Claimant's statements about his limitations were not entirely consistent with the medical and other evidence. (R. 20).

At step four, the ALJ concluded Claimant could not perform the requirements of his past relevant work. (R. 24). However, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 24- 25).

V. DISCUSSION

A. The AL J's Step Five Determination

Claimant contends the ALJ's decision is not supported by the VE's testimony at step five. The ALJ found Claimant capable of work at all exertional levels with only non-exertional limitations, but the jobs identified by the VE at step five were only at the light and sedentary level. An individual of Claimant's age who is limited to unskilled work is disabled as a matter of law if he can only perform light or sedentary work. Thus, citing Distasio v. Shalala, 47 F.3d 348 (9th Cir. 1995), Claimant reasons that at step five the VE provided no evidence of jobs Claimant could perform that would support the ALJ's RFC determination, and Claimant must be found disabled if limited to unskilled light or sedentary work. Pl.'s Mem. [DE-12] at 5-7; Pl.'s Reply [DE-19-1] at 1-3. Defendant argues that the VE's testimony did not undermine the ALJ's conclusion that Claimant could perform work at all exertional levels with only non-exertional limitations and there is no error at step five. Def.'s Mem. [DE-18] at 20-23.

At step five of the sequential evaluation process, the burden is on the Commissioner to show that the claimant possesses the RFC to adjust to the demands of other work. 20 C.F.R. § 404.1520. “If the claimant has no nonexertional impairments that prevent her from performing the full range of work at a given exertional level, the Commissioner may rely solely on the Grids to satisfy his burden of proof.” Aistrop v. Barnhart, 36 Fed.Appx 145,146 (4th Cir. 2002). However, if the claimant does have nonexertional limitations, then the Grids serve “only as a guide,” and the ALJ “must prove through expert vocational testimony that jobs exist in the national economy which the claimant can perform.” Id. at 147; see also 20 C.F.R. § 404.1569a(d) (directing that when a claimant has a combination of exertional and nonexertional limitations, “we will not directly apply the rules in appendix 2 unless there is a...