Alex C. v. Kijakazi
| Decision Date | 16 February 2023 |
| Docket Number | 3:22 CV 117(MPS)(RMS) |
| Parties | ALEX C.[1], Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — District of Connecticut |
RECOMMENDED RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER, OR, IN THE ALTERNATIVE, FOR REMAND FOR A REHEARING, AND ON THE COMMISSIONER'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
Before the Court is an administrative appeal filed by Alex C (“the plaintiff”) pursuant to 42 U.S.C. § 405(g) following the denial of his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”), alleging disability beginning September 1, 2019.[2] The plaintiff moves for an order reversing the decision of the Commissioner of the Social Security Administration (“Commissioner”), or in the alternative, to remand for a rehearing on the grounds that Administrative Law Judge (“ALJ”) Matthew Kuperstein erred by: 1) improperly weighing medical opinion evidence; 2) incorrectly formulating the plaintiff's residual functional capacity (“RFC”); 3) failing to develop the record; and 4) failing to meet his burden at step five. (Doc. No. 16-1 at 2). The Commissioner moves to affirm the decision below, arguing that it is supported by substantial evidence. (Doc. No. 18-1 at 25).
For the reasons set forth below, the undersigned respectfully recommends that the plaintiff's Motion for Order Reversing the Decision of the Commissioner, or, in the Alternative, Motion for Remand for a Rehearing, (Doc. No 16), be GRANTED and that that the case be remanded for further administrative proceedings consistent with this ruling. Accordingly, the undersigned respectfully recommends that the Commissioner's Motion for an Order Affirming the Commissioner's Decision, (Doc. No. 18), be DENIED.
The plaintiff alleges that his disability began on September 1, 2019. (Doc. No. 16-1 at 2; Certified Transcript of Administrative Proceedings, dated December 23, 2021 (“Tr.”) 10). On September 9, 2019, the plaintiff filed applications for DIB and SSI. (Tr. 10). The Commissioner denied the plaintiff's applications initially on February 6, 2020, and upon reconsideration on July 2, 2020. (Id.).
The plaintiff requested a hearing on September 3, 2020 and appeared with an attorney by telephone before ALJ Kuperstein on April 21, 2021.[3](Id., citing 20 CFR §§ 404.936(c), 416.1436(c)). Vocational expert (“VE”) John Bopp also appeared by telephone and testified. (Tr. 10). On July 8, 2021, ALJ Kuperstein issued an unfavorable decision denying the plaintiff's request for benefits. (Tr. 10-24). On November 26, 2021, the Appeals Council denied the plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (Doc. No. 16-1 at 2).
On January 21, 2022, the plaintiff filed this action, (Doc. No. 1), and on April 5, 2022, absent consent, the case was referred to the undersigned for all purposes including the issuance of a recommended ruling. (Doc. No. 13). On March 21, 2022, the Commissioner filed the certified administrative record. (Doc. No. 11). On May 5, 2022, the plaintiff filed a Consent Motion for Extension of Time to file a motion to reverse the Commissioner's decision, (Doc. No. 14), which the undersigned granted. (Doc. No. 15). On June 21, 2022, the plaintiff timely filed his Motion to Reverse the Decision of the Commissioner, or, in the Alternative, for Remand for a Rehearing, (Doc. No. 16), together with a Statement of Material Facts, (Doc. No. 16-2), and a brief in support. (Doc. No. 16-1). On July 21, 2022, the Commissioner filed its Motion for an Order Affirming the Commissioner's Decision, (Doc. No. 18), together with a responding Statement of Material Facts, (Doc. No. 18-2), and a brief in support. (Doc. No. 18-1).
The Court presumes the parties' familiarity with the plaintiff's medical history, which is thoroughly discussed in the parties' respective statements of material facts. (See Doc. Nos. 16-2; 18-2). The Court cites only the portions of the record that are necessary to explain this decision.
The plaintiff has a GED and has not worked since September 1, 2019. (Tr. 58, 73). He stopped working because he was experiencing severe pain in his right femur bone and was emotionally unstable. (Tr. 58).
At the time of the alleged onset of the plaintiff's disability, he struggled to stand and sit. (Id.). At the suggestion of his physical therapist, the plaintiff elevated his legs above his heart for comfort while seated. (Tr. 58, 60). If he did not elevate his leg or take pain medication, then he experienced pain in his knee, hip bone, and femur while seated. (Tr. 60). The plaintiff also struggled to complete daily chores and to focus, and he often felt nervous and jittery. (Tr. 58).
The plaintiff had surgery on his right femur in January 2020. (Tr. 59). Rather than undergo knee reconstruction surgery in 2021, the plaintiff tried wearing a knee brace for a couple of months. (Id.). While wearing the knee brace in his house, he was able to stand and sit for approximately 15 or 30 minutes before his knee and joints became swollen. (Id.). To avoid discomfort, the plaintiff moved his hip from side to side and did exercises he learned in physical therapy. (Id.).
The plaintiff could walk approximately 75 percent of a city block (400 feet) before he needed to sit for approximately three to five minutes. (Tr. 60). Although the plaintiff wore only a knee brace to walk while he was at home, he also used a cane for assistance walking outside of his home. (Tr. 61). He needed to lie down for 45 minutes to an hour at least four times per day. (Tr. 65). He struggled to walk up and down stairs. (Id.). He could not lift more than a gallon of milk or bend over without losing his balance because of damage he sustained to his leg muscles. (Tr. 62). The plaintiff suffered from chronic knee pain even when he took medication. (Tr. 62-63). He described his daily pain as an eight out of ten without medication, and a three-to-five out of ten when he is medicated. (Tr. 63). The plaintiff's best friend took him to all of his doctor appointments. (Tr. 67).
The plaintiff also struggled to concentrate and maintain his interest; his therapist had recently diagnosed him with attention deficit disorder (“ADD”). (Tr. 64). He had trouble remembering how to do basic tasks and struggled to trust other people. (Tr. 66-67).
The last time the plaintiff used cocaine was when he relapsed in October 2019. (Tr. 69). He had a prescription for medical marijuana, which he used to alleviate his pain, anxiety, and panic attacks. (Tr. 70).
The plaintiff had not left Connecticut since he stopped working. (Tr. 67). He had planned a trip to visit his brother in Florida but canceled it because he could not sit down for the length of the plane ride. (Tr. 71).
VE Bopp also testified at the plaintiff's hearing. He explained the plaintiff's RFC using various hypothetical scenarios. (Tr. 72-79).
The ALJ presented VE Bopp with a hypothetical involving an individual between ages 47 and 49 with a high school education and no relevant work experience, who was limited to lifting and/or carrying 20 pounds occasionally and ten pounds frequently; standing and/or walking with normal breaks for four hours out of an eight-hour workday; walking long distances and/or on uneven terrain with a cane; lifting and/or carrying small items; sitting with normal breaks for six hours out of an eight-hour workday; never climbing ladders, ropes, or scaffolding; never kneeling, crouching, or crawling; climbing ramps and/or stairs occasionally; being exposed to hazards such as machinery or heights occasionally; never being exposed to unprotected heights or slippery surfaces; and interacting with the public, coworkers, and supervisors occasionally. (Tr. 73-74). VE Bopp testified that such an individual could do the work of a small products assembler, which required light exertion and amounted to approximately 300,000 full-time jobs nationally; a collator operator, which required light exertion and amounted to approximately 40,000 full-time jobs nationally; and a document preparer, with required sedentary exertion and amounted to approximately 15,000 full-time jobs nationally. (Tr. 74-75).
VE Bopp opined that, if the same individual was further limited to standing and/or walking with normal breaks for two hours out of an eight-hour workday, he would be able to do the work of a document preparer and a small products assembler, but not a collator operator. (Tr. 75). VE Bopp further opined that an individual with that additional limitation would also be able to do the work of a cutter and paster, which required sedentary exertion. (Id.).
VE Bopp testified that, if the same individual was further limited to lifting and/or carrying ten pounds occasionally and less than ten pounds frequently, he could do the work of a document preparer, a small products assembler, and a cutter and paster. (Tr. 76). He added that the tolerance for off-task behavior and regularly scheduled work breaks during a typical workday was approximately ten percent for a document preparer and a cutter and paster, and five percent for a small products assembler. (Id.). According to VE Bopp, the tolerance for unscheduled absenteeism for these professions was generally less than one absence per month and approximately eight per year. (Tr. 77).
Finally VE Bopp opined, based on his four years of experience providing vocational rehabilitation services, that if the same individual needed to...
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