Cassel v. Kijakazi
| Docket Number | 4:20-cv-00703-YK-GBC |
| Decision Date | 06 August 2021 |
| Parties | KIMBERLY CASSEL, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for decision. Kimberly Cassel (“Plaintiff”) seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
To receive disability or supplemental security benefits under the Social Security Act (“Act”), a claimant bears the burden to demonstrate an “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920 (). The process requires an Administrative Law Judge (“ALJ”) to decide whether an applicant (1) is engaged in “substantial gainful activity;” (2) suffers from a “severe medically determinable physical or mental impairment;” (3) suffers from “an impairment(s) that meets or equals one” listed in the regulation's appendix; (4) has a residual functional capacity (“RFC”) allowing for performance of “past relevant work;” and (5) can “make an adjustment to other work.” Rutherford v Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) (). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence “does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is “less than a preponderance” and “more than a mere scintilla.” Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).
On February 6, 2017, Plaintiff filed an application for supplemental security income under Title XVI of the Social Security Act (“Act”). (Tr. 17). In the application, Plaintiff alleged disability due to a degenerative mass on the spinal cord, muscle disease, vertigo, and “migraines-bilateral occipital neuralgia.” (Tr. 86). On February 11, 2019, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 14-31). Plaintiff sought review of the decision, which the Appeals Council denied on March 30, 2020, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 5-10).
On April 27, 2020, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On September 17, 2020, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 13, 14).
On November 2, 2020, Plaintiff filed a brief in support of the appeal. (Doc. 15 (“Pl. Br.”)). On December 11, 2020, Defendant filed a brief in response. (Doc. 16 (“Def. Br.”)). On November 23, 2020, Plaintiff filed a reply. (Doc. 17 (Reply)).
On appeal, Plaintiff argues: (1) the ALJ erred in evaluating the consistency of Plaintiff's allegations with the evidence of record in violation of Social Security Ruling 16-3p; (2) contrary to the ALJ's conclusions, medical records following the post cervical fusion establishes the severity of her conditions; (3) in drawing an adverse inference from Plaintiff's non-compliance with undergoing trigger point injections, the ALJ erred by not inquiring the reasons for the non-compliance; (4) the ALJ erred in over-relying on Plaintiff's activities of daily living (ADLs) and Zumba exercise in support of finding Plaintiff's allegations inconsistent with the record; (5) the ALJ's finding that Plaintiff had the RFC to perform sedentary work with a sit-stand option every thirty minutes conflicts with finding Plaintiff “could sit for 6 hours in an 8-hour day, and finding that she needs a sit-stand option every half-an-hour”[2]; (6) the ALJ failed to address the extent Plaintiff would be off-task as a result of the needed position changes given Plaintiff's neck pain, left arm pain, numbness, and tingling; (7) the vocational expert (“VE”) “failed to identify how she determined [Plaintiff] could perform the jobs of a charge account clerk, a document preparer, and telephone quotation clerk based on the . . . RFC . . . [given that the] VE did not testify that she ever saw the aforementioned jobs being performed with a sit/stand option (every half a-hour), ” and; (8) the ALJ erred in denying Plaintiff's request to admit and address a medical source opinion pursuant to 20 C.F.R. 416.1435. Pl. Br. at 8-14.
Plaintiff is classified by the regulations as a younger individual through the date of the February 2019 ALJ decision. (Tr. 85); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed the tenth grade. (Tr. 204).
Plaintiff argues the ALJ erred in denying Plaintiff's request to admit and address three of Dr. Warren Watkin's September 2018 medical source opinions pursuant to 20 C.F.R. 416.1435. Pl. Br. at 15-16, (Tr. 272-73 (brief to Appeals Council)). While the argument to submit these medical opinions were presented to the Appeals Council and the text of these medical opinions were not submitted to the Appeals Council and are not included in the administrative transcript of proceedings. Doc. 14, (Tr. 5-10 (Appeals Council denial), Tr. 272-75 (). In support of the opening brief, Plaintiff submits: (1) a letter to the ALJ dated October 8, 2018, requesting Dr. Watkin's medical opinions to be entered in the record; (2) a physical RFC opinion signed by Dr. Watkin on September 28, 2018; (3) an undated mental impairment opinion signed by Dr. Watkin, and; (4) an RFC opinion pertaining to headaches signed by Dr. Watkin on September 28, 2018. Docs. 15-3, 15-4, 15-5. In the February 2019 decision, the ALJ explained:
The claimant submitted or informed the Administrative Law Judge about additional written evidence less than five business days before the scheduled hearing date. The undersigned Administrative Law Judge declines to admit this evidence because the requirements of 20 CFR 416.1435(b) are not met. As indicated above, the claimant's hearing occurred on October 11, 2018. As such, the claimant was required to either submit all evidence by October 5, 2018, or notify the undersigned of any outstanding evidence by that date. The claimant failed to notify the undersigned of outstanding medical evidence on or before October 5, 2018. Thereafter, the claimant submitted untimely medical evidence from Dr. Walter Watkin, M.D. and Memorial Eye Institute on October 9, 2018. Therefore, the undersigned declines to admit such evidence, in accordance with 20 CFR 416.1435(b).
(Tr. 17). Sections 404.935 and 416.1435 provide:
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