Chase D. C. v. Kijakazi

• Decision Date: 31 January 2022
• Docket Number: 20-cv-1292 (ADM/TNL)
• Court: U.S. District Court — District of Minnesota
• Parties: Chase D. C, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, [1] Defendant.

Chase D. C, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, ^[1] Defendant.

No. 20-cv-1292 (ADM/TNL)

United States District Court, D. Minnesota

January 31, 2022

James H. Greeman, Greeman Toomey, (for Plaintiff);

Michael Moss, Social Security Administration, Office of the General Counsel, (for Defendant).

REPORT & RECOMMENDATION

Tony N. Leung United States Magistrate Judge

I. INTRODUCTION

Plaintiff Chase D. C. brings the present case, contesting Defendant Commissioner of Social Security's denial of his applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and supplemental security income (“SSI”) under Title XVI of the same, 42 U.S.C. § 1381 et seq. This matter is before the undersigned United States Magistrate Judge on cross motions for summary judgment, Plaintiff's Motion for Summary Judgment (ECF No. 20) and the Commissioner's Motion for Summary Judgment (ECF No. 22). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Ann D. Montgomery, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

Based upon the record, memoranda, and proceedings herein, the Court recommends that Plaintiff's motion be GRANTED IN PART and DENIED IN PART; the Commissioner's motion be GRANTED IN PART and DENIED IN PART; and this matter be REMANDED for further proceedings.

II. BACKGROUND

A. Procedural History

On April 13, 2017, Plaintiff filed applications for DIB and SSI, alleging a disability onset date of November 1, 2014. (Tr. 289-94; 294-96, ECF No. 19.) Plaintiff alleged the following impairments: traumatic brain injury, depression, anxiety, acute allergies, herniated disks, a possible compression fracture, and an anterior cruciate ligament (ACL) replacement in his left knee. (Tr. 328.) Plaintiff asserts that while he was previously able to perform his work duties “very well, ” including using heavy equipment, work has become challenging due to short-term memory loss.^[2] (Tr. 315; see also Tr. 356 (“My memory loss has made it impossible to perform work skills that I used to have.”).) Plaintiff contends that he has experienced a loss in muscle memory to perform “even simple tasks;” he has forgotten things “that were once second-nature;” and his short-term memory loss is “so severe that [he is] unable to learn new skills.” Coupled with his severe depression and anxiety, as well as pain in his lower back, Plaintiff asserts he is unable to work. (Tr. 356.)

Plaintiff also maintains that he has trouble remembering things, like to dress warm if it is cold outside, simple bathing practices, eating, and paying bills. (Tr. 357-63.) He can remember to take his medicine and do house and yard work if he sets an alarm and puts it on his calendar. (Id.) He also has trouble sleeping, socializing, concentrating, completing tasks, and remembering instructions. (Id.) Plaintiff, however, also reports being able to drive; do yard work such as mowing the grass and housework such as laundry or vacuuming; attend at least two doctors' appointments per week; and attend AA/NA meetings and church. (Id.)

Plaintiff was found not disabled on June 23, 2017. (Tr. 224-28.) That finding was affirmed upon reconsideration. (Tr. 231-33, 235-37.) Plaintiff then appealed the reconsideration of his DIB and SSI determinations by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 238-39.) A hearing was held on April 4, 2019. (Tr. 117-152.)

Plaintiff sought a supplemental hearing, arguing that the “truncated” nature of the hearing prevented him from “fully and materially presenting his claim.” (Tr. 415.) This request was denied by the ALJ because Plaintiff's counsel did not address specific grounds for a supplemental hearing. (Tr. 286.) Plaintiff's counsel renewed his request, indicating he intended to take further testimony from Plaintiff and the Vocational Expert (“VE”) on the topics of concentration, persistence, and pace. (Tr. 417-18.) This request was also denied. (Tr. 16.)

On May 9, 2019, the ALJ issued an unfavorable decision denying Plaintiff's claim for benefits. (Tr. 12-31.) Plaintiff sought review of the ALJ's decision through the Appeals Council, which denied his request for review. (Tr. 1-6.) Plaintiff then filed the instant action, challenging the ALJ's decision. (Compl., ECF No. 1.) The parties have filed cross-motions for summary judgment. (ECF Nos. 20, 22.) This matter is now fully briefed and ready for a determination on the papers.

B. Hearing Before the ALJ

Plaintiff testified at the hearing, first detailing his memory problems. (Tr. 128-33.) He detailed his treatment with his neurologist, Kenneth Hoj, MD. (Tr. 128-30.) He testified that because of his memory problems, it was hard for him to learn information. (Tr. 129.) By way of example, Plaintiff shared that he was no longer able to remember measurements or the directions for snow plowing certain areas that he had once been able to do when he worked for the City of Wyoming. (Tr. 131-32.) He also testified that he had problems with concentration and attention. (Tr. 133.) These problems with his memory, concentration, and attention caused him to be disciplined by his employers. (See Tr. 135.) He also testified that he would now get lost in Wyoming, his hometown, and forget where he is going or where he is. (Tr. 136-37.)

When asked if he would have been able to drive himself to his hearing in downtown Minneapolis through the use of MapQuest or verbal directions on his smartphone, Plaintiff testified he may suffer from a “sensory overload” and would be unable to make his way to the hearing. (Tr. 139.) When asked by the ALJ how many head injuries he had suffered from 2014-2018, Plaintiff responded that he did not know if he could tell how many he had, but “it would have been probably fewer and further between.” (Tr. 141.) He stated he had been in a “not serious” car accident where he received a concussion; however, he could not recall if the car accident was within the timeframe posed by the ALJ. (Tr. 141.)

The ALJ also asked Plaintiff about his previous work in the summer of 2018, where Plaintiff was installing acoustic tiles. (Tr. 141-42; see also Tr. 1023.) Plaintiff testified that he worked between 10 and 20 hours per week and he and his employer mutually parted ways, but also that the employer did not find Plaintiff was meeting their standards and expectations. (Tr. 142.)

During the VE's testimony, the ALJ posed the following hypothetical:

I'd like you to assume an individual can occasionally exert 50 pounds of force, and 25 pounds frequently. He could stand and walk about six hours out of eight, and sit about six hours out of eight.

This individual can frequently climb ramps or stairs, and occasionally climb ladders, ropes or scaffolds. They could perform occasional balancing, frequent stooping, occasional kneeling, crouching, crawling.

This individual would be limited to simple, routine, repetitive tasks that can be learned with a short demonstration or very short written or verbal description. The individual may have very few changes to his assignments and the location of his assignments.

He may have brief and superficial contact with others such as taking instructions - very simple information, and simple coordination such as team - or transferring materials.

(Tr. 143-44.) The VE testified that the hypothetical individual would not be able to perform Plaintiff's past work, but that there were three examples consistent with the Dictionary of Occupational Titles (“DOT”) that such a person could perform. (Tr. 144-46.) He testified that the representative jobs of hand packager (DOT code 920.587-018; approximately 100, 000 jobs in the national economy), product assembler (DOT code 706.687-010; approximately 200, 000 jobs in the national economy), and electronics worker (DOT code 726.687-010; approximately 100, 000 jobs in the national economy) would be available to such a person. (Tr. 145.) The VE testified that all three examples he provided have a specific vocational preparation (“SVP”) of 2 and are unskilled work. (Tr. 145.) The VE further noted that the three jobs “are done at a stationary work area, not on an assembly line.” (Tr. 145.) The VE stated his testimony was consistent with the DOT. (Tr. 145.)

The following questioning then took place between the ALJ and the VE:

ALJ: And I've provided a limitation regarding routine, repetitive tasks and few changes to the assignments. So looking at a job like the electronics worker, [] generally the person would be working on the same components day in and day out, or would there be changes between different product lines?

VE: Typically they would be performing the same work process, although there might be some changes from time to time, yes . . . . But those changes would still be unskilled and could be learned by a demonstration. And typically the changes wouldn't occur on a daily basis.

ALJ: Okay. The changes in product line, or changes to the tasks would occur less than daily is that what you indicated?

VE: Yes.

ALJ: And what about product assembler and hand packaging, would that be comparable where the individual would be performing the same task essentially for the entire day?

VE: Yes.

ALJ: And would there be changes in those tasks - products being packaged, or the products being assembled?

VE: Typically not products packaged. And there could be an occasional change for product assembly . . . . And certainly as my testimony was with the electronics job, yeah, the changes wouldn't occur on a daily basis.

(Tr. 145-46.)

On cross-examination, the VE testified that a person who...