Opinion
C. A. 22-4459-RMG-PJG
10-27-2023
Ricky Van Powell, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
[X] Affirm [ ] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[ ] Supplemental Security Income (“SSI”): Plaintiff's age at filing:
[X] Disability Insurance Benefits (“DIB”): Date last insured: December 31, 2018
[ ] Other:
Application Dated: April 30, 2020
Plaintiff's Year of Birth: 1958
Plaintiff's alleged onset Dated: December 31, 2014
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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.” 20 C.F.R. § 404.1505(a) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: July 1, 2022
In applying the requisite five-step sequential process, the ALJ found:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes [X] No
Step 2: [X] Plaintiff has the following severe impairments:
[D]e generative disc disease, degenerative joint disease-status-post total right knee replacement, osteoarthritis, and hypertension (20 CFR 404.1520(c)).
[ ] Plaintiff does not have a severe impairment.
Step 3: [X] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
[T]hrough the date last insured, the claimant had the residual functional capacity to perform a reduced range of light work as defined in 20 CFR 404.1567(b). The claimant could lift and carry, push and pull 20 pounds occasionally and 10 pounds frequently. He could sit for 6 hours of an 8-hour day and could stand and/or walk for 6 hours of an 8-hour day. He could frequently reach, handle, and finger with the bilateral upper extremities. He could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl and never climb ladders, ropes, or scaffolds.
[X] Plaintiff could return to his/her past relevant work as a cost analyst as generally and actually performed.
Date of Appeals Council decision: November 7, 2022
Part IV-Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154 (citation omitted). In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issue for Judicial Review
Cost Analyst. The ALJ found that Powell could perform his past job as a cost analyst. But, Powell worked at this job for two years or less and stopped working due to the pain caused by his severe impairments. This job has a specific vocational preparation score of seven and thus takes a typical worker at least two years to learn how to do it. Did the ALJ err in finding that this job was past relevant work?
Oral Argument:
[ ] Held on _______.
[X] Not necessary for recommendation.
Summary of Reasons
A claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. “Past relevant work” is defined by the regulations as “work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1); see also 20 C.F.R. § 404.1565 (discussing work experience as a vocational factor); 20 C.F.R. § 404.1574 (discussing substantial gainful activity). In determining whether a claimant can perform his past relevant work, the Commissioner “will ask [the claimant] for information about work you have done in the past” and “may also ask other people who know about your work” and “may use the services of vocational experts or vocational specialists, or other resources, such as the ‘Dictionary of Occupational Titles' and its companion volumes and supplements, published by the Department of Labor, to obtain evidence [she] need[s] to help [her] determine whether [a claimant] can do [his] past relevant work, given [his] residual functional capacity.” 20 C.F.R. § 404.1560(b)(2). The duration requirement for past relevant work “refers to the length of time during which the person gained job experience. It should have been sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. The length of time this would take depends on the nature and complexity of the work.” SSR 82-62, 1982 WL 31386, at *2. Further, Social Security Ruling 82-62 provides:
In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact:
1. A finding of fact as to the individual's [residual functional capacity].
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's [residual functional capacity] would permit a return to his or her past job or occupation.Id. at *4. A claimant is generally not disabled if he can return to his past relevant work as he performed it or as it is customarily performed throughout the economy. 20 C.F.R. § 404.1560(b)(2); SSR 82-61, 1982 WL 31387.
In this case, the ALJ explained that the vocational expert testified that Plaintiff's past relevant work included a construction supervisor (DOT#182.167-026) at the light, skilled (SVP 7) level and a cost analyst (DOT#216.137-010) at the sedentary, skilled (SVP 7) level. (Tr. 23.) The ALJ found that these jobs constituted “past relevant work because the claimant performed them at the substantial gainful activity level, performed them within the past 15 years, and performed them long enough to learn the duties and requirements of the jobs.” (Id.) The vocational expert testified, and the ALJ concurred, that based on Plaintiff's residual functional capacity, Plaintiff could return to his past relevant work as a cost analyst as it was generally and actually performed. The ALJ found this testimony was consistent with the Dictionary of Occupational Titles. (Id.)
Plaintiff argues that since the cost analyst position has an SVP of seven, according to the Dictionary of Occupational Titles, it would take over two years up to and including four years for a typical worker to learn how to perform this job. (Pl.'s Br. at 5-6, ECF No. 8 at 7-8); see also U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, App'x B, Specific Vocational Preparation (1993). Plaintiff also relies on POMS DI 25005.015(C), which provides guidance on determining whether a plaintiff's work lasted long enough for him to learn how to do it. According to Plaintiff, he worked as a cost analyst from 2013 to 2014, which was not long enough for him to learn how to perform this job. Plaintiff further argues that any argument that Plaintiff could have learned the necessary skills from his prior experience as a construction supervisor should have been presented to and resolved by a vocational expert.
The Commissioner argues that the ALJ properly found that Plaintiff had performed the job long enough and contends that the SVP information is merely a guideline to help determine how long it would generally take to learn a particular job. See POMS DI 25005.015(C); (Def.'s Br. at 8, ECF No. 10 at 8 (citing Bond v. Comm'r of Soc. Sec., No. 6:15-cv-333-ORL-GJK, 2016 WL 3906929, at *3 (M.D. Fla. July 19, 2016) (internal citations omitted) (finding that “each SVP level is the amount of time a ‘typical worker' needs to learn the job,” but “does not mandate that every worker needs to perform a particular job for the period of time associated with that job's SVP”))). The Commissioner further argues that based on Plaintiff's testimony, his work as a cost analyst involved “ ‘a continuity of skills, knowledge, and work processes' with the skilled SVP 7 work that he performed as a construction supervisor for six years” and would provide him vocational training to learn how to perform his cost analyst job. (Def.'s Br. at 9, ECF No. 10 at 9) (relying on Bustamante v. Colvin, No. CV-13-02080-PHX-ESW, 2015 WL 136016, at *10 (D. Ariz. Jan. 9, 2015) (affirming the ALJ's finding that that the claimant's prior nine-month stint as a project manager constituted past relevant work because he “became a project manager after approximately ten years of being a construction superintendent,” and therefore his “time working as a construction superintendent may be considered as vocational training”)). Finally, the Commissioner aptly points out that Plaintiff never indicated in his testimony that he did not learn how to perform the job of cost analyst; rather, Plaintiff's testimony focused on his allegedly disabling limitations prohibiting him from working. (See Tr. 50-70; see also Def.'s Br. at 9-10, ECF No. 10 at 9-10 (collecting cases)).
Plaintiff directs the court to the decision in Burnett v. Saul, C/A No. 4:19-969-DCN-TER, 2020 WL 5793356 (D.S.C. Sept. 29, 2020). In Burnett, the court found reversal was warranted for several reasons, one of which was based in part on the ALJ's failure to adequately develop the record as to Plaintiff's past relevant work. The ALJ found that Burnett could return to her past relevant work as a customer service representative; however, the court found based on the earnings records that it was questionable whether her earnings from her past work as a customer service representative were sufficient to qualify as substantial gainful activity. Additionally, the ALJ found she performed the position from August 2014 to February 2015, and this position had an SVP of five, for which a typical worker requires over six months and up to and including one year to learn. The court concluded that “[w]ithout the exact dates of Burnett's employment, it is unclear if Burnett was employed for over six months, as required. As such, there is a question whether Burnett was at this job long enough to learn it. However, the ALJ failed to develop the record in this regard.” Burnett, 2020 WL 5793356, at *8.
The court finds the following cases to be more on point than Burnett, as they more closely mirror the situation in this case, such that remand is not required. In Bond v. Commissioner of Social Security, No. 6:15-cv-333-ORL-GJK, 2016 WL 3906929, at *3 (M.D. Fla. July 19, 2016), the court found that the DOT provides the amount of time a typical worker needs to learn the job but does not mandate that every claimant's tenure fall within that time frame. The court further found that Bond did not overcome his burden at Step Four of showing that he did not perform the job long enough to learn it where he never indicated that he did not have enough time to adequately learn the job and the vocational expert identified his work as past relevant work without objection by the claimant or his representative to the classification. Id. The court reached a similar conclusion in Heywood v. Commissioner of Social Security, No. 2:17-CV-316-FTM-MRM, 2018 WL 4237693 (M.D. Fla. Sept. 6, 2018). Id. at *8 (“Here, Plaintiff offers no argument that she actually failed to learn how to do the job of secretary. Indeed, other than a technicality based on her own calculations, Plaintiff provided no proof showing that she did not adequately learn the job.”); see also Schmidt v. Comm'r of Soc. Sec., No. 2:17-CV-333-FTM-MRM, 2018 WL 3805863, at *5 (M.D. Fla. Aug. 10, 2018) (same).
Accordingly, Plaintiff has failed to meet his burden at Step Four to demonstrate that he is unable to return to his past relevant work as a cost analyst. Therefore, this matter should be affirmed.
RECOMMENDATION
It is recommended that this matter be
[X] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[ ] Reversed and remanded pursuant to [ ] Sentence Four [ ] Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[ ] Reversed and remanded for an award of benefits.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).