Ray v. Kijakazi et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
TORI R.,
a/k/a TORI A.,1
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
5:20-CV-05052-DW
REDACTED
ORDER
INTRODUCTION
On August 24, 2020, claimant Tori R., a/k/a Tori A. filed a complaint
appealing the final decision of Andrew Saul2, the acting Commissioner of the
Social Security Administration, finding her not disabled. (Doc. 1). Defendant
initially denied that claimant is entitled to benefits. (Doc. 9). The court issued
a briefing schedule requiring the parties to file a joint statement of materials
facts (“JSMF”). (Doc. 11). Defendant filed a motion for remand for further
1 The Administrative Office of the Judiciary suggested the court be more
mindful of protecting from public access the private information in Social
Security opinions and orders. For that reason, the Western Division of the
District of South Dakota will use the first name and last initial of every non-
governmental person mentioned in the opinion. This includes the names of
non-governmental parties appearing in case captions.
2 Dr. Kilolo Kijakazi became the Acting Commissioner of Social Security on July
9, 2021. Pursuant to Fed. R. Civ. P. 25(d), Dr. Kijakazi is automatically
substituted for Andrew Saul as the defendant in all pending social security
cases. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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administrative proceedings. (Doc. 26). Plaintiff opposes the motion and filed
her own motion seeking to reverse the decision of the Commissioner and
requesting an award of benefits. (Docs. 23, 28).
For the reasons stated below, Ms. R.’s motion to reverse the decision of
the Commissioner (Doc. 23) is granted in part and denied in part; and
Defendant’s motion to remand (Doc. 26) is granted.
FACTS AND PROCEDURAL HISTORY
The parties’ JSMF (Doc. 18) is incorporated by reference. Further
recitation of the salient facts is incorporated in the discussion section of this
order.
On July 18, 2017, Ms. R. filed an application for Social Security
disability benefits alleging an onset of disability date of December 20, 2016.
(AR at p. 11).3 The claim was initially denied on November 27, 2017, and
denied upon reconsideration on March 2, 2018. (AR at p. 11). Ms. R.
requested an administrative hearing on May 1, 2018, and one was held on
June 5, 2019, but due to a scheduling error a vocational expert was not
present, so a supplemental hearing was subsequently held on July 12, 2019,
with a vocational expert present. (AR at p. 11). On October 17, 2019, the ALJ
issued a written decision denying benefits. (AR at pp. 8-24). Ms. R.
subsequently sought appellate review; her request was denied, making the
3 The court will cite to information in the administrative record as “AR at p.
___.”
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decision of the ALJ final. (AR at p. 1). It is from this decision that Ms. R.
timely appeals.
DISCUSSION
The parties agree that the ALJ’s decision is not free from reversible error
but disagree as to the appropriate remedy. (Docs. 28, 29). Ms. R. requests the
court “review the matter substantively and issue a decision reversing the
Commissioner’s denial of benefits and remand with instructions to grant
benefits.” (Doc. 28). The Commissioner argues that “due to unresolved
ambiguities and inconsistencies in the evidence regarding the functional
abilities [Ms. R.] could sustain, this Court should remand the case to the
agency for further proceedings pursuant to sentence four of 42 U.S.C. §
405(g).” (Doc. 29).
Under sentence four of 42 U.S.C. § 405(g), the court has the power “to
enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” However, the court
cannot simply enter a summary order remanding the case under sentence four;
the court must issue a substantive ruling. Brown v. Barnhart, 282 F.3d 580,
581 (8th Cir. 2002).
Here, after reviewing the administrative record in Ms. R.’s case, the
Commissioner concedes further administrative action is warranted. (Doc. 26).
The Commissioner informs the court that, on remand, “the Commissioner will
consider [Ms. R.’s] residual functional capacity [RFC], in terms of what she is
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capable of performing on a sustained, regular, and continuing basis.” (Doc.
27).
Because of the specific nature of the Commissioner’s motion for remand,
the court limits its analysis to the RFC. The ALJ concluded Ms. R.’s RFC
permitted her:
to perform sedentary work . . . except [Ms. R.] can occasionally
climb ramps or stairs. She can never climb ladders, ropes or
scaffolds. [She] is limited to a work environment that has no more
than a moderate noise level . . . . [She] must avoid all exposure to
vibrating tools and surfaces. She can occasionally be exposed to
fumes, odors, dusts, gases and other pulmonary irritants. She
must avoid all exposure to unguarded moving mechanical parts,
unprotected heights, and flashing or strobe lights. [She] is limited
to work that consists of no more than simple, routine tasks.
(AR. at pp. 17-23).
Ms. R. asserts that the ALJ found her migraines and mild cerebral palsy
to be severe but did not include any limitations in the RFC. (Doc. 23). There
are some limitations the ALJ incorporated into Ms. R.’s RFC that can be linked
to her migraines and cerebral palsy, i.e. that she is limited to “no more than
moderate noise level,” “must avoid all exposure to vibrating tools and surfaces,”
“must avoid … unguarded moving mechanical parts, unprotected heights, and
flashing or strobe lights,” and that she is limited to “simple, routine tasks.” (AR
at p. 17). This correlates with Ms. R.’s medical records in which her
complaints focused on pain, difficulties concentrating and focusing from the
migraines, and some difficulty with balance from cerebral palsy. However, the
ALJ failed to consider what Ms. R. is capable of performing on a sustained
basis despite limitations from her impairments. 20 CFR § 404.1545(a)(1).
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“[T]o find that a claimant has the [RFC] to perform a certain type of work,
the claimant must have the ability to perform the requisite acts day in and day
out, sometimes competitive and stressful conditions in which real people work
in the real world.” Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir. 2005); SSR
96-8p, 1996 WL 374184. (“RFC is an assessment of an individual’s ability to
do sustained work-related physical and mental activities in a work setting on a
regular and continuing basis” meaning “8 hours a day, for 5 days a week, or an
equivalent work schedule.”).
The current state of the record does not supply substantial evidence to
support the ALJ’s physical RFC conclusions that Ms. R. can perform full-time
sedentary work. “The ALJ must assess a claimant’s RFC based on all relevant,
credible evidence in the record, including the medical records, observations of
treating physicians and others, and an individual’s own description of his
limitations.” Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (citations and
internal quotation marks omitted). This matter is remanded to the
Commissioner to reassess Ms. R.’s RFC consistent with this opinion.
Ms. R. asks the court to award her immediate benefits. (Docs. 23, 28).
Remand with instructions to award benefits is appropriate “only if the record
overwhelmingly supports such a finding.” Buckner v. Apfel, 213 F.3d 1006,
1011 (8th Cir. 2000). In the face of a finding of an improper denial of benefits,
but the absence of overwhelming evidence to support a disability finding by the
Court, out of proper deference to the ALJ, the proper course is to remand for
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further administrative findings. Id.; Cox v. Apfel, 160 F.3d 1203, 1210 (8th
Cir. 1998).
Ms. R. cites Cumella v. Colvin, in support of her request to award
immediate benefits. 936 F.Supp.2d 1120 (D.S.D. Mar. 2013) (Doc. 23).
However, this case is different from Cumella in that the record does not
overwhelmingly support a disability finding. Here, conflicting evidence exists.
There is evidence in the record that both supports and detracts from Ms. R.’s
allegation that she is unable to work a full-time job. For example, the ALJ had
concerns about Ms. R.’s activities of daily living, stating that they “appear to
require more physical and mental abilities than she claims she possesses.”
(AR. at p. 20). Such activities noted by the ALJ include hiking, skiing, and
running. (AR. at p. 20). Ms. R. has attempted to explain why the ALJ should
not rely on such activities, but the record remains conflicted. Nevertheless,
further proceedings are warranted as to how these activities impact Ms. R.’s
ability to work full-time. In addition, the record further notes that even though
Ms. R. has altered some of her activities and is working part-time, medical
records suggest possible worsening of Ms. R.’s migraines. (AR. at pp. 85, 93,
133-34, 999, 1002, 1005, 1009). Further analysis is appropriate to determine
the possible worsening of Ms. R.’s migraines and how that impacts her ability
to work full-time.
An immediate award of benefits is not appropriate at this juncture.
Because conflicting medical evidence exists, the appropriate remedy is to
remand for further proceedings to afford the ALJ the opportunity to properly
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consider the weight to be given the medical evidence. Reed, 399 F.3d at 924;
Chitwood v. Bowen, 788 F.2d 1376, 1378 (8th Cir. 1986) (case remanded so
ALJ could give appropriate weight to the medical evidence and determine
applicant’s RFC).
Pursuant to Brown, this court does not enter a summary order, but
rather a substantive ruling reversing the decision of the Commissioner and
remanding the case for further administrative proceedings consistent with this
opinion. 282 F.3d at 581; Allen v. Astrue, No. CIV. 08-5034-KES, 2009 WL
44207, at *1 (D.S.D. Jan. 6, 2009); Rathke v. Colvin, No. CIV 13-5076-JLV,
2015 WL 5177890, at *9 (D.S.D. Sept. 4, 2015).
The court finds the Commissioner must reassess Ms. R.’s RFC. As such,
the court finds the ALJ’s decision dated October 17, 2019, that Ms. R. was not
disabled is not supported by substantial evidence. 42 U.S.C. § 405(g); Choate
v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006) (“Substantial evidence is
evidence that a reasonable mind would find adequate to support the decision of
the Commissioner.”). As a result, the court finds the matter must be remanded
for further administrative proceedings in accord with this decision.
In light of the court’s determination that remand is necessary, the court
reserves ruling on any issues raised in Ms. R.’s motion to reverse the decision
of the Commissioner that were not considered in this opinion. (Doc. 23).
Specifically, the court reserves ruling on (1) whether Ms. R.’s credibility should
have been rejected; (2) whether the credibility of third-party statements from
Shelly A., Janette M., Jan D., and Sandra M. should have been rejected; and
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(3) whether the ALJ’s hypothetical questions to the vocational expert and the
responses to the same constitute substantial evidence supporting the denial.
(Doc. 23).
ORDER
Based on the above analysis, it is hereby
ORDERED that Ms. R.’s motion to reverse the decision of the
Commissioner (Doc. 23) is granted in part and denied in part; and it is further
ORDERED that Defendant’s motion to remand (Doc. 26) is granted; and
it is further;
ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the
case is remanded to the Commissioner for rehearing consistent with this order.
DATED this 30th day of March, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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