Brian R. v. Kijakazi, No. CV 3:21-00750, 2022 WL 4230247 (W.D. La. Aug. 29, 2022), report and recommendation adopted, No. CV 3:21-00750, 2022 WL 4227881 (W.D. La. Sept. 13, 2022)

Brian R. v. Kijakazi, No. CV 3:21-00750, 2022 WL 4230247 (W.D. La. Aug. 29, 2022), report and recommendation adopted, No. CV 3:21-00750, 2022 WL 4227881 (W.D. La. Sept. 13, 2022)

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Briefs for purchase:

  • Appellant’s Initial Brief

  • Appellant’s Reply Brief 

Issues Briefed:

  1. 1)  The ALJ committed reversible legal error by not complying with applicable

    authority concerning the role of Plaintiff’s alcohol use.

  2. 2)  The ALJ’s RFC assessment is not supported by substantial evidence.

  3. 3)  The ALJ failed to properly consider Plaintiff’s subjective complaints and testimony.

Court decision:
The court first addressed whether the claimant had properly considered Plaintiff’s alcohol use, noting that:

“[u]nder the Social Security Act, an individual will not be considered disabled for purposes of disability insurance benefits if alcoholism or drug addiction was a contributing factor material to the Commissioner’s determination that the individual is disabled. 42 U.S.C. § 423(d)(2)(C). . . . However, before determining whether DAA is a contributing factor material to the determination of disability, the Commissioner first must find that the claimant is disabled. 20 C.F.R. § 404.1535(a); see also Halterman v. Astrue, Civ. Action No. 08-0004, 2009 WL 463889, at *6-7 (W.D. La. Jan. 30, 2009).

Id. at *9. As the ALJ “made no such antecedent finding,” his “emphasis upon the effects of [Plaintiff’s] impairments, absent DAA, is unorthodox and potentially prejudicial.” Id. “Some district courts have found reversible error under these circumstances, whereas others have found the error harmless.” Id. (citing Oettinger v. Barnhart, No. 01-0801, 2002 WL 31422308, at *7 (W.D. Tex. Sept. 4, 2002) (reversible error); Campanile v. Astrue, No. 10-0716, 2012 WL 1424728, at *4 (M.D. La. Mar. 19, 2012), R&R adopted, 2012 WL 1430958 (M.D. La. Apr. 24, 2012) (ALJ applied incorrect legal criteria warranting reversal); Anderson v. Colvin, No. 12-1039, 2013 WL 4774638, at *4 (N.D. Tex. Sept. 6, 2013) (plaintiff failed to demonstrate that his substantial rights were prejudiced by the ALJ’s evaluation of his DAA)). However, the court declined to resolve this issue because “reversal is warranted on another basis,” commenting that “[u]pon remand, the ALJ will have the opportunity to conform his DAA analysis to SSA policy.” Id.

However, the court agreed that the ALJ’s RFC assessment, which only addressed mental impairments, was not supported by substantial evidence. Id. The court noted that in applying the psychiatric review technique findings, the ALJ had found that Plaintiff had “moderate limitations in all four domains of functioning: understanding, remembering or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself.” Id. The court noted that the Appeals Council had remanded the case because the prior ALJ’s RFC

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assessment failed to “contain any limitations that would account for the moderate limitation in adapting and managing oneself” but it was not “self-evident to this court that the current limitation to ‘simple 1, 2, 3 step instructions,’ contemplates a moderate limitation in the domain of adapting and managing oneself.” Id. at *10.

The court also agreed that the ALJ erred by adopting a limitation to only “‘occasional interaction with the public,’ without incorporating any limitation regarding his interaction with supervisors and co-workers.” Id. The court noted that in assessing Plaintiff’s RFC, the ALJ “failed to include all of the limitations recognized” by the State agency psychological consultant who opined that Plaintiff was limited to “non-confrontational situations” in interacting with coworkers and supervisors, and needed “respectful supervision and constructive criticism.” Id. at *10-11. The court also found that:

“an inability to appropriately interact with or respond to criticism from supervisors is distinct from an inability to interact with either coworkers or the public.” Melissa R. v. Berryhill, Civ. Action No. 17-7716, 2018 WL 6507898, at *4 (C.D. Cal. Dec. 11, 2018) (citations omitted). In other words, “[t]he public, supervisors, and co-workers are distinct groups, and are separately addressed on the mental RFC forms. Thus, limitations on one type of interaction in the RFC does not account for limitations on the others.” Peggy C. v. Kijakazi, Civ. Action No. 19-17472, 2021 WL 3206812, at *6 (D.N.J. July 29, 2021) (citations omitted). Consequently, where an ALJ finds that the claimant is “moderately limited in interacting with others,” his unexplained decision to omit a limitation relating to interaction with supervisors (and co-workers) cannot be excused as harmless error. Peggy C., supra.

Id. at *11. While an ALJ is “not obliged to tether his RFC to a particular medical source statement, so long as the record otherwise contains substantial evidence to support the RFC,” the ALJ relied on evidence which did not support his finding that Plaintiff could occasionally interact with the public.

The Commissioner relied on Social Security Rule 85-15, to argue that “unskilled jobs, like the ones the ALJ found that [Plaintiff] could perform, consist mainly of dealing with objects, rather than people.” Id. However, the Commissioner omitted other pertinent sections of SSR 85-15, which provides:

The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding

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of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base.

** *

Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant’s condition may make performance of an unskilled job as difficult as an objectively more demanding job. [F]or example, a busboy need only clear dishes from tables. But an individual with a severe mental disorder may find unmanageable the demands of making sure that he removes all the dishes, does not drop them, and gets the table cleared promptly for the waiter or waitress. Similarly, an individual who cannot tolerate being supervised may not be able to work even in the absence of close supervision; the knowledge that one’s work is being judged and evaluated, even when the supervision is remote or indirect, can be intolerable for some mentally impaired persons. Any impairment-related limitations created by an individual’s response to demands of work, however, must be reflected in the RFC assessment.

Id. The court concluded that the ALJ’s RFC assessment was not supported by substantial evidence. Id. (citing Simmons v. Colvin, Civ. Action No. 15-1673, 2016 WL 4384366, at *9 (W.D. La. May 31, 2016), R&R adopted, 2016 WL 4384783 (W.D. La. Aug. 16, 2016) (ALJ’s RFC not supported by substantial evidence where the non-examining psychologists indicated, inter alia, that the claimant’s interaction with co-workers and supervisors was limited to non-confrontational situations, with respectful supervision and constructive criticism, but the RFC failed to include any limitations relating to supervisors)).

The court also held that “[b]ecause the foundation for the ALJ’s step five determination was premised upon an RFC that is not supported by substantial evidence,” the ALJ’s “ultimate conclusion that [Plainiff] is not disabled, likewise is not supported by substantial evidence.” Id. at *12. Finally, the court declined to remand for an award of benefits. Id. “When reversal is warranted, the matter is remanded with instructions to make an award only if the record enables the court to conclusively determine that the claimant is entitled to benefits” Id. (citing Ferguson v. Heckler, 750 F.2d 503, 505 (5th Cir. 1985); Rini v. Harris, 615 F.2d 625, 627 (5th Cir. 1980)). As Plaintiff’s RFC assessment “remains indeterminate,” the court determined that remand was warranted. Id. at *12

Topics addressed:

  • Specific impairments - drug and alcohol abuse

  • Appeals Council - need to follow remand orders

  • RFC - relationship with PRTF findings

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  • Mental domains - interacting with others

  • RFC - interacting with co-workers, supervisors and the public

  • Subjective symptoms - work activity

  • Subjective symptoms - daily activities

  • Subjective symptoms - failure to follow treatment

  • Non-examining physicians v. examining physicians (old law)

  • Remand for an award of benefits

    Rulings addressed:

  • Social Security Ruling 85-15

  • Social Security Ruling 13-2p

  • Social Security Ruling 16-3p