RISCH v. KIJAKAZI

Filing 21

ORDER. The Magistrate Judge's Report and Recommendation (ECF No. 19 ) is adopted and incorporated by reference in this Order, and all objections are overruled. The decision of the Commissioner denying Risch's application for Disability Insurance Benefits is AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner and close the file. Signed by JUDGE M CASEY RODGERS on 06/05/2024. (alb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JASON B. RISCH,
Plaintiff,
v.

Case No. 3:23cv8077-MCR-HTC

MARTIN O’MALLEY,
Commissioner of Social Security,
Defendant.
________________________________/
ORDER
On February 14, 2024, the Magistrate Judge entered a Report and
Recommendation (“R&R”), recommending affirmance of the Commissioner’s
denial of Plaintiff Jason B. Risch’s application for Disability Insurance Benefits.
ECF No. 19. The parties have been furnished a copy of the R&R and afforded an
opportunity to file objections pursuant to Title 28, United States Code, Section
636(b)(1). The undersigned has made a de novo determination of all timely filed
objections, and concludes that the R&R should be adopted.
The undersigned finds it appropriate to briefly address some of Risch’s
objections. He first argues that the restrictions in the hypothetical posed to the
Vocational Expert (“VE”) were inconsistent with the ALJ’s RFC finding. The
hypothetical was worded slightly different from the RFC finding, as both the

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Commissioner and the Magistrate Judge acknowledged. The hypothetical posited
an individual who, in relevant part, could “tolerate occasional superficial interaction
with coworkers and supervisors, preferably in small groups or something in
isolation,” T at 69 (emphasis added), whereas the ALJ’s RFC finding stated Risch
could “tolerate occasional superficial interaction with coworkers and supervisors,
preferably in semi-isolation,” T. 24-25 (emphasis added). Risch contends that
“semi-isolation” is narrower than “small groups or something in isolation” and also
ambiguous because the terms are undefined. He argues that the ALJ’s failure to use
clear and unambiguous language justifies remand for reconsideration. The
undersigned disagrees. As carefully discussed by the Magistrate Judge, the ALJ’s
decision taken as a whole shows that he considered the term “semi-isolation” to be
synonymous with work in “small groups” and also restricted by the limitation of
“occasional and superficial contact with coworkers and supervisors.” Because the
hypothetical question posed to the VE taken in full context included these social
restrictions as well, the difference between “small group” and “semi-isolation” is not
material.
The Magistrate Judge also noted that the Dictionary of Occupational Titles
indicates that the job of final assembler, which is the only category of job Risch was
found capable of performing, “reflects the lowest possible level of human interaction
that exists in the labor force.” See ECF No. 19 at 7 (R&R) (quoting Allen v. Kijakazi,

Case No. 3:23cv8077-MCR-HTC

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2023 WL 2329794, at 11 n.11 (M.D.N.C. Mar. 2, 2023)).

Risch finds this

problematic because there is no indication in the record that the position could be
performed in complete isolation. But the there was no finding that he had to perform
a job in complete isolation, and it is clear from the record that he was not so limited.
There also is no internal inconsistency in stating that an individual might be limited
to “preferably small groups or something in isolation,” as stated in the hypothetical.
Risch’s additional vagueness argument that “superficial” is not defined in the
Dictionary of Occupational Titles and that semi-isolation is unclear similarly fail to
persuade based on the force of the plain language and context. Risch cites no
authority for his positions. The arguments are adequately addressed by the
Magistrate Judge’s reasoning and conclusion that there is no internal inconsistency
or impermissible ambiguity and that Risch’s arguments lack legal and factual
support, which the undersigned adopts.
Risch also argues that the ALJ should have found his anxiety disorder
“severe” and that the ALJ failed to expressly consider whether he met the listing,
12.06, for anxiety and compulsive disorders. The Magistrate Judge acknowledged
that the ALJ failed to identify anxiety as a severe impairment or specifically address
this listing but explained that, because the anxiety listing includes the same criteria
of paragraph B and C, which the ALJ considered and rejected under listings 12.04,
depressive disorders, and 12.15, trauma and stressor-related disorders, there is no

Case No. 3:23cv8077-MCR-HTC

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reversible error. Also, the Magistrate Judge noted that Risch has not identified
substantial evidence in the record from which to conclude that his anxiety was a
severe impairment. The undersigned agrees.
Moreover, as the Magistrate Judge determined, and the undersigned having
reviewed the record de novo agrees, the ALJ’s decision shows he reviewed the
evidence related to Risch’s anxiety, including testimony, treatment records, and the
consultative examination report, and discussed the impact of stress and also
accounted for it in the RFC assessment. See ECF No. 19 at 20–21 (R&R, citing the
transcript references). Risch relies on Schink v. Comm’r of Soc. Sec., 935 F.3d 1245,
1268–69 (11th Cir. 2019), to argue that the ALJ commits reversible error by
providing no assessment of the claimant’s mental impairments. But in Schink, the
ALJ provided no analysis or findings about the claimant’s mental capacities. See id.
at 1269. That clearly not the situation here, as fully discussed in the R&R.
Having reviewed and rejected these, and all additional objections made, the
undersigned agrees with the Magistrate Judge’s analysis and finds on de novo review
that the ALJ’s determination is “supported by substantial evidence.” Biestek v.
Berryhill, 587 U.S. 97, 99 (2019); Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th
1315, 1320 (11th Cir. 2021).

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Accordingly:
1.

The Magistrate Judge’s Report and Recommendation (ECF No. 19) is

adopted and incorporated by reference in this Order, and all objections are overruled.
2.

The decision of the Commissioner denying Risch’s application for

Disability Insurance Benefits is AFFIRMED.
3.

The Clerk is directed to enter judgment in favor of the Commissioner

and close the file.
DONE AND ORDERED this 5th day of June 2024.

M. Casey Rodgers

M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE

Case No. 3:23cv8077-MCR-HTC