Opinion
1:20-cv-13664
03-01-2022
CHRISTOPHER S., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
NORAH McCANN KING UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Christopher S. for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff appeals from the final decision of the Commissioner of Social Security denying that application. After careful consideration of the entire record, including the entire administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court reverses the Commissioner's decision and remands the action for further proceedings.
Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her official capacity. See Fed. R. Civ. P. 25(d).
I.PROCEDURAL HISTORY
On March 13, 2016, Plaintiff filed his application for benefits, alleging that he has been disabled since August 15, 2015. R. 111, 134, 214-21. The application was denied initially and upon reconsideration. R. 135-39, 144-48. Plaintiff sought a de novo hearing before an administrative law judge. R. 149-62. Administrative Law Judge (“ALJ”) Mark Hockensmith held a hearing on August 7, 2019, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. R. 34-80. In a decision dated September 3, 2019, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act from March 13, 2016, Plaintiff's alleged disability onset date, through the date of that decision. R. 16-28. That decision became the final decision of the Commissioner of Social Security when the Appeals Council declined review on August 26, 2020. R. 1-6. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On April 6, 2021 Plaintiff consented to disposition of the matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF No. 11. On that same day, the case was reassigned to the undersigned. ECF No. 12. The matter is now ripe for disposition.
The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases seeking review of the Commissioner's decision. See Standing Order In re: Social Security Pilot Project (D.N.J. Apr. 2, 2018).
II. LEGAL STANDARD
A. Standard of Review
In reviewing applications for Social Security disability benefits, this Court has the authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ's factual findings to determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). The United States Supreme Court has explained this standard as follows:
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. And whatever the meaning of substantial in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this
Court has said, is more than a mere scintilla. It means - and means only - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal quotations omitted); Bailey v. Comm'r of Soc. Sec., 354 Fed.Appx. 613, 616 (3d Cir. 2009) (citations and quotations omitted); K.K. ex rel. K.S. v. Comm'r of Soc. Sec., No. 17-2309, 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
The substantial evidence standard is a deferential standard, and the ALJ's decision cannot be set aside merely because the Court “acting de novo might have reached a different conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K., 2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or substitute its conclusions for those of the fact-finder.'”) (quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (“The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.”); see Coleman v. Comm'r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9, 2016). The Court has a duty to “review the evidence in its totality” and “take into account whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting Schonewolf v. Callahan, 972 F.Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted)); see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is overwhelmed by other evidence, ” “really constitutes not evidence but mere conclusion, ” or “ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec'y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F.Supp. at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular format in conducting [the] analysis, ” the decision must contain “sufficient development of the record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (citing Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121 (“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a comprehensive explanation for the rejection of evidence; in most cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent such articulation, the Court “cannot tell if significant probative evidence was not credited or simply ignored.” Id. at 705. As the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the weight [s/]he has given to obviously probative exhibits, to say that [the] decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.Gober, 574 F.2d at 776; see Schonewolf, 972 F.Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, a court can enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the record is incomplete or if the ALJ's decision lacks adequate reasoning or contains illogical or contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ's findings are not the product of a complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see A.B. on Behalf of Y.F. v. Colvin, 166 F.Supp.3d 512, 518 (D.N.J. 2016). A decision to “award benefits should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation omitted); see A.B., 166 F.Supp.3d at 518.
B. Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation process for determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. § 416.920(a)(4). “The claimant bears the burden of proof at steps one through four, and the Commissioner bears the burden of proof at step five.” Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (citing Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If so, then the inquiry ends because the plaintiff is not disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or combination of impairments that “significantly limits [the plaintiff's] physical or mental ability to do basic work activities[.]” 20 C.F.R. § 416.920(c). If the plaintiff does not have a severe impairment or combination of impairments, then the inquiry ends because the plaintiff is not disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff's impairment or combination of impairments “meets” or “medically equals” the severity of an impairment in the Listing of Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id. at § 416.909. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff's residual functional capacity (“RFC”) and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 416.920(e), (f). If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff's RFC, age, education, and work experience, can perform other jobs that exist in significant numbers in the national economy. 20 C.F.R. § 416.920(g). If the ALJ determines that the plaintiff can do so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the impairment or combination of impairments has lasted or is expected to last for a continuous period of at least twelve months.
III. ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 18 years old on the date on which the application was filed. R. 26. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between March 13, 2016, the date on which the application was filed, and the date of the decision. R. 18.
At step two, the ALJ found that Plaintiff's autism and anxiety are severe impairments. Id. The ALJ also found that Plaintiff's diagnosed urinary hesitancy, issues related to low testosterone, and depression were not severe impairments. R. 18-19.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of impairments that met or medically equaled the severity of any Listing. R. 19-21.
At step four, the ALJ found that Plaintiff had the RFC to perform a full range of work at all exertional levels subject to various non-exertional limitations. R. 21-25. The ALJ also found that Plaintiff had no past relevant work. R. 25.
At step five, the ALJ found that a significant number of jobs-i.e., approximately 104, 000 jobs as a laundry sorter; approximately 22, 785 jobs as a photocopy machine operator; approximately 75, 000 jobs as a garment folder-existed in the national economy and could be performed by an individual with Plaintiff's vocational profile and RFC. R. 26-27. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the Social Security Act from March 13, 2016, the application date, through the date of the decision. R. 27-28.
Plaintiff disagrees with the ALJ's findings at steps four and five and asks that the decision of the Acting Commissioner be reversed and remanded with directions for the granting of benefits or, alternatively, for further proceedings. Plaintiff's Memorandum of Law, ECF No. 15; Plaintiff's Reply Brief, ECF No. 17. The Acting Commissioner takes the position that her decision should be affirmed in its entirety because the ALJ's decision correctly applied the governing legal standards, reflected consideration of the entire record, and was supported by sufficient explanation and substantial evidence. Defendant's Brief Pursuant to Local Civil Rule 9.1, ECF No. 16.
IV. DISCUSSION
Plaintiff presents a number of challenges to the ALJ's decision, including, inter alia, a challenge to the ALJ's step five determination. Plaintiff's Memorandum of Law, ECF No. 15, pp. 21-27; Plaintiff's Reply Brief, ECF No. 17, pp. 5-7. Plaintiff argues, among other things, that the ALJ erred in relying on the testimony of the vocational expert at step five because that expert misunderstood the hypothetical posed to him by the ALJ. Id. The Commissioner does not address this specific argument. See generally Defendant's Brief Pursuant to Local Civil Rule 9.1, ECF No. 16. Plaintiff's argument is well taken.
At step five, the ALJ must decide whether the claimant, considering his RFC and vocational profile, can perform other jobs that exist in significant numbers in the national economy. 20 C.F.R. § 416.920(g). Unlike in the first four steps of the sequential evaluation, it is the Commissioner who bears the burden of proof at step five. Hess v. Comm'r Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 205 (3d Cir. 2008) (citing Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005)). “‘Advisory testimony from a vocational expert is often sought by the ALJ for that purpose [of determining whether other jobs exist in significant numbers in the national economy that the claimant could perform] . . . and factors to be considered include medical impairments, age, education, work experience and RFC.'” Id. at 205-06 (quoting Rutherford, 399 F.3d at 551). “Testimony of vocational experts in disability determination proceedings typically includes, and often centers upon, one or more hypothetical questions posed by the ALJ to the vocational expert.” Podedworny, 745 F.2d at 218. “Usually, the ALJ will ask whether a hypothetical claimant with the same physical and mental impairments as the claimant can perform certain jobs that exist in the national economy.” Zirnsak v. Colvin, 777 F.3d 607, 614 (3d Cir. 2014) (citing Podedworny, 745 F.2d at 218). “[T]he ALJ must accurately convey to the vocational expert all of a claimant's credibly established limitations.” Rutherford, 399 F.3d at 554. Credibly established limitations are limitations “that are medically supported and otherwise uncontroverted in the record.” Rutherford, 399 F.3d at 554. A “vocational expert's testimony concerning a claimant's ability to perform alternative employment may only be considered for purposes of determining disability if the [ALJ's hypothetical] question accurately portrays the claimant's individual physical and mental” limitations. Podedworny, 745 F.2d at 218. Stated differently, “[a] hypothetical question must reflect all of a claimant's impairments that are supported by the record; otherwise the question is deficient and the expert's answer to it cannot be considered substantial evidence.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
In the case presently before the Court, the hypothetical question posed by the ALJ to the vocational expert assumed a claimant with Plaintiff's vocational profile and the RFC found by the ALJ, including, inter alia, that there be “[n]o fast-paced work or strict production quotas.” R. 21, 72. The vocational expert initially testified that the jobs of laundry sorter, photocopying machine operator, and garment folder could be performed by such an individual. R. 72-73. However, on cross-examination by Plaintiff's counsel, the vocational expert went on to testify as follows:
Q And the jobs that you gave from the descriptions in the DOT seem to be fast-paced jobs.
A Okay. Well, that's a strict quota production. That's a little bit different than fast paced. I mean a fast food worker would be a fast-paced job.
Q Right, but not a production job.
A Right, exactly.
Q Right. So the Judge's hypothetical included no fast pace, did it not?
A I thought it was no fast-pace production work with some quotas.R. 78 (emphasis added). The vocational expert's testimony in this regard reflects an apparent misunderstanding of the ALJ's hypothetical. At a minimum, the record reflects some ambiguity as to whether the vocational expert understood the parameters of the claimant's RFC. See id.
In his written decision, the ALJ addressed Plaintiff's challenges based on an alleged inconsistency between the vocational expert's testimony and the Dictionary of Occupational Titles and on the specific demands of the job of garment folder. R. 26-27. However, the ALJ did not address the ambiguity in the record arising from the vocational expert's testimony regarding the RFC's limitation on fast-paced work and strict production quotas. R. 26-27, 78. The ALJ nevertheless relied on the vocational expert's ambiguous testimony to conclude that Plaintiff is not disabled. R. 26-28. Under these circumstances, the Court cannot conclude that substantial evidence supports the ALJ's decision. See Kevin S. v. Kijakazi, No. 3:20-CV-01226-SB, 2021 WL 4745982, at *3 (D. Or. Oct. 12, 2021) (“However, it appears that the VE [vocational expert] did not understand the ALJ's hypothetical to imply a six-hour standing/walking limitation . . . . Thus, the record is ambiguous with respect to whether the VE understood the ALJ's hypothetical . . . . In light of the ambiguities in the record regarding the impact of a six-hour standing/walking limitation on the disability determination, it is unclear if Plaintiff could perform the medium level jobs identified by the VE and relied upon by the ALJ at step five.”); Brenton K. F. v. Saul, No. 3:19-CV-1449-BN, 2020 WL 5801432, at *4 (N.D. Tex. Sept. 29, 2020) (“Here, it is unclear whether the VE [vocational expert] misheard or misunderstood the ALJ's hypothetical question . . . . As a result, the VE was responding to a defective hypothetical question. And, when an ALJ relies on testimony elicited by a defective hypothetical question, the Commissioner does not carry his burden to show that, despite a claimant's impairments, a claimant could perform past relevant work.”); cf. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (“A hypothetical question must reflect all of a claimant's impairments that are supported by the record; otherwise the question is deficient and the expert's answer to it cannot be considered substantial evidence.”).
This Court therefore concludes that the decision of the Commissioner must be reversed and the matter must be remanded to the Commissioner for further consideration even if, upon further examination, the ALJ again concludes that Plaintiff is not entitled to benefits. Cf. Zuschlag v. Comm'r of Soc. Sec. Admin., No. 18-CV-1949, 2020 WL 5525578, at *8 (D.N.J. Sept. 15, 2020) (“On remand, the ALJ may reach the same conclusion, but it must be based on a proper foundation.”).
Plaintiff asserts a number of other errors in the Commissioner's final decision. Because the Court concludes that the matter must be remanded for further consideration of the evidence at step five of the sequential evaluation, the Court does not consider those claims.
For these reasons, the Court REVERSES the Commissioner's decision and REMANDS the matter for further proceedings consistent with this Opinion and Order.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g).