Opinion
Civil Action 22-cv-00223-RAL
02-27-2023
EVELYN ROLON-TORRES, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant
MEMORANDUM OPINION
RICHARD A. LLORET, U.S. Magistrate Judge
The Commissioner of Social Security, through the decision of an Administrative Law Judge (“ALJ”), denied Evelyn Rolon-Torres' (“Ms. Rolon-Torres” or “Plaintiff”) application for Social Security disability benefits. The Appeals Council affirmed the decision. This appeal followed. The ALJ determined that Ms. Rolon-Torres was not disabled under the Social Security Act's (“SSA”) regulations. R. 17. Plaintiff requests review of the ALJ's decision. Doc. No. 8 (“Pl. Br.”) at 1. Because I find that the ALJ erred, I remand the decision.
All references to the administrative record are listed as “R. ___.” The administrative record is ECF Doc. No. 15.
Unless otherwise noted, as here, all references to the electronically docketed record are cited as “Doc. No. ___at ___.”
PROCEDURAL HISTORY
In 2020, Plaintiff filed an application for disability and disability insurance benefits (“DIB”). In her application, Plaintiff alleged a disability onset date of May 12, 2019, citing Herniated Disk, Sciatica, Anxiety, Depression, and Vertigo diagnosis. R. 186. In 2020, Ms. Rolon-Torres' application was denied at the initial level of review. R. 218. In December 2020, Plaintiff requested a hearing before an ALJ. R. 101. The request was granted, and a hearing was held via teleconference in April 2021. R. 16. Ms. Rolon-Torres and Denise Cordes, a vocational expert, testified at the hearing. R. 16, 159-84. The ALJ found Ms. Rolon-Torres was not disabled. R. 16. After proceeding through the SSA's appellate process, Ms. Rolon-Torres appealed in this court in 2021. Doc. No. 1.
FACTUAL BACKGROUND
A. The Claimant's Background
Ms. Rolon-Torres was 46 years old at the alleged disability onset date, making her a “younger person” under the regulations. R. 188; 20 C.F.R. §§ 404.1563. From 1997-1998 and from 2002-2010, Ms. Rolon-Torres worked for Stasky Inc. as an executive maid. R. 215, 335. From 2016-2019, Plaintiff worked for Bravo Healthcare Services, Inc. as an environmental servicer/cleaner. R. 215, 334.
Bravo Healthcare Services, Inc. is also referred to as Bravo Group Services in the record. See e.g., R. 328.
B. The ALJ's Decision
The ALJ found that Ms. Rolon-Torres was not disabled under the SSA from May 12 through December 31, 2019. R. 17. In reaching this decision, the ALJ made the following findings of fact and conclusions of law pursuant to Social Security's five-step, sequential evaluation process.
An ALJ evaluates each case using a sequential process until a finding of “disabled” or “not disabled” is reached. The sequence requires an ALJ to assess whether the claimant: (1) is engaging in substantial gainful activity; (2) has a severe “medically determinable” physical or mental impairment or combination of impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed in the social security regulations and mandate a finding of disability; (4) has the RFC to perform the requirements of his past relevant work (“PRW”), if any; and (5) is able to perform any other work in the national economy, taking into consideration his RFC, age, education, and work experience. See 20 C.F.R. §§ 4O4.i52O(a)(4)(i)-(v), 4i6.920(a)(4)(i)-(v).
First, the ALJ determined that Ms. Rolon-Torres was last insured on December 31, 2019, pursuant to the SSA's insured status requirements. R. 18. At step one, the ALJ determined that Ms. Rolon-Torres had not engaged in any substantial gainful activity during the alleged disability period. Id. At step two, the ALJ held that Ms. Rolon-Torres had five severe impairments: Degenerative Joint Disease in the right knee, right hip bursitis, Degenerative Disc Disease of the lumbar spine, Major Depression, and General Anxiety Disorder. R. 18-19. The ALJ also determined that Ms. Rolon-Torres had moderate limitations in all four Paragraph B mental health limitations. R. 21-22. At step three, the ALJ compared Ms. Rolon-Torres' impairments with those contained in the Social Security Listing of Impairments (“listing”). The ALJ found that Ms. Rolon-Torres' impairments failed to meet any listing criteria or medically equate to a listing's severity, individually or in combination. R. 19-22.
When an applicant is seeking disability insurance benefits (“DIB”) the ALJ must determine the applicant's insured status. 20 C.F.R. § 404.101(a). If an applicant is “neither fully nor currently insured, no benefits are payable based on [the applicant's] earnings.” Id. The applicant is able to recover DIB only through their last insured period. 42 U.S.C. § 423(a).
The four “Paragraph B” areas are (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. Id. The ALJ determines if the complainant has a limitation in these four categories on a sliding scale, with the least limitation being “no limitation” and the most severe limitation as an “extreme” limitation. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00F(2).
The regulations contain a series of “listings” that describe symptomology related to various impairments. See 20 C.F.R. Pt. 404, Subpt. P., App. 1. If a claimant's documented symptoms meet or equal one of the impairments, “the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987). If not, the sequential evaluation continues to step four, where the ALJ determines whether the impairments assessed at step two preclude the claimant from performing any relevant work the claimant may have performed in the past. Id.
Prior to step four, the ALJ determined that Ms. Rolon-Torres had the residual functional capacity (“RFC”) to perform light work that included occasional “stooping, crouching, crawling, and kneeling, as well as climbing ramps and stairs.” R. 22. The ALJ determined that Ms. Rolon-Torres was “limited to perform simple, routine tasks; make simple work-related decisions; and have frequent contact with the public, supervisors, and co-workers. She is further limited to work involving only occasional changes in the work setting.” Id. The ALJ found that Ms. Rolon-Torres could not perform occasional balancing; should not climb ladders, ropes, or scaffolds; and should “never work at unprotected heights.” Id. At step four, the ALJ determined that Ms. Rolon-Torres was “capable of performing past relevant work as a Cleaner, Housekeeper,” leading to her determination that Ms. Rolon-Torres was not disabled under the SSA. R. 26.
STANDARDS OF REVIEW
My review of the ALJ's decision is deferential. I am bound by her findings of fact to the extent those findings are supported by substantial evidence in the record. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). Accordingly, my review is limited to determining if substantial evidence supports the decision. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). If the ALJ's decision is supported by substantial evidence, her disability determination must be upheld. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); see also § 405(g). “A reviewing court reviews an agency's reasoning to determine whether it is ‘arbitrary' or ‘capricious,' or, if bound up with a record-based factual conclusion, to determine whether it is supported by ‘substantial evidence.'” Dickinson v. Zurko, 527 U.S. 150, 164 (1999).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is more than a mere scintilla but may be less than a preponderance.” Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). I must rely on the record developed during the administrative proceedings along with the pleadings in making my determination. See § 405(g). I may not weigh the evidence or substitute my own conclusions for the ALJ's. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). I must defer to the ALJ's evidentiary evaluation, witness assessment, and reconciliation of conflicting expert opinions. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009).
The ALJ's legal conclusions and application of legal principles are subject to plenary review. See Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). I must determine whether the ALJ applied the proper legal standards in reaching the decision. See Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984). Accordingly, I can overturn an ALJ's decision based on incorrect application of a legal standard even where I find the decision is supported by substantial evidence. Payton v. Barnhart, 416 F.Supp.2d 385, 387 (E.D. Pa. 2006) (citing Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983)).
DISCUSSION
Ms. Rolon-Torres argues for remand on four grounds. First, she claims the ALJ erred as a matter of law when finding that Ms. Rolon-Torres could perform her past relevant work (“PRW”), because the position was performed as a composite job and at a higher exertional level than the RFC limitations. Pl. Br. at 3-8. Second, the ALJ failed to account for Ms. Rolon-Torres' moderate limitation in her ability to concentrate, persist, and maintain pace. Id. at 8-12. Third, the ALJ derived power in violation of the Constitution's Separation of Powers clause. Id. at 12-15. Fourth, the ALJ and Appeals Council's authority was improper, because the ALJ was illegally appointed under the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3346(a). Id. at 15-17. I address only ground one and two, and, based upon the discussion below, I find that this matter warrants remand.
In her reply brief, Ms. Rolon-Torres withdrew this argument. Doc. No. 10, at 11. As this ground for relief has been withdrawn, I will not address it here.
A. The ALJ Failed to Adequately Take into Account Ms. Rolon-Torres' Moderate Limitation in Her Ability to Concentrate, Persist, and Maintain Pace at Step Four and Failed to Appropriately Explain Why the Limitation Was Omitted from the RFC.
Plaintiff argues the ALJ committed reversable error when she omitted Ms. Rolon-Torres' moderate limitation in the ability to concentrate, persist, and maintain pace in the residual functional capacity determination and resulting step four analysis. Pl. Br. at 8-12; Doc. No. 10 (“Pl. Reply Br.”) at 6. The Commissioner responds that the ALJ need not use specific language in her step four and five analyses, and the ALJ's opinion properly expressed the limitation. Doc. No. 9 (“Def. Resp.”) at 25. The Commissioner is correct: specific language is not required to communicate limitations found at steps two and three. However, the ALJ failed to explain why Ms. Rolon-Torres' moderate limitation in ability to concentrate, persist, or pace herself was not reflected in the RFC or the hypotheticals posed to the vocational expert.
The step two analysis requires the ALJ to determine if the claimant has a medically determinable impairment that is severe or if there is a combination of impairments that are severe. 20 C.F.R. § 404.1520(c). The ALJ determined that Ms. Rolon-Torres had moderate limitations in all four mental disorder “Paragraph B” criteria, including Ms. Rolon-Torres' ability to concentrate, persist, or maintain pace. R. 21. A complainant's ability to concentrate, persist, or maintain pace refers to “the abilities to relate to and work with supervisors, co-workers, and the public.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00E(3). Here, the ALJ determined that Ms. Rolon-Torres had a moderate limitation in these interactions. R. 21. An ALJ finds a moderate limitation when the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00F(2)(c).
The SSA defines “Paragraph B” criteria as “the functional criteria we assess, in conjunction with a rating scale (see 12.00E and 12.00F), to evaluate how [the claimant's] mental disorder limits [their] functioning.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00A(2)(b). The areas of mental functioning are (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. Id. The ALJ determines if the complainant has a limitation in these four categories on a sliding scale, with the least limitation being “no limitation” and the most severe limitation as an “extreme” limitation. Id. at 12.00F(2). 20 C.F.R. § Pt. 404, Subpt. P, App. 1
The SSA provides a non-exhaustive list on what conduct the definition may include: “cooperating with others; asking for help when needed; handling conflicts with others; stating [one's] own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00E(3).
Between steps three and four, the ALJ determines the claimant's RFC. 20 C.F.R. § 404.1520(e). A claimant's RFC is her ability to perform work activities' physical and mental demands on a sustained basis. Id. The ALJ considers any and all limitations the individual has that are “functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments.” SSR 96-8p, *1; See 20 C.F.R. § 404.1520(e). A person's RFC is “not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, *1.
The RFC should be calculated prior to or at the beginning on step four, because “RFC is an issue only at steps 4 and 5 of the sequential evaluation process.” SSR 96-8p, *3.
The ALJ found that Ms. Rolon-Torres had an RFC permitting
light work. . . except occasional balancing. . .; occasionally stooping, crouching, crawling, and kneeling, as well as climbing ramps and stairs; however, no climbing of ladders, ropes, scaffolds. While the claimant can endure exposure to extreme cold, she can never work at unprotected heights. The claimant is limited to perform simple, routine tasks; make simple work-related decisions; and have frequent contact with the public, supervisors, and co-workers. She is further limited to work involving only occasional changes in the work setting.20 C.F.R. § Pt. 404, Subpt. P, App. 1 R.22. Plaintiff argues that this RFC “failed to include ANY word-related limitations to account for Ms. Rolon-Torres's moderate limitation in concentrating, persisting, or maintaining pace.” R. 22. Pl. Br. at 10.
At step four, the ALJ had to determine if claimant's RFC allowed her to perform her PRW. 20 C.F.R. § 404.1520(e). The ALJ had to first compare the RFC to the claimant's PRW as actually performed. SSR 96-8p. If the complainant could no longer perform the PRW as actually performed, then the ALJ had to review if the complainant could perform the PRW as generally performed in the national economy. Id. The ALJ did this by asking the vocational expert hypothetical questions that incorporated the RFC limitations. R. 177-181. Ms. Rolon-Torres focuses on the interplay between the RFC and PRW, arguing that the “limitations that the ALJ finds credible at steps two and three cannot simply disappear at steps four or five, all limitations found credible by the ALJ must be incorporated into the RFC in some form.” Pl. Br. at 12 (citing Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004)).
In Ramirez, the Third Circuit rejected a hypothetical containing a limit to “one to two step tasks,” finding it failed to “accurately convey” all the complainant's impairments. 372 F.3d 546, 554. An ALJ must accurately convey all impairments when presenting a hypothetical to a vocational expert. Id. at 552. The hypothetical need not be a verbatim recitation of the RFC. Id. at n. 2. The Third Circuit found that the hypothetical's “one to two step tasks” limitation failed to accurately convey that the claimant “often has deficiencies in concentration, persistence, or pace,” because the language failed to convey a pacing limitation. Id. at 554 (internal citations omitted). An accurate hypothetical must communicate the employee's limitations in maintaining the requisite output that employers expect in addition to limitations to performing no more than “one to two step tasks.” Id. The Third Circuit acknowledged that the ALJ may have had “a valid explanation for this omission” such as a determination “that the deficiency in pace was so minimal or negligible that, even though Ramirez ‘often' suffered from this deficiency, it would not limit her ability to perform simple tasks under a production quota.” Id. at 555.
Ramirez was decided when the ALJ used a “never, seldom, often, frequent, and constant” limitation scale to define a limitation's severity. 20 C.F.R. § 416.920a (1999). Today, ALJs follow a “none, mild, moderate, marked, and extreme limitation” scale. 20 C.F.R. § 416.920a(c)(4). “[T]he weight of authority suggests that the two scales are functionally equivalent.” Sawyer v. Berryhill, 305 F.Supp.3d 664, 669 (E.D. Pa. 2018) (collating E.D. Pa. caselaw indicating that “often” is equivalent to “moderate”).
Fourteen years later, Judge Beetlestone considered “whether the ALJ was obligated to include in his hypothetical the fact that Plaintiff has a ‘moderate' limitation in his concentration, persistence, or pace.” Sawyer v. Berryhill, 305 F.Supp.3d 664, 666 (E.D. Pa. 2018). In Sawyer's hypothetical, the ALJ presented a limitation that Sawyer's potential job required “no detailed instructions” and provided no specific language regarding a moderate limitation in concentration, persistence, or pace. Id. at 671. The Court determined that the hypothetical was improper, as “[a] limitation to ‘no detailed instructions,' says less about an individual's ability to concentrate, persist, or keep pace than the limitation in Ramirez because it only refers to an employee's ability to learn instructions, rather than perform.” Id. at 671 (citing to Ramirez, 372 F.3d 546). The court specifically rejected arguments that a hypothetical with “simple routine tasks” or “unskilled work” limitations could appropriately communicate a moderate limitation in concentration, persistence, or pace. Id. (declining to follow Menkes v. Astrue, 262 Fed.Appx. 410 (3d Cir. 2008) and McDonald v. Astrue, 293 Fed.Appx. 941 (3d Cir. 2008), both of which are non-precedential).
As did Ramirez, Sawyer recognized that “the ALJ may have a valid explanation for limiting his hypothetical to those requiring only ‘no detailed instructions.' . . . The ALJ, however, provided no such explanation for his omission.” Sawyer, 305 F.Supp.3d at 671. The court remanded the case, because it lacked the authority to “impute reasons why the ALJ did not include the limitation in his hypothetical or whether his failure to do so is harmless in this case.” Id.
Hess, decided the following year, again considered whether an ALJ's hypothetical properly communicated a claimant's moderate limitation in concentration, persistence, or pace. Hess v. Comm'r Soc. Sec., 931 F.3d 198, 200 (3d Cir. 2019). The ALJ stated that Hess was “limited to jobs requiring understanding, remembering, and carrying out only simple instructions and making only simple work-related decisions.” Id. The district judge (Judge Beetlestone, as in Sawyer) concluded that the hypothetical failed to communicate the pacing limitation; the government appealed. Id. at 200-01.
Hess held that the ALJ was not restricted to particular language when conveying the limitation findings. The “social security regulations permit, and indeed require, an ALJ to offer ‘a narrative discussion describing how the evidence supports each' limitation at step four of the disability analysis.” Id. at 209 (quoting SSR 96-8P, at *7). The Third Circuit clarified that the ALJ is not restricted to the functional limitation language at later steps of her analysis, but the findings are relevant and the language of the functional limitation must sufficiently reflect the found impairments. Id. at 210.
The Third Circuit held that an ALJ may use a “simple task” in a hypothetical to convey a moderate limitation in concentration, persistence, or pace, so long as the ALJ provides a “valid explanation.” Id. at 211 (citing Ramirez, 372 F.3d at 554-55). “Without explanation, such a limitation does not warrant a conclusion about whether a claimant's difficulties in ‘concentration, persistence, or pace' are so serious that he cannot satisfy the functional requirements of ‘simple tasks.'” Id. at 213. This standard is a fact specific standard that must be determined on a case-by-case basis. Id. at 212.
A “simple task” equates “to jobs requiring understanding, remembering, and carrying out only simple instructions and making only simple work-related decisions.” Id. at 210-11 (internal citations omitted) (compiling cases and social security regulations).
The Court implemented the standard and found that the ALJ used “sound reasoning” to determine that the moderate limitation was not severe enough to impede Hess' ability to perform simple tasks. Id. at 213-15. The ALJ explained “that Hess's ‘selfreported activities of daily living, such as doing laundry, taking care of his personal needs, shopping, working, and paying bills (when he has money), . . . are consistent with an individual who is able to perform simple, routine tasks.'” Id. at 213-14 (internal citations omitted). The ALJ also appropriately reasoned “that ‘progress notes from treating and examining sources” were persuasive, because these sources indicated “no serious problems in this area of functioning, reporting that [Hess] could perform simple calculations, was fully oriented, and had intact remote/recent memory.'” Id. (internal quotations and citations omitted).
The basic criticism of the “simple tasks” limitation, in Ramirez and Hess, is that saying a task is “simple” and that a claimant can understand it and do it says nothing much about how the claimant will perform in a work setting that requires her to do the task with concentration, persistence, and pace. Both Ramirez and Hess offer a fix for this problem: a “valid explanation.” As Ramirez puts it, a “valid explanation” is one that makes it clear “that the deficiency in pace was so minimal or negligible that, even though Ramirez ‘often' suffered from this deficiency, it would not limit her ability to perform simple tasks under a production quota.” Ramirez, 372 F.3d at 555. It is possible to provide the requisite explanation in one simple declarative sentence, as suggested in Ramirez. The problem in Hess was that the one sentence suggested in Ramirez went missing.
Hess did not overrule Ramirez, it applied it. Reading the two cases together, it is clear that a limitation in the RFC to “simple tasks” is not a mantra that suffices, without more, to take into account a claimant's moderate limitations in concentration, persistence, and pace. Ramirez makes that plain, contra language in Menkes, a non-precedential case (“For example, performing a ‘simple routine task' typically involves low stress level work that does not require maintaining sustained concentration.” 262 Fed.Appx. 410, 412.). Hess made it clear that an ALJ may account for a claimant's limitations in concentration, persistence, and pace by a “simple tasks” limitation in the RFC when the ALJ provides a “valid explanation” of his or her reasoning. Ramirez described what this explanation would look like. 372 F.3d at 555. Hess considered the ALJ's explanation in that case in detail and decided that it sufficed. The question is whether the ALJ in Ms. Rolon-Torres' case supplied a “valid explanation,” as in Hess, or failed to provide such an explanation, as in Ramirez.
To reiterate, Ms. Rolon-Torres' RFC permits light work restricted to “simple, routine tasks;” “simple work-related decisions;” and “frequent contact with the public, supervisors, and co-workers.” R. 22, 24. The ALJ limited Ms. Rolon-Torres “to work involving only occasional changes in the work setting.” Id. The RFC, by its explicit language, fails to account for Ms. Rolon-Torres' limitations in concentration, persistence, and pace. The question, then, is whether the ALJ adequately explained, as in Hess, why a limitation to simple tasks, without more, sufficed to account for Ms. Rolon-Torres' moderate limitations in concentration, persistence, and pace. I turn to the ALJ's explanations.
I omit the ALJ's physical limitations because this analysis pertains only to mental limitations.
The ALJ determined that Ms. Rolon-Torres addressed her mental impairments with “routine and conservative” treatment, “without frequent emergency department visits, crisis interventions, or psychiatric hospitalizations during the relevant period.” R. 25. This amounts to a generalized commentary on Plaintiff's mental health, and does not grapple with the issue identified in Ramirez and Hess. Even if it did, the conclusion that Ms. Rolon-Torres received “conservative” treatment regarding her mental health, and the inferential light this casts on the functional limitations imposed by her condition, is not supported by opinion evidence, at least none cited by the ALJ.
It can be appropriate for a doctor to form an opinion that one would expect to see a more aggressive treatment history for a mental condition if it represented a serious functional limitation. Such an opinion would be based upon the doctor's years of medical training and clinical experience, and it would enable him or her to come to some general rule-of-thumb about the relationship between an aggressive treatment history and the severity of the disorder. Such an opinion is often offered by an examining or consulting physician and can form the basis of an ALJ's determination that the level of treatment is not commensurate with the limitations claimed by the applicant or the treating physician. The record contained such analysis regarding Ms. Rolon-Torres' physical ailments, but not her mental ailments. See R. 618-19 (medical notes outline that Ms. Rolon-Torres' pain was not responding to conservative therapy). Absent medical opinion evidence, there is no basis to make a valid inference that conservative treatment meant a condition of no functional consequence. It could just as easily be the case that “aggressive” treatment offered no better hope of improvement.
The ALJ found the opinions of State agency physician Marci Cloutier, Ph.D. (“Cloutier”) and State agency psychologist Anthony A. Galdieri, Ph.D. (“Galdieri”)partially persuasive, because the opinions “did not assess restrictions [in] interacting with others.” R. 26. The ALJ relied on Dr. Cloutier to find that Plaintiff “could understand, retain, and follow simple instructions (e.g., perform one-and-two-step tasks), make simple decisions, and would not require special supervision in order to sustain a routine, despite her impairments.” R. 25; and see R. 192-94. The ALJ further found, based on Dr. Cloutier's opinion, that Ms. Rolon-Torres was “able to meet the basic mental demands of work on a sustained basis.” R. 26. Id. The ALJ found that though Dr. Cloutier did not assess restrictions interacting with others, such limitations were appropriate, given Mr. Rolon-Torres' symptoms of depression and anxiety. R. 26. None of this addresses the issue identified in Hess and Ramirez.
Galdieri concurred with Cloutier. R. 198-206.
Hess provides a working example of a “valid explanation” that sufficed even without a straightforward sentence of the kind suggested in Ramirez. In Hess, the ALJ “coupled” her finding about the claimant's moderate limitations with an explanation that the claimant's activities of daily living were consistent with someone able to do simple routine tasks. 931 F.3d at 214. In the same discussion, the ALJ said progress notes from treating and examining sources indicated “no serious problems in this area of functioning.” Id. At another point in the ALJ's discussion, the ALJ mentioned that the claimant's activities of daily living demonstrated Hess could work as a dishwasher, and there were no reports of problems completing tasks during a period of close observation. Id.
Comparing this case to Hess is instructive. Here there is no “coupling” of a discussion of the claimant's activities of daily living with the capacity to do simple tasks. There is no language about progress notes that reflect “no serious problems in this area of functioning,” as in Hess. Id. at 214. Quite the contrary, a survey of the treatment notes reveals Ms. Rolon-Torres had serious mental illness problems for years. See Resp. at 26, with record citations. There is no mention by the ALJ of the observed ability to complete work tasks without problems, as in Hess. 931 F.3d at 214.
Of course, Hess is an example of how a “valid explanation” might look, not an exclusive template. Hess emphasizes that an ALJ need not “chant every magic word correctly” to avoid being remanded. 931 F.3d at 198. Nevertheless, the ALJ's opinion in this case provides neither Ramirez's “one sentence” explanation nor the level of detailed, albeit tangential, explanation furnished by the ALJ in Hess.
The Commissioner points to the ALJ's citation of “various medical records” and explanation that “mental status examinations documented both positive and negative findings, and that such findings supported her RFC assessment.” Resp. at 27 (citing the ALJ's opinion at R. 24, 26; which in turn cites to many pages within the record). This amounts to a generalized commentary on Plaintiff's mental health, but does not address the issue identified in Ramirez and Hess. I have reviewed in detail the record cites by the ALJ and the Commissioner and they paint a sad and unremitting picture of a severely depressed and anxious woman with much to be depressed and anxious about, including the suicide of her son, the incarceration of her husband, constant pain, and financial stress. Nothing in the cited portions of the record addresses the issue identified in Ramirez and Hess.
The ALJ and the Commissioner note that “Plaintiff's symptoms improved with therapy and psychiatric mediations.” Resp. at R. 21-22, 24 (citing to medical records). No, they didn't. I carefully examined the medical records cited at page 27 of the Commissioner's response, and at R. 24 (the ALJ's opinion). I prepared and attached an appendix of actual language taken from both the record pages cited by the ALJ and pages in between. To say that the record supports the conclusion that Ms. Rolon-Torres' symptoms “improved” with treatment is simply incorrect. The best that can be said is that on a handful of occasions during treatment that lasted three years the word “better” or “improved” was used to describe how Ms. Rolon-Torres felt, compared to her last visit. The record clearly undercuts the ALJ's characterization of Ms. Rolon-Torres as “improved” with treatment. Compare, e.g., Appendix, p. 42 (March, 2021) with p. 2 (February/March, 2018). The conclusion that Plaintiff “improved” with treatment is not supported by substantial evidence.
This was “cherry-picking.” “‘Cherry-picking' is a term used to describe selective citation of the record to support an opinion that is not supported by a fair and complete review of the entire record. See Smith v. Berryhill, No. 17-2661, 2018 WL 7048069, at *9 (E.D. Pa. Nov. 27, 2018) (Hey, MJ) (collecting cases).” Cordero v. Kijakazi, 597 F.Supp.3d 776, 816-17 n.51 (E.D. Pa. 2022)
Where the line between sufficient and insufficient explanation should be drawn, given Ramirez and Hess, is much debated in the cases, but a line must be drawn. I am not free to ignore the teachings of either Ramirez or Hess; both are precedential. In this instance I find the ALJ did not provide a “valid explanation,” under either Ramirez or Hess, of how a “simple tasks” limitation in the RFC sufficed to address Ms. Rolon-Torres' moderate limitations in concentration, persistence, and pace. The explanation was not “valid” because it was based on flawed inferences and a misreading of the record. This mattered: the vocational expert testified in response to an alternative hypothetical that a functional limitation that allowed for moderate difficulties in persistence, concentration, and pace would result in no available jobs for Ms. Rolon-Torres. R. 180-81. Because the RFC was defective, the hypothetical upon which the vocational expert relied was also defective, meaning that the VE's testimony in response to the hypothetical did not count as substantial evidence in support of the ALJ's decision. Remand is appropriate.
B. The ALJ Did Not Err When She Did Not Analyze If Ms. Rolon-Torres' PRW Was a Composite Job.
Plaintiff also asserts that the RFC determination was erroneous as a matter of law. Pl. Br. at 3. The ALJ found that Plaintiff could return to her PRW as a Cleaner, Housekeeper (DOT § 323.687-014) as generally performed. I find that the ALJ was correct and substantial evidence supports the decision.
At step four, the ALJ must compare the complainant's RFC to any PRWs. Reed v. Berryhill, 337 F.Supp.3d 525, 529 (E.D. Pa. 2018) (Rufe, J.) (internal citations omitted); SSR 82-61, 1982 WL 31387. An ALJ determines an applicant's PRW by reviewing “work done in the past 15 years, that was substantial gainful activity, and that lasted long enough for [the applicant] to learn it.” 20 C.F.R. § 404.1560(b)(1); SSR 82-61, 1982 WL 31387, at *1. Here, the ALJ determined that Ms. Rolon-Torres' has PRW experience as a “Housekeeper (Cleaner, Housekeeping) . . ., which is a light exertion occupation (as generally performed) but at heavy exertion as actually performed.” R. 26. In making the determination, the ALJ relied on Ms. Rolon-Torres' testimony regarding her job duties and the vocational expert's responses to the hypotheticals. R. 26.
The ALJ also determined that Ms. Rolon-Torres has PRW experience as a “Cleaner, Hospital (sample DOT code 323.687-010), which is a medium exertion job as generally and actually performed.” R. 26. Plaintiff does not make any assertion regarding this position. See Pl. Br. at 5-8. The ALJ does not comment on if Ms. Rolon-Torres can or cannot perform this job. R. 26. I will not review this PRW.
Once the ALJ decides if the applicant has a PRW, the ALJ then reviews if the applicant has an RFC to perform either “(1) [t]he actual functional demands and job duties of a particular past relevant job; or (2) [t]he functional demands and job duties of the occupation as generally required by employers throughout the national economy.” SSR 82-61, 1982 WL 31387, at *1 (citing to 20 C.F.R. §§ 404.1520(e), 416.920(e)). If the applicant can perform under either prong, the ALJ cannot find the applicant disabled. Id. Here, the ALJ relied on the vocational expert's testimony to determine that Ms. Rolon-Torres “could perform the job of Cleaner, Housekeeper as generally performed.” R. 26, 180-81. The Plaintiff's argument focuses on this two-part analysis.
Plaintiff's argument is that the ALJ erred because Ms. Rolon-Torres' PRW was a composite job, which barred the general performance analysis of what employers in the national economy expect. Pl. Br. at 3. The Commissioner responds that the record does not contain any evidence indicating two or more jobs and the vocational expert's testimony presents only one DOT position: Cleaner, Housekeeper. Com. Resp. 22-24. Plaintiff responds that the ALJ is the SSA's rules and policy expert -not the vocational expert-and her determination was wrong. Pl. Reply Br. at 2.
In her first argument, Plaintiff argues the ALJ is precluded from finding that Plaintiff could perform her PRW as actually performed, because the vocational expert testified that Ms. Rolon-Torres actually performed at a heavy level of exertion. Pl. Br. at 4. The Commissioner posits this argument is moot, because the ALJ determined that Ms. Rolon-Torres could perform her PRW as generally performed. See Com. Resp. at 22-24. The ALJ indeed determined that Ms. Rolon-Torres could perform her PRW as generally performed, but not as actually performed. R. 26. This argument agrees with the ALJ's determination, and is moot.
A composite job occurs when the individual's PRW consists of “significant elements of two or more occupations and . . . have no counterpart in the DOT.” Past Relevant Work (PRW) as the Claimant Performed It, SSA POMS DI 25005.020. “In other words, a composite position must involve additional main duties from another DOT position, rather than merely excessive functions with the job duties from one DOT position.” Reed, 337 F.Supp.3d at 529 (internal citation omitted); Giddings v. Berryhill, 2018 WL 4252426, at *4 (E.D. Pa. Sept. 5, 2018) (Jones, J.). If the ALJ determines that the claimant's PRW is a composite job, the ALJ must explain why. SSA POMS DI 25005.020. Once a composite job has been identified, the ALJ determines if the complainant can perform the job as actually performed. SSA POMS DI 25005.020.
These POMS provisions are binding on all ALJs. SSR 13-2p, 2013 WL 621536, *15. However, “[c]iting POMS provisions does not aid plaintiff. . . because they lack the force of law and create no judicially-enforceable rights.” Colon Martinez v. Comm'r of Soc. Sec., 2019 WL 3336336, at *4 (D.N.J. July 25, 2019) (internal quotations omitted) (citing to Bordes v. Comm'r of Soc. Sec., 235 Fed.Appx. 853, 859 (3d Cir. 2007); Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 71 n.2 (3d Cir. 1996)).
Since a composite job lacks a DOT definition, the ALJ cannot review if the complainant could perform the work as generally performed in the national economy. Id.
In Reed, Plaintiff argued he previously performed a composite job, because his PRW included “additional functions beyond the DOT description of substance abuse counselor.” Reed, 337 F.Supp.3d at 529. The Court denied the argument, because Reed, who held the burden to demonstrate he could not return to his prior job, failed to show that his PRW “included significant variations with the main duties included in another DOT position.” Id. (emphasis added). Weidner and Colon Martinez relied on Reed to affirm their holdings that the Plaintiff did not have a composite job.
In Weidner v. Kijakazi, Plaintiff argued that her prior work experience was a composite job. 2022 WL 610702, *7 (D. Del. Feb. 1, 2022) (slip copy). Weidner had two PRWs. The first was a receptionist position, which Weidner argued also entailed security duties and an emergency provision to provide personal care to residents. Id. at *8. The Court found these extra duties were insufficient to classify the receptionist experience as a composite job, because testimony indicated that the extra performance occurred only two to three times per week and took about 15-30 minutes. Id. The Court rejected that her providing care duty was a sufficient additional duty, because there was no expectation to lift or physically assist residents. Id. Weidner's second PRW was accounts payable, where Plaintiff asserted an additional duty to lift and carry heavy boxes upstairs to file. Id. The Court determined this PRW was not a composite job, because she was expected to lift and move heavy boxes about once every two days, which was far less than that of a file clerk, the alternative DOT position Plaintiff proposed. Id. at *9.
The Plaintiff in Colon Martinez asserted that his gambling cashier PRW included significant elements of the change person DOT position. Colon Martinez v. Comm'r of Soc. Sec., 2019 WL 3336336, at * 3 (D.N.J. July 25, 2019). The Court rejected the argument on five grounds: (1) the ALJ's reliance on Plaintiff's disability report and hearing testimony was appropriate when determining Plaintiff's DOT position; (2) the ALJ appropriately relied on the vocational expert's testimony that Plaintiff worked only as a gambling cashier; (3) Plaintiff failed to show that the job included significant elements of the change person's job; (4) Plaintiff lifting coin bags was not a substantial job requirement; and (5) citing to POMS provisions is unpersuasive “because they lack the force of law and create no judicially-enforceable rights.” Id. at *3-4 (internal quotations omitted) (citing to Bordes v. Comm'r of Soc. Sec., 235 Fed.Appx. 853, 859 (3d Cir. 2007); Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 71 n.2 (3d Cir. 1996)).
In this matter, Plaintiff argues that her Cleaner, Housekeeper PRW was a composite job. Pl. Br. at 6-8. The DOT defines Cleaner, Housekeeper as a position that can take place in “any industry,” and requires the employee to
Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title.
Definition of Cleaner, Housekeeper DOT § 323.687-014, 1991 WL 672783. The Master title is defined as a light work position that can take place in any industry. CLEANER (any industry) I Master Title, 1991 WL 645969. The position has the typical classifications of “Cleaner, Commercial or Institutional (any industry); Cleaner, Hospital (medical ser.); Cleaner, Housekeeping (any industry); Cleaner, Industrial (any industry); Housecleaner (hotel & rest.).” Id. The job-holder:
[m]aintains premises of commercial, institutional, or industrial establishments, office buildings, hotels and motels, apartment houses, retirement homes, nursing homes, hospitals, schools, or similar establishments in clean and orderly condition, performing the following duties: Cleans rooms, hallways, lobbies, lounges, rest rooms, corridors, elevators, stairways, and locker rooms and other work areas. Sweeps, scrubs, waxes, and polishes floors, using brooms and mops and powered scrubbing and waxing machines. Cleans rugs, carpets, upholstered furniture, and draperies, using vacuum cleaner. Dusts furniture and equipment. Polishes metalwork, such as fixtures and fittings. Washes walls, ceiling, and woodwork. Washes windows, door panels, and sills. Empties wastebaskets, and empties and cleans ashtrays. Transports trash and waste to disposal area. Replenishes bathroom supplies. Replaces light bulbs. Classifications are made according to type of establishment in which work is performed.Id.
The ALJ had no reason to consider if Plaintiff's position was a composite job. First, the additional duties Plaintiff proposes are insignificant. To be a composite job, Ms. Rolon-Torres must have performed significant additional duties from another DOT profession. Plaintiff proposed additional duties: the job was performed in a residential setting, she moved items above the DOT's light work classification, and she cleaned items not listed in the DOT's definition. Pl. Br. 6-8. The vocational expert's testimony indicates that the Cleaner, Housekeeper profession is routinely performed in a residential setting:
Q: [A]nd the DOT code that you gave for the housekeeping/cleaner, is it correct that according to the Dictionary of Occupational Titles, by its very description, that covers people who work at places like hotels, restaurants, clubs, beauty parlors, dormitories?
A: Correct.
Q: Okay. And that does not indicate in there anything about cleaning residential settings, correct?
A: When you look at employment by industry, in terms of this job, I mean, they're giving me examples, okay, but they're not telling you all places that a person can be involved in housekeeping/cleaning. In fact, the largest number of people working in this capacity, the largest-no, I shouldn't say the largest, no-the largest number of people working in this capacity in the United States work in private households.
Q: Okay.
A: The second largest number is self-employed people. So, even though you've got, you've specified industries, that it's not limited to that.R. 180-81. Working above the DOT's defined exertion level is not an additional, substantial work duty. See Garcia v. Astrue, 2009 WL 1165342, at *1 (E.D. Pa. Apr. 28, 2009) (upholding that Garcia's PRW was not a composite job even though he was required “to regularly lift heavy drums, and heavy lifting is not included in the DOT definition”). None of these additional duties were significant additional duties performed in addition to the DOT's defined main duties. Just performing the job duties in a residential setting rather than a commercial setting adds nothing significant to the job's duties, at least not based on the evidence introduced in this case.
Second, Ms. Rolon-Torres failed to establish the other DOT position with which her job performance aligns. Here, Ms. Rolon-Torres argues she did more than what was expected. Pl. Br. at 6. She failed to propose alternative DOT positions that supply the composite job duties both during the ALJ's proceedings and before me. See Weidner, 2022 WL 610702, at *8-9 (where Plaintiff proposed an alternative DOT position); Colon Martinez, 2019 WL 3336336 at *3 (same); and Giddings, 2018 WL 4252426, at *4 (Plaintiff's counsel asked the vocational expert about alternative DOT job descriptions). Plaintiff has not submitted an alternative DOT position or established supplemental duties as required for a composite job holding. I find the ALJ did not err in finding that Ms. Rolon-Torres could perform the DOT definition of Cleaner, Housekeeper as generally performed.
CONCLUSION
For the reasons explained above, Ms. Rolon-Torres' request for review is granted, the final decision of the Commissioner is reversed, and this matter is remanded to the Commissioner for further proceedings consistent with this opinion.
APPENDIX
Contained in this appendix are snippets of all the Comprehensive Biopsychosocial Evaluations (“CBE”), Progress Treatment Notes, Psychological Treatment Notes, and Treatment Plan Updates that Cognitive Behavior Health Services Produced from February 5, 2018 to March 25, 2021 while treating Ms. Rolon-Torres. The excerpts are derived from Exhibits 4F (R. 554-602) and 12F (R. 841-1095), and are focused on Ms. Rolon-Torres' self-reported mental health and treatment provider's analysis of the therapy sessions each Progress Treatment Note summarizes. However, I have reordered the screenshots to proceed chronologically, so Ms. Rolon-Torres' mental health is more accurately communicated.
(Exhibit Omitted)