Opinion
CASE NO. 3:19-cv-01577-CCC-GBC
01-04-2021
JESSICA TORRES, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
This matter is before the undersigned United States Magistrate Judge for decision. Jessica Torres ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. Legal Standards of Review
To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920 (effective from August 24, 2012, to present). The process requires an Administrative Law Judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (citing 42 U.S.C. § 405(g)).
II. Procedural History
On April 19, 2016, Plaintiff filed an application for Title XVI Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401-433, 1382-1383, with a last insured date of June 30, 2020, and an alleged disability onset date of June 26, 2015. (Tr. 20, 52). Plaintiff alleged disability due to back condition, mental health, anemia, high cholesterol, neck surgery aftermath, and thyroid condition. (Tr. 52). On July 26, 2018, the ALJ held a hearing where Plaintiff proceeded with representation and a translator. (Tr. 33-51). On September 10, 2018, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 13-32). Plaintiff sought review of the decision, which the Appeals Council denied on July 19, 2019, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-8).
Disability insurance benefits are paid if the individual is disabled by the last date that a claimant meets the requirements of being insured. See 42 U.S.C. § 423(a)(1)(A), (c)(1).
On September 11, 2019, Plaintiff, filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On November 13, 2019, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On December 30, 2019, Plaintiff filed a brief in support of the appeal. (Doc. 11 ("Pl. Br.")). On January 28, 2020, Defendant filed a brief in response. (Doc. 12 ("Def. Br.")). On February 7, 2020, Plaintiff filed a reply. (Doc. 13 (Reply)).
III. Issues on Appeal
The issues before the court is whether substantial evidence supports the ALJ's limitations in the RFC and whether the ALJ erred in the analysis of the evidentiary consistency. Pl. Br. at 7-11.
IV. Analysis
A. Residual Functional Capacity Determination
Substantial evidence does not support the ALJ's lay interpretation of medical records in determination of the RFC. See Bolden v. Saul, No. CV 19-2, 2020 WL 579045, at *2-3 (W.D. Pa. Feb. 5, 2020); Johnson v. Berryhill, No. CV 17-574, 2018 WL 2335879, at *2 (W.D. Pa. May 23, 2018) ("'an administrative law judge lacks the expertise to ascertain a claimant's residual functional capacity from raw medical data'"). The ALJ determined Plaintiff retained an RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) . . . . Her work is limited to simple, routine, repetitive tasks in a work environment free from fast paced production and involving only simple work related decisions with few if any workplace changes, no interaction with the public, occasional interaction with coworkers, but no tandem tasks, and occasional supervision.(Tr. 23). The ALJ gave little weight to the only two medical opinions in the record; the June 2016 physical CE opinion from Dr. Cole and the June 2016 psychological CE psychological opinion from Dr. Loomis. Substantial evidence does not support the ALJ's finding of non-exertional impairments in the RFC. Regarding mental limitations, Dr. Loomis opined Plaintiff demonstrated:
[l]imitation in her ability to follow and understand simple directions and instructions, perform simple tasks independently, learn new tasks, and make appropriate decisions. [Plaintiff] evidenced moderate limitation in her ability to maintain a regular schedule, relate adequately with others, and appropriately deal with stress. [Plaintiff] evidenced marked limitation in her ability to maintain attention and concentration and perform complex tasks independently or under supervision.(Tr. 332). Dr. Loomis recommended an intelligence evaluation and "possibly a psychiatric examination." (Tr. 332-33). Although the ALJ found Dr. Loomis' opinion "generally consistent with the evidence of record," the ALJ still accorded "limited weight" to the opinion stating that it did "not use vocationally relevant terms," and was "thus somewhat vague." (Tr. 26). Substantial evidence does not support the ALJ's allocation of limited weight to Dr. Loomis's opinion as the ALJ failed to cite to evidence to contradict Dr. Loomis' opinion regarding Plaintiff's moderate limitation to maintain a regular schedule and marked limitation in her ability to maintain attention and concentration. (Tr. 332-33). Moreover, the ALJ failed to consider Dr. Loomis' opinion indicating the necessity of an intelligence and psychiatric evaluation to determine the full extent of Plaintiff's work-based limitations. See Neifert v. Saul, 2020 WL 6585897, at *6 (M.D. Pa. Nov. 10, 2020); Bolden v. Saul, 2020 WL 579045, at *2-3 (W.D. Pa. Feb. 5, 2020).
The Court recommends remand for the ALJ to obtain and consider evidence regarding Plaintiff's intellectual functioning, given: (1) Dr. Loomis' recommendation; (2) instances in records indicating Plaintiff experiences severe fluctuations in psychiatric symptoms; (3) records indicating Plaintiff experiences difficulty comprehending; (4) a July 2018 record indicating Plaintiff received in-patient psychiatric treatment for three days in 2017 that was not addressed by the ALJ (Tr. 729), and; (5) a 2018 record indicating Plaintiff experienced head trauma. (Tr. 175, 232, 234, 330, 335, 663); see e.g., Gleason v. Colvin, 152 F. Supp. 3d 364, 381-88 (M.D. Pa. 2015) (finding prejudicial error where record omitted probative medical evidence regarding psychiatric hospitalization). Although the record demonstrates Plaintiff underwent a brain MRI indicating normal findings, it is unclear when Plaintiff experienced the head trauma indicated in the February 2018 record. (Tr. 655). A February 2018 record indicated: (1) a past hospitalization for head trauma; (2) a hospitalization for a separate incident of jumping out of a moving vehicle in 2008; (3) Plaintiff was unable to understand information, unable to understand reading, and; (4) an examination revealed Plaintiff demonstrated poor impulse control, poor judgement and lacked insight. (Tr. 232, 655). Records from 2018 indicate a deterioration of symptoms manifesting in increased panic attacks and increased symptoms related to her schizophrenia including increased: (1) paranoid delusions; (2) catatonic behaviors; (3) disorganized thinking, and (4) auditory hallucinations (Tr. 651-53, 655-56, 666). A March 2018 record noted Plaintiff reported listening to music to "drown out the voices," endorsed symptoms indicating paranoid ideation, and described three past suicide attempts which included the 2008 jumping from a moving car, an undated incident involving driving to a train track with an intention to kill herself, and an undated incident wherein she stabbed herself with a knife. (Tr. 666). The March and April 2018 examinations noted Plaintiff's language was not impaired, she demonstrated good word comprehension, appropriate thought process, intact memory, attention span, concentration, judgement and insight. (Tr. 666, 670). The abovementioned evidence, in totality, supports Dr. Dr. Loomis' opinion that greater development is necessary to determine the full extent of Plaintiff's non-exertional limitations.
B. Illiteracy and Conflict with the Dictionary of Occupational Titles
While the ALJ acknowledges Plaintiff is illiterate pursuant to the regulations (Tr. 26 (20 C.F.R. §§ 404.1564(b), 416.964(b)), this illiteracy is not reflected in the RFC or in the jobs identified by the ALJ that Plaintiff is capable of doing. The ALJ determined that with the given RFC, Plaintiff was capable of working as a (1) machine feeder represented under the Dictionary of Occupational Titles ("DOT") number 583.686-014; (2) press feeder represented under the DOT number 583.686-030; and (3) electronic worker represented under the DOT 726.687-010. (Tr. 27). Pursuant to the DOT, machine feeder and press feeder jobs require a language level one which entails the ability to: (1) "[r]ecognize meaning of 2,500 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers; (2) the ability to "[p]rint simple sentences containing subject, verb, and object, and series of numbers, names, and addresses, and; (3) the ability to "[s]peak simple sentences, using normal word order, and present and past tenses." 583.686-014 Fusing-Machine Feeder, DICOT 583.686-014; 583.686-030 Press Feeder, DICOT 583.686-030. Pursuant to the DOT, the electronics worker requires a language level two which entails: (1) having a "[p]assive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words per minute. Read adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation. Read instructions for assembling model cars and airplanes; (2) "[w]rite compound and complex sentences, using cursive style, proper end [punctuation], and employing adjectives and adverbs," and; (3) [s]peak clearly and distinctly with appropriate pauses and emphasis, correct [punctuation], variations in word order, using present, perfect, and future tenses." 726.687-010 Electronics Worker, DICOT 726.687-010. The Court is persuaded by the reasoning in Rivera-Negron v. Astrue, wherein the court reasoned:
[G]iven that the ALJ determined that Rivera-Negron is illiterate and the VE testified that Rivera-Negron can perform the jobs which, according to the DOT, require a minimum level of proficiency in English, there is a conflict.
SSR 00-4p requires the ALJ to provide a reasonable explanation for accepting the VE's testimony over the DOT description when the two conflict. SSR 00-4p; Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). Here, the ALJ did not resolve the conflict. He did not explain why he concluded that Rivera-Negron, who did not speak English, could perform the jobs that the DOT described as requiring
Level 1 Language Development. Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001). Without any explanation for why the ALJ credited the VE's testimony despite the conflict with the DOT, we cannot conclude that the ALJ's decision is supported by substantial evidence. Stated differently, there is a lack of substantial evidence to support the ALJ's finding that a Spanish-speaking only individual could perform the jobs identified by the VE, all of which have a Level 1 language requirement.Rivera-Negron v. Astrue, No. CIV.A. 12-3837, 2013 WL 5823713, at *5-6 (E.D. Pa. Oct. 30, 2013); accord Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001); Saez-Ortiz v. Comm'r of Soc. Sec., 2019 WL 324922, at *9-10 (D.N.J. Jan. 25, 2019) (collecting cases). In this instance, the RFC failed to reflect Plaintiff's language and literacy deficits and the ALJ failed to address these deficits while questioning the vocational expert during the hearing. (Tr. 47-50). Based on the foregoing, substantial evidence does not support the ALJ's decision and the Court recommends remand.
. . . .
Applied literally, the DOT language requirement would render every non-English speaking individual per se disabled because every job described in the DOT requires an ability to communicate in English at various levels depending on the job. The DOT has no language level below Level 1. Consequently, with respect to claimants found to be illiterate, the DOT will always conflict with the VE's testimony. In those cases, SSR 00-4p imposes an affirmative duty on the ALJ to ask the VE how an illiterate person can perform the identified jobs. Making that inquiry will overcome the anomaly created by the DOT language requirements and will foreclose an argument that all illiterate people are per se disabled. Hence, the VE must explain how, despite the DOT language requirement, a non-English speaking individual can perform those jobs.
. . . .
Had the VE been asked whether a conflict between her testimony and the DOT existed and then proceeded to identify the conflict, she likely could have explained that Rivera-Negron could perform the identified jobs despite her illiteracy in English. However, the VE was never asked and no explanation was provided. Accordingly, her testimony cannot support the finding that Rivera-Negron is not disabled.
C. Other Allegations of Error
Plaintiff's additional claims of error may be remedied through the case's treatment on remand. Thus, the Court declines to address those claims. A remand may produce different results on these claims, making discussion of them moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016). See also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (declining to address plaintiff's other arguments for remand, "as the ALJ's findings may be revised in any decision issued following the new hearing"); LaSalle v. Comm'r of Soc. Sec., 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011); Bruce v. Berryhill, 294 F. Supp. 3d 346, 364 (E.D. Pa. 2018).
V. Recommendation
The undersigned recommends the Court vacate the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and remand the case for further proceedings. Accordingly, it is HEREBY RECOMMENDED: 1. The decision of the Commissioner of Social Security denying Plaintiff's benefits under the Act be vacated and the case remanded to the Commissioner of Social Security to develop the record fully, conduct a new administrative hearing and appropriately evaluate the evidence. 2. The Clerk of Court close this case. The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Dated: January 4, 2021,
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE