RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

MEMORANDUM OPINION AND ORDER, the decision of the Administrative Law Judge is VACATED and the case is REMANDED for further proceedings consistent with this Memorandum Opinion; CASE CLOSED. Signed by Judge Renee Marie Bumb on 9/22/17. (js)

IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW
JERSEY CAMDEN VICINAGE

BEATRIZ RODRIGUEZ,
Plaintiff,

Civil No. 16-4706 (RMB)
MEMORANDUM OPINION & ORDER

v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Beatriz Rodriguez (the “Plaintiff”) from a denial of
social security disability benefits on July 18, 2014 which was
upheld by the Appeals Council on June 10, 2016. [Record of
Proceedings, “R.P.”, p. 1-8]
For the reasons set forth below, the Court vacates the
decision of the Administrative Law Judge (“ALJ”) and remands for
proceedings consistent with this Memorandum Opinion and Order’s
reasoning.
I.

STANDARD OF REVIEW
When reviewing a final decision of an ALJ with regard to

disability benefits, a court must uphold the ALJ’s factual
decisions if they are supported by “substantial evidence.” Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§ 405(g),
1

1383(c)(3).
scintilla.

“Substantial evidence” means “‘more than a mere
It means 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 Cons. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel, 186 F.3d
422, 427 (3d Cir. 1999).
In addition to the “substantial evidence” inquiry, the
court must also determine whether the ALJ applied the correct
legal standards. See Friedberg v. Schweiker, 721 F.2d 445, 447
(3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000).

The Court’s review of legal issues is plenary. Sykes, 228

F.3d at 262 (citing Schaudeck v. Comm’r of Soc. Sec., 181 F.3d
429, 431 (3d Cir. 1999)).
The Social Security Act defines “disability” as the
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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

The Act

further states,
[A]n 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,
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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. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant’s disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v).

In Plummer, 186 F.3d at 428,

the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 1520(a). If a claimant is found
to be engaged in substantial activity, the disability
claim will be denied. Bowen v. Yuckert, 482 U.S. 137,
140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that
[his] impairments are “severe,” she is ineligible for
disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant’s impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform her past relevant work. 20 C.F.R. § 404.1520(d).
The claimant bears the burden of demonstrating an
inability to return to her past relevant work. Adorno v.
Shalala, 40 F.3d 43, 46 (3d Cir. 1994). If the claimant
is unable to resume her former occupation, the
evaluation moves to the final step.
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At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. § 404.1520(f).
The ALJ must show there are other jobs existing in
significant numbers in the national economy which the
claimant can perform, consistent with her medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant’s impairments in
determining whether she is capable of performing work
and is not disabled. See 20 C.F.R. § 404.1523. The ALJ
will often seek the assistance of a vocational expert at
this fifth step. See Podedworny v. Harris, 745 F.2d 210,
218 (3d Cir. 1984).

II.

FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its

determination on appeal, which is narrow.
Plaintiff was born in 1962, and was 47 years old on the
date of injury onset. [R.P., p. 43]

She was 52 years old on the

date of the ALJ’s disability determination. [Id., p. 44]
At the telephonic disability hearing held on June 10, 2014,
the ALJ heard testimony from two witnesses: Plaintiff, with the
assistance of an interpreter 1, and the Vocational Expert.
A.

Plaintiff’s impairments

At the disability hearing, Plaintiff testified that she
suffers from a combination of disabilities that prevent her from
working. [R.P., p. 56]

Specifically, she described chronic

The hearing transcript is not clear whether the interpreter
was in the same location as Plaintiff, or was translating over
the telephone, from another location.
1

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problems with her right arm, her right knee, and her back. [Id.,
p. 56-57]

She also testified that she suffers from depression.

[Id., p. 57]
With regard to her right arm, Plaintiff testified that she
could not fully extend her arm such that her arm “freezes at an
angle that makes it so [she] can’t use it.” [R.P., p. 56, 59]
Plaintiff also stated that “sometimes” she experiences
“tingling” and “pain” “running from [her] elbow to [her]
shoulder.” [Id., p. 59]

She testified that “the most that [she]

can lift and carry” is “five or six pounds.” [Id., p. 64]
As to her right knee, Plaintiff testified the “swelling”
“prevents walking” [R.P., p. 59], and in cold weather she uses a
cane to walk. [Id., p. 62]

Plaintiff described “difficulty”

climbing stairs; she must move slowly and “use the wall.” [Id.,
p. 63-64]
With regard to her back, Plaintiff testified that she
experiences “pain” and “soreness” [R.P., p. 56, 64]; that she
cannot sit or stand “for too long” “without feeling pain or
discomfort.” [Id., p. 64]
Lastly, as to Plaintiff’s depression, she testified that
she had “suffered tragedies” in the past, including a severe
sexual assault at the age of 15 [R.P., p. 58], and “the death of
two of [her] nephews in 2013.” [Id., p. 65]

Plaintiff testified

that she was receiving talk therapy for her depression, and had
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collected short-term disability for depression in 2009. [Id., p.
65]
Plaintiff’s medical records document each of these
ailments.

Most of those medical records are discussed in the

ALJ’s decision [see R.P., p. 41-42], and need not be repeated
here.
B.

Vocational Expert’s Testimony

The Vocational Expert testified that Plaintiff’s previous
job of cashier is classified as a light job. [R.P., p. 66]
Beyond this, however, neither the lawyers appearing in this
appeal 2, nor the Court, can discern the remainder of the
Vocational Expert’s testimony.

Four of the six substantive

questions the ALJ asked of the expert are recorded as
“[INAUDIBLE]” on the transcript of the telephonic hearing. [Id.,
p. 66-67] 3
III.

2

ALJ’S DETERMINATION

A different lawyer represented Plaintiff before the ALJ.

In addition to audibility challenges that may arise when
disability hearings are conducted telephonically, the lack of
any visual information presents other problems. Observing a
testifying witness’s physical appearance and demeanor would seem
to be crucial information for any factfinder who must evaluate a
witness’ credibility-- particularly when a witness’s testimony
concerns his or her physical health and associated symptoms,
such as pain. While the instant appeal does not turn on any
credibility determination the ALJ made, if it did, the Court
would consider this lack of visual information in weighing such
determination.
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The ALJ concluded that “the claimant has not been under a
disability within the meaning of the Social Security Act from
December 26, 2009 through the date of this decision.” [R.P., p.
36]

Relevant to the issues presented on appeal, the ALJ held

that “claimant has the following severe impairments: depressive
disorder, right shoulder tendinitis, and arthritis of the
knees.” [Id., p. 38]

However, the ALJ also found “that the

claimant has the residual functional capacity to perform medium
work as defined in 20 CFR 404.1567(c) and 416.976(c),
characterized by an ability to sit, stand, and walk up to six
hours in an eight-hour day and lift/carry up to 50 pounds
occasionally, limited to simple routine tasks, with frequent
contact with supervisors, co-workers and the general public.”
[Id., p. 40]
Relying on the Vocational Expert’s testimony, the ALJ also
found that “[t]he claimant is unable to perform any past
relevant work,” which past work, the Vocational Expert
testified, “require[d] a light level of exertion.” [R.P., p. 43;
see also R.P., p. 66]
IV.

ANALYSIS
Plaintiff argues that the ALJ’s determination that she has

the ability to perform medium work-- the ability to sit, stand,
and walk up to six hours in an eight-hour day and lift/carry up
to 50 pounds occasionally-- is not supported by substantial
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evidence.

Plaintiff correctly states, “‘[m]edium work involves

lifting no more than 50 pounds at a time with frequent lifting
or carrying of objects weighing up to 25 pounds. 20 CFR
404.1567(c).

These types of positions include loading logs onto

trucks (Log Load Helper, DOT 921.687-022), handling baggage at
airports (Porter, DOT 357.677-010), and shoveling scrap metal
into furnaces (Remelter, DOT 502.685-014).” [Pl’s Brief, Dkt.
No. 8, p. 18]
Plaintiff observes however, and this Court agrees, that the
ALJ’s finding in this regard is in apparent conflict with the
ALJ’s other findings that Plaintiff (a) has the “severe
[physical] impairments” 4 of right shoulder tendinitis and
arthritis of the knees; and (b) “is unable to perform her past
relevant work,” which was light work.

The Court is left to

wonder, how can it be that Plaintiff is unable to perform her
previous light job as a cashier, yet able to perform a medium
job such as baggage handler?

The ALJ’s decision does not

provide any explanation for these seemingly inconsistent
findings.
Perhaps an answer, or a portion of an answer, may be found
in the testimony of the Vocational Expert, upon which the ALJ

“Severe impairment” is defined as “any impairment or
combination of impairments which significantly limits your
physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c).
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relied.

Unfortunately, though, the hearing transcript is

incomplete.

Even the Government concedes, “the hearing

transcript is not entirely clear and we do not definitively know
on what basis the vocational expert concluded that Plaintiff
could not return to her past work.” [Gov’t’s Br., Dkt. No. 11,
p. 15 n.3]

In the very next sentence, the Government then goes

on to speculate, “[i]t could be that the ALJ found Plaintiff
could not do her past work at the casino because, although a
light job, there was significant contact with others – she
testified there was a lot of tension between the managers and
employees, including sexual harassment, persecution, and foul
language that exacerbated her mental health due to a prior
sexual assault.

What we do know is that the ALJ found in

Plaintiff’s favor at step four.” [Id.]
This argument, however, only illustrates the Court’s point:
the reasoning that necessarily must have been integral to the
ALJ’s decision simply is not explained in the ALJ’s decision,
nor can it be found elsewhere in the record.
“The Third Circuit has held that access to the
Commissioner’s reasoning is [] essential to a meaningful court
review.” Sanford v. Comm’r of Soc. Sec., No. CIV. 13-0366 NLH,
2014 WL 1294710, at *2 (D.N.J. Mar. 28, 2014)(citing Gober v.
Matthews, 574 F.2d 772, 776 (3d Cir. 1978)); see also Stockett
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v. Comm’r of Soc. Sec., 216 F. Supp. 3d 440, 456 (D.N.J.
2016)(“The Third Circuit ‘requires the ALJ to set forth the
reasons for his decision.’”)(quoting Burnett v. Comm’r of Soc.
Sec. Admin., 220 F.3d 112, 123 (3d Cir. 2000))(Bumb, D.J.).

The

Court cannot determine on the present record whether the ALJ’s
decision was supported by substantial evidence because it
presently lacks the requisite access to the ALJ’s reasoning.

It

may well be the case that the ALJ will arrive at the same
decision.

At this juncture, however, the ALJ must provide

additional explanation for the decision.

As such, the Court

vacates the decision of the ALJ and remands for proceedings
consistent with the above analysis. 5
ACCORDINGLY, it is on this 22nd day of September, 2017,
ORDERED that the decision of the Administrative Law Judge
is VACATED and the case is REMANDED for further proceedings
consistent with this Memorandum Opinion; and it is further
ORDERED that the Clerk of Court shall close this case.

___s/ Renée Marie Bumb___
RENÉE MARIE BUMB, U.S.D.J.

In light of this disposition, the Court does not reach
Plaintiff’s additional argument that the ALJ “violated” Sykes v.
Apfel, 228 F.3d 259 (3d Cir. 2000), and Social Security Ruling
AR 01-1(3).
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