KIRBY v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Renee Marie Bumb on 9/29/2017. (rtm, )

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

FAITHE L. KIRBY,
Plaintiff,
Civil No. 16-5159(RMB)
v.
COMMISSIONER OF SOCIAL
SECURITY,

OPINION

Defendant.

BUMB, United States District Judge:
THIS matter comes before the Court upon an appeal by
Plaintiff Faithe L. Kirby (the “Plaintiff”) of the final
determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security benefits for the period between October 24, 2010 and
January 21, 2015. (Pl.’s Br. 1). For the reasons set forth
below, the Court vacates the decision of the Administrative Law
Judge (“ALJ”) and remands for proceedings consistent with this
Opinion.
I.

Disability Defined
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 that:
[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, 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 v. Apfel, 186 F.3d
422 (3d Cir. 1999) the Third Circuit described the
Commissioner's inquiry at each step of this analysis, as
follows:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 404.1520(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,” he is ineligible
for disability benefits.

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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 his past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of
demonstrating an inability to return to his past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume his
former occupation, the evaluation moves to the final
step.
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 his 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 he 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).
Plummer, 186 F.3d at 428.
II.

Background
The Court recites only the facts that are necessary to its

determination on appeal, which is narrow. 1

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Plaintiff’s medical history is extensive, and the record in this
case is voluminous. Because the Court decides this matter on a
narrow basis, namely, an error by the ALJ in questioning a
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A. Procedural History
Plaintiff applied for social security benefits on March 27,
2012, alleging that as of April 1, 2010, she was disabled due to
Post-Traumatic Stress Disorder (“PTSD”), generalized anxiety
disorder, panic disorder, shoulder joint degeneration,
arthritis, acid reflux disease, and asthma. (Administrative
Record “A.R.” 216-19, 251). Plaintiff’s claim was denied on
August 28, 2012. (Id. at 141-45). On August 29, 2012, Plaintiff
amended the alleged onset date of her disability to March 15,
2008. (Id. at 229). Reconsideration was denied on January 12,
2013. (Id. at 159-64).
On March 13, 2013, Plaintiff requested a hearing, (A.R.
165-69), and on June 5, 2014, a hearing was held before the
Honorable Marguerite Toland (the “ALJ”). (Id. at 41-88).
Plaintiff, who was represented by counsel, testified at the
hearing. Marian Morocco, a vocational expert, also testified at
the hearing. At the time of the hearing, Plaintiff again amended
the alleged onset date to October 24, 2010. (Id. at 20, 44).

On

January 21, 2015, the ALJ issued a decision finding that
Plaintiff was not disabled. (Id. at 20-34). The Appeals Council
denied Plaintiff’s request for review on June 22, 2016, (A.R. 1-

vocational expert, a detailed recitation of such history is not
necessary here.
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6), at which time the ALJ’s decision became the final
determination of the Commissioner.
B. Brief Factual Background
Plaintiff was born on June 6, 1972, and was 40 years old on
the alleged disability onset date. (Id. at 98). Her husband of
twelve years, with whom Plaintiff had a volatile and abusive
relationship, died on March 24, 2010 after battling drug and
alcohol addiction. (Id. at 56-60). At some point during their
relationship, Plaintiff also began abusing drugs, and she
suffered with addiction issues for a time. (Id. at 56).
Plaintiff has not worked since the date of her husband’s death.
Plaintiff suffers from a number of impairments, both
physical and mental, as is exemplified by her extensive record
of emergency room trips and visits to her primary care
physician, Dr. Gross. (Id. at 373-76, 307, 313-14, 378-84, 400,
504-05, 525-75). During the period between 2010 and 2013,
Plaintiff sought treatment for, among other things: multiple
left shoulder injuries, multiple apparent suicide attempts,
generalized anxiety disorder, asthma, migraines, PTSD,
depression, insomnia, and panic attacks. (Id.) She testified
that beyond her mental inflictions, she suffers from neck, back,
shoulder, and hip pain. (Id. at 66). She takes medication to
help alleviate that pain. (A.R. 79).

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According to her Adult Function Report, (Id. at 262-69),
Plaintiff is now limited in her ability to “lift, function
around others, dress, and bathe.” (Id. at 263). She cannot sleep
because “pain and insomnia keep [her] awake.” (Id.) She can,
however, still cook a full dinner every day, do some household
chores, and shop for groceries. (Id. at 264-65). Plaintiff has
not driven since her husband’s death, and she can no longer ride
horses, which was a hobby of hers prior to the alleged
disability onset date. (Id. at 265-66). She also cannot lift
more than twenty pounds or walk for more than 15 minutes without
a ten minute break. (Id. at 267).
C. Testimony of Vocational Expert
At Plaintiff’s hearing, the ALJ elicited testimony from an
independent vocational expert, Marian R. Morocco. (Id. at 79).
After reviewing Plaintiff’s work history and listening to her
testimony, Ms. Morocco testified to Plaintiff’s ability to
perform her past relevant work and alternative positions in
light of her limitations. (Id.) With respect to Plaintiff’s past
relevant work, Ms. Morocco’s testimony was limited to three
jobs: typesetter, customer service representative, and
scheduler. (Id.)
Ms. Morocco testified as follows regarding Plaintiff’s
ability to work in light of her limitations:

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Q Okay . . . Ms. Morocco, please assume an individual
having [Plaintiff’s] age, education and the past work
that you described. Please assume that this individual
is limited to sedentary work. This individual can sit
up to six hours per day but no more than one hour at a
time and then would need to stand or shift positions
every hour for four to five minutes while remaining
on-task. This individual would be limited to low
stress work . . . [and] can have no more than
occasional interaction with the public and this
individual can perform no more than occasional
overhead reaching. Based on those limitations, could
this individual perform any [of Plaintiff’s] past
work?
. . .
A Okay. Your Honor, the typesetter does not really
require contact with the public, so that would be
okay.
. . .
A The personnel and the – scheduling for personnel and
the customer service would and so I would eliminate
those two.
. . .
Q Okay. And are there other jobs that this individual
could perform?
A At the sedentary exertional level, there would be a
document preparer . . . There is also an addresser . .
. [a]nd there is a final assembler.
. . .
A – another one, Judge . . . semiconductor bonder.
. . .
Q Okay. And what would be the employer’s tolerance for
being off-task at those jobs?
A No more – somewhere between 10 and 15%, Your Honor.

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Q If the individual was off-task 5%, they could still
perform those jobs?
A Yes, Your Honor.
Q What if they are routinely off-task . . . 15 to 20%
of the day in addition to normal breaks. Could the
perform any of these jobs?
A No, Your Honor. That would preclude employment.
Q And what if the individual had frequent anxiety
attacks . . . and was off-task . . . let’s say an
additional half-hour every day due to just anxiety
symptoms in addition to normal breaks. Could they do
any of these jobs?
A No, Your Honor.
Q And is your testimony consistent with the DOT?
A It is, with the exception of course of the off-task
which is based on my experience and the anxiety
attacks which of course adds to the off-task.
(Id. at 81-83)(emphasis added).
D. ALJ’s Decision
The ALJ applied the requisite five-step analysis,
ultimately concluding that Plaintiff was not “disabled.” At Step
1, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her amended alleged onset
date of October 24, 2010. (Id. at 22). At Step 2, The ALJ found
that Plaintiff had seven severe impairments: post-traumatic
stress disorder (“PTSD”), generalized anxiety disorder, panic
disorder, depressive disorder, lumbar degenerative disc disease,
obesity, and partial thickness tear of the left rotator cuff

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with tendinitis. 2 (Id. at 22-23). Next, at the Third Step, the
ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, App. 1. (Id. at 23-24).
Based on her findings, the ALJ determined that Plaintiff
had the Residual Functional Capacity (“RFC”) to perform
[S]edentary work as defined in 20 CFR 404 .1567(a) and
416.967(a) except she can sit up to 6 hours per day,
but no more than 1 hour at a time and then would need
to stand or shift positions for 4-5 minutes every hour
while remaining on task. She can perform no more than
occasional overhead reaching. She is limited to low
stress work, defined as routine work that would not
involve a fast production rate pace. She can have no
more than occasional and superficial interaction with
the public, coworkers, and supervisors. She would be
off task 5% of the workday in addition to normal
breaks.
(Id. at 25-26)(emphasis added).
In making these findings, the ALJ looked to the Plaintiff’s
testimony, the Adult Function Report completed by Plaintiff, and
the Plaintiff’s medical record including the records from
several hospital visits and the notes and reports of multiple

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The ALJ also addressed Plaintiff's asthma, hypertension,
polysubstance abuse, and alcohol abuse. (A.R. 23). She found,
however, that because each of these issues was being monitored
and controlled by Plaintiff, they did not cause more than a
minimal limitation on Plaintiff’s ability to perform basic work
activities. (Id.)
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doctors. 3 (Id. at 26-32). The ALJ found that Plaintiff's
allegations regarding the severity and intensity of her physical
limitations were “not entirely credible” and not corroborated by
the medical evidence, and that Plaintiff's allegations regarding
the severity and intensity of her mental limitations were not
supported by the objective medical evidence. (Id. at 27).

The

ALJ afforded little weight to the opinions of Dr. Gross, some
weight to the opinions of Dr. Mintzer, and little weight to the
opinions of the state agency psychological and medical
consultants. (Id. at 31-32).
After performing the RFC assessment, the ALJ determined
that Plaintiff was able to perform her past relevant work as a
typesetter. (Id. at 33). This determination was based in large
part on the testimony of Ms. Morocco, the vocational expert,
that Plaintiff’s work as a typesetter was sedentary semi-skilled
work that an individual having Plaintiff’s RFC could perform.

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Among other things, the ALJ specifically referenced:
Plaintiff’s numerous emergency room visits between 2010 and
2013; her intake at Newpoint Behavioral Health in October 2011;
treatment notes prepared by Fred Gross, Psy.D. and medical
reports completed by Dr. Gross in April 2012 and November 2012;
psychological evaluations conducted in 2007, 2009, and 2012; a
consultative examination performed by Lawrence Mintzer, Ph.D. in
July 2014, and a separate medical source statement provided by
Dr. Mintzer; reports provided by state agency medical and
psychological consultants; the results of x-rays and an MRI
performed on Plaintiff in 2012 and 2013; a consultative
examination performed by Ken Klausman, M.D. in December 2012;
and the treatment notes of Plaintiff’s primary care physician,
Joseph Hassman, D.O. (A.R. 26-32).
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(Id. at 33-34, 79-87). The ALJ specifically referred to the
vocational expert’s testimony regarding an employer’s tolerance
for being off task. (Id. at 33).
As an alternative finding, the ALJ held that had the
analysis reached Step 5, Plaintiff still would not have been
found disabled, because there are other jobs existing in the
national economy that she would be able to perform. (Id.) In
reaching this alternative finding, the ALJ again relied on the
vocational expert’s testimony, specifically that based on her
RFC, Plaintiff would be able to perform such positions as
document preparer, addresser, and semi-conductor bonder. (Id. at
34). Thus, Plaintiff's application was denied. (Id.)
III. Standard of Review
When reviewing an ALJ’s final decision on disability
benefits, courts are required to uphold the ALJ’s factual
determinations if they are supported by “substantial evidence.”
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§
405(g), 1383(c)(3). “‘Substantial evidence’ has been defined as
‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Dellapolla v. Comm'r of Soc. Sec., 662 Fed. Appx.
158, 160 (3d Cir. 2016) (quoting Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971))).
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If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)); see also Guerrero v.
Comm'r, No. 05-1709, 2006 WL 1722356, at *3 (D.N.J. June 19,
2006) (“The ALJ's responsibility is to analyze all the evidence
and to provide adequate explanations when disregarding portions
of it.”), aff'd, 249 F. App'x 289 (3d Cir. 2007). As stated by
the Third Circuit,
[U]nless the [Commissioner] has analyzed all evidence
and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his
decision is supported by 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 v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec'y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted).
While the Commissioner's decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. Appx. 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm'r, 220 F.3d 112,
122 (3d Cir. 2000). See also Fargnoli v. Massanari, 247 F.3d 34,
42 (3d Cir. 2001)(“Although we do not expect the [administrative
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law judge] to make reference to every relevant treatment note in
a case where the claimant ... has voluminous medical records, we
do expect the ALJ, as the factfinder, to consider and evaluate
the medical evidence in the record consistent with his
responsibilities under the regulations and case law.”).
In addition to the “substantial evidence” inquiry, the
Court must also determine whether the ALJ applied the correct
legal standards. See Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000). The Court’s review of legal issues is plenary. Id. at 262
(citing Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d
Cir. 1999).
IV.

Analysis
Plaintiff argues that the ALJ erred by (1) failing to

present a complete hypothetical to the vocational expert; (2)
assigning little weight to the opinion of Dr. Gross; (3)
assigning little weight to portions of the opinions of Dr.
Mintzer; and (4) improperly evaluating Plaintiff’s credibility.
A. The ALJ Erred in Posing a Hypothetical Vocational Profile
to the Vocational Expert
Plaintiff argues that the ALJ failed to pose an appropriate
hypothetical based upon Plaintiff's RFC to the vocational expert
and, as a result, the determinations that Plaintiff could
perform her past relevant work and other jobs that exist in
significant numbers in the national economy are not supported by

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substantial evidence. Because the Court agrees that the
hypothetical posed to the vocational expert was incomplete, the
Court will remand for further proceedings.
“The ALJ must accurately convey to the vocational expert
all of a claimant's credibly established limitations.”
Rutherford v. Barnhart, 399 F .3d 546, 553-54 (3d Cir.
2005)(quoting Plummer, 186 F.3d at 431). “When an ALJ poses a
hypothetical to a [vocational expert], that hypothetical must
include all of the plaintiff's impairments that are supported by
the record. If the hypothetical does not include all of the
plaintiff's impairments, then it is deficient.” Davis v. Comm'r
of Soc. Sec., No. 11–3036, 2012 WL 2594354, at *11 (D.N.J. July
5, 2012) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d
Cir. 1987)). This rule applies to “every credible limitation
established by the physical evidence.” Plummer, 186 F.3d at 431.
A vocational expert's response to an inaccurate or incomplete
hypothetical cannot constitute substantial evidence. Chrupcala,
829 F.2d at 1276.
Here, the ALJ determined that Plaintiff had the RFC to
perform sedentary work but, among other limitations, “would be
off task 5% of the workday in addition to normal breaks.” (A.R.
26). The ALJ asked the vocational expert about time off task.
(Id. at 81-83). The Plaintiff, however, argues that the ALJ
never asked the most important question: whether this limitation
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would impact Plaintiff’s past work or other available work.
(Pl.’s Br. 21). The Court agrees that it is not clear that this
limitation was properly included in the hypothetical.
The Court is concerned primarily with an apparent
inconsistency in the ALJ’s hypothetical. The ALJ did ask the
vocational expert “[i]f the individual was off-task 5%, they
could still perform these jobs?” to which the vocational expert
responded “[y]es, Your Honor.” (A.R. 82). However, almost
immediately after that question, the ALJ asked “what if the
individual . . . was off-task . . . an additional half hour
every day due to just anxiety symptoms in addition to normal
breaks . . . [c]ould they do any of those jobs?” (Id. at 83). As
Plaintiff correctly notes, 5% of an eight-hour workday is 24
minutes. (Pl.’s Br. 22). The confusion here is exacerbated by
the structure of the ALJ’s questioning, in which she began by
asking simply about time off task, and then adding the modifier
“in addition to normal breaks” mid hypothetical. It is possible
that the vocational expert’s answers to these questions were
consistent, and that this six minute difference between thirty
minutes off task and 5% of the day off task is material. It is
also possible, however, that what the ALJ was asking and what
the vocational expert was answering were two different
questions. As such, it is not clear that the ALJ conveyed all of
Plaintiff’s limitations, as required.
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Defendant contends that “off-task” on its face refers to
periods outside of normal breaks. (Def.’s Br. 14-15). The Court
is not persuaded that the testimony in this case makes that
clear. However, even if that were the case, it does not explain
why a six-minute difference in “time off task” would have such a
meaningful effect on the Plaintiff’s ability to work. Because
the ALJ’s hypothetical was incomplete, or at least unclear, the
vocational expert’s response thereto is not substantial
evidence. The Court is compelled to remand this matter so that
the ALJ may present the vocational expert with a complete and
accurate hypothetical upon which the expert may rely in
rendering an opinion. On remand, the ALJ may reach the same
conclusion, but it must be based on a proper foundation.
For the reasons set forth above, the Court is constrained
to remand this matter to the ALJ for further consideration
consistent with this Opinion and Order. Moreover,
because remand is necessitated on this ground, the Court need
not reach Plaintiff's remaining arguments.
An Order and Final Judgment consistent with this Opinion
shall issue on this date.
s/ Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATED: September 29, 2017

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