COLE v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Noel L. Hillman on 9/28/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANA LYNN COLE,
1:16-cv-05444-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
SAMUEL FISHMAN
11450 BUSTLETON AVENUE
PHILADELPHIA, PA 19116
On behalf of Plaintiff
MATTHEW JARED LITTMAN
MELISSA KAY CURRY
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
6TH FLOOR
PHILADELPHIA, PA 19123
On behalf of defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), regarding Plaintiff’s application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“Social Security benefits”) under Title II and Title XVI of the
Social Security Act.

42 U.S.C. § 401, et seq.

The issue before

the Court is whether the Administrative Law Judge (“ALJ”) erred

in finding that there was “substantial evidence” that Plaintiff
was not disabled at any time since her alleged onset date of
disability, August 1, 2009.

For the reasons stated below, this

Court will reverse the ALJ’s decision and remand the matter for
further proceedings.
I.

BACKGROUND AND PROCEDURAL HISTORY
On January 5, 2012, Plaintiff, Dana Lynn Cole, filed an

application for disability benefits, claiming that since August
1, 2009, when she was 34 years old, her severe impairments of
fibromyalgia, arthritis, learning disorder, post-traumatic
stress disorder, anxiety, depression and personality disorder
have rendered her completely disabled and unable to work.

Prior

to her claimed disability, Plaintiff worked as a mail handler.
After her claim was denied at the administrative levels,
Plaintiff appeared before an ALJ for a hearing on February 24,
2014.

On December 2, 2014, the ALJ held a supplemental hearing. 1

The ALJ determined that Plaintiff was not disabled because she
retained the ability to perform light work.
the decision.

1

Plaintiff appealed

The Appeals Council reviewed the ALJ’s decision,

Plaintiff points
(“VE”) was present
testimony from the
Plaintiff’s appeal

out that even though a vocational expert
at both hearings, the ALJ did not take any
VE at either hearing. This is one basis for
as discussed below.
2

and upheld it, thus rendering it as final.

Plaintiff now seeks

this Court’s review.
II.

DISCUSSION
A.

Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).

Ventura v.

A reviewing court

must uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”

42 U.S.C. §§ 405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

It

means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id.

The inquiry is not

whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.

See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988).

3

A reviewing court has a duty to review the evidence in its
totality.
1984).

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

“[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’”

Schonewolf v.

Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.
474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons 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)).

The Third

Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”

Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:

4

Unless 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 substantial evidence approaches
an abdication of the court’s duty to
scrutinize the record as a whole to
determine whether the conclusions reached
are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

Although

an ALJ, as the fact finder, must consider and evaluate the
medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004).

In terms of judicial review,

a district court is not “empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.”
Williams, 970 F.2d at 1182.

However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy
itself that the Commissioner arrived at his decision by
application of the proper legal standards.

Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);
Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.

Standard for Disability Insurance Benefits

The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
5

insurance benefits 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 12 months.
1382c(a)(3)(A).

See 42 U.S.C. §

Under this definition, a Plaintiff qualifies as

disabled only if his physical or mental impairments are of such
severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type 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)

(emphasis added).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

6

3.

If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
claimant will be found “disabled.”

4.

If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”

5.

Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not he is capable of
performing other work which exists in the national
economy. If he is incapable, he will be found
“disabled.” If he is capable, he will be found “not
disabled.”

20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).

In the first four steps of the

analysis, the burden is on the claimant to prove every element
of his claim by a preponderance of the evidence.

See id.

In

the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other

7

kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.
Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

In this case, the ALJ found that Plaintiff has not engaged
in substantial gainful activity since the alleged onset of
disability (step one).

The ALJ next found that Plaintiff’s

fibromyalgia, arthritis, learning disorder, post-traumatic
stress disorder, anxiety, depression and personality disorder
were severe (step two).

The ALJ then found that Plaintiff’s

impairments did not meet the medical equivalence criteria (step
three).

At step four, the ALJ found that Plaintiff was not

capable of performing her previous job as a mail handler, but
the ALJ found that Plaintiff had the residual functional
capacity (RFC) to perform other jobs at the unskilled light work
level, 2 which jobs are in significant numbers in the national

2

See 20 C.F.R. § 404.1567 (“Physical exertion requirements. To
determine the physical exertion requirements of work in the
national economy, we classify jobs as sedentary, light, medium,
heavy, and very heavy. These terms have the same meaning as they
have in the Dictionary of Occupational Titles, published by the
Department of Labor. In making disability determinations under
this subpart, we use the following definitions: . . .
(b) Light work. Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be
8

economy (step five).
Plaintiff argues that the ALJ erred by not relying upon the
testimony of a Vocational Expert (“VE”) despite the presence of
significant nonexertional limitations. 3

Specifically, Plaintiff

contends that when significant nonexertional limitations are
present, and when, as here, the ALJ recognizes Plaintiff’s
nonexertional limitations in his determination of Plaintiff’s

very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time....”).
3

Plaintiff also argues that the ALJ erred by failing to account
for his own Psychiatric Review Technique (“PRT”) findings which
identified nonexertional limitations in social functioning.
Because the Court finds that the ALJ did not properly support
his burden at step five by failing to consider Plaintiff’s
nonexertional limitations singularly or in combination with her
exertional limitations, and did not base his decision on a
proper SSR, vocational expert testimony, or other evidence in
addition to the Medical-Vocational Guidelines or “Grids,” and
will remand the matter on that basis, the Court need not address
Plaintiff’s second argument. Even if the ALJ had included
Plaintiff’s social functioning limitations in the RFC, he would
have still erred at step five by solely following the Grids.
The Court strongly suggests, however, that on remand the ALJ
address Plaintiff’s argument that the ALJ’s RFC determination
improperly failed to take into account his finding at step two
that Plaintiff suffers from a moderate limitation in social
functioning.
9

RFC, the ALJ may not rely solely upon the “Grids” or “Grid
rules,” which is a group of clear rules that dictate a finding
of disabled or not disabled based on a claimant’s vocational
factors (age, education, and work experience) and individual
RFC.

See Medical–Vocational Guidelines of Appendix 2 of 20

C.F.R. pt. 404, subpt. P, app. 2.

By not taking testimony from

a VE to assess what unskilled light work jobs would be available
when considering Plaintiff’s RFC, which included nonexertional
limitations, Plaintiff argues that ALJ committed reversible
error.

This Court agrees.

The SSA regulations explain what constitutes exertional and
nonexertional limitations that limit a person’s ability to meet
certain demands of a job.

See 20 C.F.R. § 404.1569a.

“When the

limitations and restrictions imposed by your impairment(s) and
related symptoms, such as pain, affect only your ability to meet
the strength demands of jobs (sitting, standing, walking,
lifting, carrying, pushing, and pulling), we consider that you
have only exertional limitations.”

Id.

Impairments and related

symptoms, such as pain, that only affect a person’s ability to
meet the demands of jobs other than the strength demands, are
considered nonexertional.

Id.

Examples of nonexertional

limitations or restrictions include: difficulty functioning

10

because you are nervous, anxious, or depressed; difficulty
maintaining attention or concentrating; difficulty understanding
or remembering detailed instructions; difficulty in seeing or
hearing; difficulty tolerating some physical features of certain
work settings, e.g., you cannot tolerate dust or fumes; and
difficulty performing the manipulative or postural functions of
some work such as reaching, handling, stooping, climbing,
crawling, or crouching.

Id.

The Regulations explain, “Work exists in the national
economy when there is a significant number of jobs (in one or
more occupations) having requirements which you are able to meet
with your physical or mental abilities and vocational
qualifications.”

20 C.F.R. § 404.1566(b).

In making this step

five determination, an ALJ is required to take notice of
reliable job information available from various governmental and
other publications, such as the Dictionary of Occupational
Titles, County Business Patterns, Census Reports, Occupational
Analyses, and Occupational Outlook Handbook.
also use the services of a vocational expert.

Id.
Id.

The ALJ may
A VE, when

presented with a hypothetical claimant mirroring the relevant
impairments of the current disability applicant, can offer
specific examples of available jobs or opine on the applicant's

11

ability to perform a certain range of work.

A vocational

specialist is not always required, however, and an ALJ may
solely rely upon the Grids in his step five analysis.

See SSR

85–15.
To improve the uniformity and efficiency of the disability
determination process, in 1978 the SSA promulgated the MedicalVocational Guidelines, or “Grids.”

Sykes v. Apfel, 228 F.3d

259, 263 (3d Cir. 2000) (explaining that prior to 1978, after a
claimant's limitations and abilities had been determined at a
hearing, a vocational expert ordinarily would testify as to
whether work existed that the claimant could perform).

The

SSA’s Program Policy Statement SSR-85-15 explains that the Grids
discuss the relative adjudicative weights which are assigned to
a person’s age, education, and work experience, and the three
tables in Appendix 2 illustrate the interaction of these
vocational factors with his or her RFC, which is expressed in
terms of sedentary, light, and medium work exertion.
The Grids reflect the potential occupational base of
unskilled jobs for individuals who have severe impairments which
limit their exertional capacities: approximately 2,500 medium,
light, and sedentary occupations; 1,600 light and sedentary
occupations; and 200 sedentary occupations — each occupation

12

representing numerous jobs in the national economy.

SSR-85-15.

Where individuals also have nonexertional limitations of
function or environmental restrictions, the table rules provide
a framework for consideration of how much the individual's work
capability is further diminished in terms of any types of jobs
within these exertional ranges which would be contraindicated by
the additional limitations or restrictions.

Id.

Where a

claimant's qualifications correspond to the job requirements
identified by a rule, the guidelines direct a conclusion that
work exists that the claimant can perform.

Sykes, 228 F.3d at

263.
The Third Circuit has expressly directed that when a
claimant’s RFC contains nonexertional impairments in addition to
exertional impairments, and even if the claimant’s exertional
impairments would not preclude working at level identified in
the Grids, an ALJ cannot rely solely upon the Grids in making
the step five determination of whether jobs exist in the
national economy that the claimant may perform.

The Third

Circuit explained:
When a claimant has an additional nonexertional
impairment, the question whether that impairment diminishes
his residual functional capacity is functionally the same
as the question whether there are jobs in the national
economy that he can perform given his combination of
impairments. The grids do not purport to answer this
13

question, and thus under Campbell the practice of the ALJ
determining without taking additional evidence the effect
of the nonexertional impairment on residual functional
capacity cannot stand.
Sykes, 228 F.3d at 270 (citing Heckler v. Campbell, 461
U.S. 458, 467 (1983)).
Following the Third Circuit’s decision in Sykes, the SSA
issued “Acquiescence Ruling 01-1(3) -

Sykes v. Apfel, 228 F.3d

259 (3d Cir. 2000) — Using the Grid Rules as a Framework for
Decisionmaking When an Individual's Occupational Base is Eroded
by a Nonexertional Limitation — Titles II and XVI of the Social
Security Act.”

That Ruling provides that in Delaware, New

Jersey, Pennsylvania or the Virgin Islands,
In making a disability determination or decision at step 5
of the sequential evaluation process (or the last step in
the sequential evaluation process in continuing disability
review claims), we cannot use the grid rules exclusively as
a framework for decisionmaking when an individual has a
nonexertional limitation(s). Before denying disability
benefits at step five when a claimant has a nonexertional
limitation(s), we must: (1) take or produce vocational
evidence such as from a vocational expert, the DOT or other
similar evidence (such as a learned treatise); or (2)
provide notice that we intend to take or are taking
administrative notice of the fact that the particular
nonexertional limitation(s) does not significantly erode
the occupational job base, and allow the claimant the
opportunity to respond before we deny the claim.
AR 01-1(3). 4
4

AR 01-1(3) further provides, “This Ruling does not apply to
claims where we rely on an SSR that includes a statement
explaining how the particular nonexertional limitation(s) under
14

Here, the ALJ determined Plaintiff’s RFC to be as follows:
The claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that she can frequently balance,
occasionally stoop, kneel, crouch, crawl and climb ramps or
stairs and never climb a ladder, rope or scaffold, and must
avoid even moderate exposure to fumes, odors, dusts, gases
and poor ventilation, and she is limited to simple,
repetitive work. She is capable of understanding,
remembering, and carrying out simple instructions, making
judgments that are commensurate with the functions of
unskilled work (i.e., simple work-related [d]ecisions),
responding appropriately to supervision, co-workers, the
general public and usual work situations, and dealing with
changes in a routine work setting.
(R. at 23.)

Based on this RFC, the ALJ concluded that Plaintiff

was capable of performing the exertional components of light
work, and that Plaintiff’s nonexertional limitations in her RFC
had “little or no effect on the occupational base of unskilled
light work.”

(Id. at 40.)

The ALJ explained,

Social Security Rulings 83-14 and 85-15 state that
sedentary and light work do not require more than
occasional stooping and bending and do not require any
crouching. Social Security Ruling 83-14 states that
inability to ascend or descend ladders or scaffolding is
not a significant restriction at any exertional level.
Social Security Ruling 85-15 states that restrictions
against climbing, balancing, unprotected elevations and
consideration in the claim being adjudicated affects a
claimant's occupational job base. When we rely on such an SSR
to support our finding that jobs exist in the national economy
that the claimant can do, we will include a citation to the SSR
in our determination or decision.” The ALJ here cites to SSR
85-15 and 84-13 and 96-9p, none of which supports the ALJ’s
decision specific to Plaintiff’s RFC.
15

proximity to dangerous moving machinery are not significant
at any exertional level. This ruling also states that
kneeling and crawling limitations do not have a significant
impact on the broad world of work. According to Social
Security Ruling 96-9p, the need to avoid even all exposure
to extreme cold, extreme heat, wetness, humidity,
vibration, or unusual hazards such as moving mechanical
parts of equipment, tools, or machinery ; electrical shock;
working in high, exposed places; exposure to radiation;
working with explosives; and exposure to toxic, caustic
chemicals would not result in significant erosion of the
sedentary occupational base. Thus, the sedentary and light
unskilled job base is only minimally affected by the
claimant's nonexertional limitations. There are many jobs
existing in significant numbers in the national economy
which the claimant is able to perform.
(Id.)
The problem with this assessment is two-fold.

First, the

ALJ does not mention the nonexertional limitation that Plaintiff
“avoid even moderate exposure to fumes, odors, dusts, gases and
poor ventilation” and its effect, standing alone, on the
sedentary and light unskilled job base.

SSR 85-15 specifically

singles out the environmental exposure restriction, and provides
that where “a person has a medical restriction to avoid
excessive amounts of noise, dust, etc., the impact on the broad
world of work would be minimal because most job environments do
not involve great noise, amounts of dust,” but where “an
individual can tolerate very little noise, dust, etc., the
impact on the ability to work would be considerable because very
few job environments are entirely free of irritants, pollutants,
16

and other potentially damaging conditions.”

SSR 85-15.

The

Program Policy Statement therefore directs that where “the
environmental restriction falls between very little and
excessive, resolution of the issue will generally require
consultation of occupational reference materials or the services
of a [Vocational Specialist].”

SSR 85-15.

If an ALJ “wishes to rely on an SSR as a replacement for a
vocational expert, it must be crystal-clear that the SSR is
probative as to the way in which the nonexertional limitations
impact the ability to work, and thus, the occupational base.”
Allen v. Barnhart, 417 F.3d 396, 407 (3d Cir. 2005).

Not only

is SSR 85-15 not probative as to the environment restrictions,
it compels the opposite result.
Second, the ALJ does not consider Plaintiff’s nonexertional
limitation to “avoid even moderate exposure to fumes, odors,
dusts, gases and poor ventilation” in combination with her
exertional limitations.

Where a claimant has exertional and

nonexertional impairments, testimony of a vocational expert or
other similar evidence, such as a learned treatise, in addition
to the Grids is required for the ALJ to meet his burden of
establishing that there are jobs in the national economy that
someone with the claimant's combination of impairments can

17

perform.

Sykes, 228 F.3d at 273; AR 01-3(3).

The ALJ failed to

provide additional evidence beyond the Grids to support his
conclusion that Plaintiff was capable of unskilled light work.
In steps one through four, the ALJ in this case has
appeared to have conducted a thorough analysis of the record
evidence and a thoughtful discussion of his findings relative to
that analysis.

It is perplexing why, in a case that presents

many nonexertional limitations, as well as the presence of a VE
at both hearings, the ALJ did not support his step five burden
with evidence in addition to the Grids as required by the Third
Circuit and explicitly directed to do so by the SSA in AR 011(3).

It seems possible that provided the proper hypothetical,

the VE would have testified that unskilled light work jobs that
do not expose a person to fumes, odors, dust, gases exist in
significant numbers in the national economy. 5

5

Nonetheless,

See, e.g., Rini v. Commissioner of Social Security, 2017 WL
2656017, at *4 (D.N.J. 2017) (the ALJ asking if there were jobs
in the national economy for an individual who was capable of the
full range of light or medium work, limited to unskilled work,
with the individual being off task up to ten percent of the time
and in which exposure to fumes, odors, and dusts must be
avoided, and the VE responding affirmatively and giving several
examples of viable jobs, including box maker (medium), bagger
(medium), ticket printer (light), and tagger (light)); Rivera v.
Commissioner of Social Security, 2016 WL 4718143, at *7 (D.N.J.
2016) (the ALJ posing the hypothetical assuming an individual
with Plaintiff's education, training and work experience, that
is “limited to the full range of light work, ... [and] simple,
18

because the ALJ failed to comply with the requirements set forth
in Sykes and AR 01-1(3), the Court must reverse the
Commissioner’s decision to deny Plaintiff’s claim, and remand
the matter so that the ALJ may employ the proper methodology in
the step five analysis.

We express no opinion on what

conclusion should or would be reached after the application of
the required methodology.
III. Conclusion
For the reasons expressed above, the ALJ erred in his
determination that Plaintiff was not totally disabled because
she is capable of performing jobs that exist in significant
numbers in the national economy.

Therefore, the Court will

reverse the decision of the Commissioner, and remand the matter
for further consideration consistent with this Opinion.
An accompanying Order will be issued.

Date: September 28, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

routine, repetitive unskilled tasks,” with “frequent postural
maneuvers,” who must avoid “concentrated exposure to fumes,
odors, dust and gasses,” and the VE testifying that jobs existed
in the national economy that this person could perform).
19