HUSSEY v. COMMISSIONER OF SOCIAL SECURITY
Filing
13
OPINION. Signed by Judge Renee Marie Bumb on 10/31/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
TIMOTHY W. HUSSEY,
Plaintiff,
Civil No. 17-1913 (RMB)
v.
OPINION
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
APPEARANCES:
CHERMOL & FISHMAN, LLC
By: Samuel Fishman, Esq.
11450 Bustleton Avenue
Philadelphia, Pennsylvania 19116
Counsel for Timothy W. Hussey
SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL
By: Dina White Griffin, Special Assistant United States Attorney
300 Spring Garden Street, 6th Floor
Philadelphia, Pennsylvania 19123
Counsel for Commissioner, Social Security
Administration
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon an appeal by
Plaintiff Timothy W. Hussey (the “Plaintiff”) of the final
determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security disability benefits. For the reasons set forth below,
the Court vacates the decision of the Administrative Law Judge
(the “ALJ”) and remands for proceedings consistent with this
Opinion.
I.
PROCEDURAL HISTORY
On December 6, 2013, Plaintiff filed an application for
disability insurance benefits, alleging disability since August
1, 2012 due to residuals from an earlier ankle injury.
Plaintiff’s claim was initially denied on March 25, 2014, and
again denied upon reconsideration on May 8, 2014.
[Record of
Proceedings (“R.P.”), p. 35-44]. At a formal hearing on August
19, 2016, the ALJ heard testimony from Plaintiff and his
attorney.
Following the formal hearing, the ALJ issued a decision on
September 21, 2016, which denied Plaintiff’s claim based on the
ALJ’s determination that Plaintiff did not suffer from a “severe
impairment or combination of impairments.” [R.P., p. 35-44]. The
Appeals Council denied Plaintiff’s request for review, thus
2
rendering the ALJ’s decision as final. [R.P., p. 1-4]. Plaintiff
now seeks this Court’s review.
II.
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),
1383(c)(3). “Substantial evidence” means “‘more than a mere
scintilla. 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
3
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, 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
4
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.
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).
III. FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its
determination on appeal, which is narrow.
From approximately
1981 through 2011, Plaintiff worked in construction as a
concrete finisher.
According to Plaintiff, this job involved
frequent lifting in excess of 50-100 pounds, as well as use of
heavy machinery, tools, and equipment. [Plaintiff’s Brief in
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Support of Complaint (“Pl’s. Br.”), p. 2].
Plaintiff alleges
that his prior job required him to stand or walk for most of the
eight-hour workday, and that he was also required to stoop,
kneel, crouch, crawl, and climb throughout the day. [Id.]
According to medical records, Plaintiff has suffered
fractures to both of his ankles; his left in 2006 and his right
in 2008.
[R.P., p. 319].
Plaintiff’s application for
disability benefits primarily concerns the residual impairments
caused by the fracture to Plaintiff’s right ankle, which
occurred in July 2008 at a construction site, when he was
carrying heavy materials while walking backwards and stepped
into a hole.
[Id.].
After two courses of physical therapy,
Plaintiff’s right ankle injury ultimately required surgery in
November 2008. [Id.].
Due to ankle pain, Plaintiff testified
that he could only stand for “[m]aybe 10 minutes, 15 minutes” or
walk for “maybe five minutes” by August of 2012 [R.P., p. 6465].
While receiving injections and other treatment for his
ankle, Plaintiff continued to work as a concrete finisher into
2011. [R.P., p. 53-54].
Plaintiff testified that his ankle
injury eventually prevented him from performing key aspects of
his work, such as standing, walking, and climbing ladders and
scaffolding while carrying his tools. [R.P., p. 64-65].
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Specifically, Plaintiff testified that, in August 2012, his
employer “let [him] know at the end of the day [he] was done,”
after Plaintiff was unable to climb scaffolding and ladders on
the job site. [Id.].
Plaintiff has been briefly employed in two different
positions since 2012.
First, Plaintiff testified that he worked
for three months for “Dry Guys,” a basement waterproofing
company.
However, Plaintiff stated that, after he completed
training, he was physically unable to perform the work on the
job sites.
[R.P., p. 58]. Second, Plaintiff testified that he
was hired on a trial-basis for a clerical position at a friend’s
pallet company, “Poor Boy Pallet.” [R.P., p. 56-58]. In this
role, Plaintiff received accommodations so that he would not
need to be on his feet throughout the day, but was told that he
would be laid off after only four months of work because he
could not perform all of the physical and mental aspects of the
job. [Id.]. At his hearing, Plaintiff testified that he
continues to drive, shop for groceries, cook food, and mow his
lawn. [R.P., p. 39].
However, Plaintiff stated that these
activities cause him discomfort and he needs to elevate his legs
and rest afterwards. [R.P., p. 64].
Plaintiff’s medical records reflect that he has complained
of chronic pain in his right ankle since his injury and that he
has also been treated for pitting edema in both legs and plantar
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fasciitis in his left foot. [R.P., p. 61-63]. Plaintiff is also
obese, with his medical records indicating that his weight
fluctuates between 265 and 295 pounds. [R.P., p. 44]. In a foot
and ankle residual functional capacity questionnaire dated July
12, 2016, Dr. Wen Chao limited Plaintiff to standing for 30
minutes at one time or 2 hours in a workday, climbing a few
steps at a time, and noted that Plaintiff would occasionally
have to elevate his legs during an 8-hour workday. [R.P., p.
43].
IV.
DISCUSSION
At step one of the sequential evaluation process, the ALJ
found that Plaintiff had not engaged in substantial gainful
activity since August 1, 2012, the alleged onset date.
However,
at step two, the ALJ concluded that Plaintiff’s ankle injuries
were not “severe” impairments.
Because the ALJ found that
Plaintiff did not have an impairment or combination of
impairments that significantly limited (or was expected to
significantly limit) his ability to perform work for twelve
consecutive months, the ALJ concluded his analysis at step two
and reached a determination that Plaintiff was not disabled
under 20 C.F.R. § 404.1520(c). [R.P., p. 44].
As noted by Plaintiff, the Third Circuit states that “[t]he
burden placed on an applicant at step two is not an exacting
one.” McCrea v. Commissioner of Social Security, 370 F.3d 357,
8
360 (3d Cir. 2004).
For this reason, “step two is to be rarely
utilized as basis for the denial of benefits,” and “its
invocation is certain to raise a judicial eyebrow,” Id. at 361.
Given the lenient burden at step two, the Third Circuit
instructs that the “step-two inquiry is a de minimis screening
device to dispose of groundless claims.”
Id. at 360.
As such,
“the Commissioner's determination to deny an applicant's request
for benefits at step two should be reviewed with close
scrutiny.”
Id. at 361.
A reviewing court should not, however,
“apply a more stringent standard of review in these cases” - a
“denial at step two, like one made at any other step in the
sequential analysis, is to be upheld if supported by substantial
evidence on the record as a whole.”
Id.
In his decision, the ALJ found that the medical evidence
did not demonstrate that Plaintiff had a severe impairment that
significantly limited Plaintiff’s ability to perform basic work
activities. [R.P., p. 44].
Although the ALJ found that
Plaintiff’s medically determinable impairment “could reasonably
be expected to produce the alleged symptoms,” the ALJ held that
Plaintiff’s statements concerning the intensity, persistence and
limiting effects of these symptoms were “not entirely consistent
with the medical evidence and other evidence in the record.”
[R.P., p. 43].
In reaching this conclusion, the ALJ relied upon
various medical opinions that described Plaintiff’s impairments
9
as “non-severe” and prescribed only mild functional limitations,
as well as gaps between the dates on which Plaintiff sought
treatment. [Id.].
Significantly, the ALJ also found that Plaintiff’s brief
stints of work for Dry Guys and Poor Boy Pallet were “evidence
of the claimant’s ability to perform basic work activities,”
even though those jobs did not amount to “substantial gainful
activity.” [R.P., p. 37].
On appeal, Plaintiff argues that the ALJ committed a
reversible legal error at step two by failing to consider
whether Plaintiff’s medical impairments precluded him from
performing his “past relevant work” as a concrete finisher.
[Pl’s. Br., p. 1]. In support of this argument, Plaintiff cites
a Social Security Ruling directly addressing this issue:
If the medical evidence establishes only a slight
abnormality(ies) which has not more than a minimal
effect on a claimant's ability to do basic work
activities, but evidence shows that the person cannot
perform his or her past relevant work because of the
unique features of that work, a denial at the “not
severe” step of the sequential evaluation process is
inappropriate. The inability to perform past relevant
work in such instances warrants further evaluation of
the individual's ability to do other work considering
age, education and work experience.
Great care should be exercised in applying the not
severe impairment concept. If an adjudicator is unable
to determine clearly the effect of an impairment or
combination of impairments on the individual's ability
to do basic work activities, the sequential evaluation
process should not end with the severe evaluation
step.
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SSR 85–28, 1985 WL 56856, at *4.
Plaintiff correctly asserts, on the basis of SSR 85-28,
that the ALJ should have evaluated his ability to perform his
“past relevant work” as a concrete finisher at step two, even
though the ALJ found that Plaintiff could perform “basic work
activities.”
Although the ALJ’s decision addresses the credibility of
Plaintiff’s claim that he was unable to physically and mentally
perform his clerical job at the pallet company,1 the decision
does not meaningfully discuss Plaintiff’s ability to perform his
past work activities as a concrete finisher.2 The Commissioner
defines “past relevant work” as “work that [claimant] has done
within the past 15 years, that was substantial gainful activity,
and that lasted long enough for [claimant] to learn to do it.”
See 20 C.F.R. § 404.1560(b)(2).
Because the ALJ determined that
Plaintiff’s work for Dry Guys and Poor Boy Pallet did not amount
to substantial gainful employment, the relevant inquiry should
1
The ALJ discredited Plaintiff’s argument that he was unable
physically or mentally to perform the clerical work at Poor Boy
Pallet, finding that “[t]here is no proof of any mental
impairment or limitations and… [t]he claimant presented no
evidence of either accommodation or pending layoff.” [R.P., p.
43]. The ALJ did not discuss Plaintiff’s ability to perform the
work for Dry Guys.
2
The ALJ notes that as of November 15, 2011, Plaintiff was
“still considered capable of working.” [R.P., p. 39-40].
However, the referenced report was based on an examination
before Plaintiff’s alleged onset date.
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have focused on Plaintiff’s ability to perform his duties as a
concrete finisher.
Given the unique physical requirements of Plaintiff’s job
as a concrete finisher and his medically documented impairments,
there is evidence in the record that suggests that Plaintiff may
not be able to perform past relevant work.
Plaintiff describes
physically strenuous elements of his prior job as a concrete
finisher, such as standing for nearly the entire eight-hour
workday, frequently carrying heavy equipment, and climbing
ladders and scaffolding. [Pl’s. Br., p. 2]. As noted in the
ALJ’s decision, in a July 2016 functional capacity
questionnaire, Dr. Wen Chao limited Plaintiff to standing for 30
minutes at a time or 2 hours in a workday.
[R.P., p. 43].
Dr.
Chao stated that Plaintiff could climb “a few steps” at a
“reasonable pace,” but also noted that he would need to elevate
his legs during the workday. [Id.].
Dr. Chao did not indicate
the duration of these limitations, but the ALJ could have sought
clarification from Dr. Chao or referred Plaintiff for additional
medical examination.
This Court does not express an opinion as to whether
Plaintiff’s impairments are severe, as defined under 20 C.F.R. §
404.1520(c), but finds that the ALJ committed a reversible legal
error in failing to consider Plaintiff’s ability to perform his
past relevant work.
Because of the ALJ’s failure to consider
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this issue, the record regarding Plaintiff’s ability to perform
his past relevant work is underdeveloped.
On remand, the ALJ
must evaluate Plaintiff’s application at step two under the
framework set forth in SSR 85-28 and fully develop the record
regarding Plaintiff’s ability to perform his past relevant work.
V.
CONCLUSION
For the reasons set forth above, the Court vacates the
ALJ’s decision and remands for proceedings consistent with this
Opinion.
An appropriate Order shall issue on this date.
DATED: October 31, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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