MARTELLI v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
MEMORANDUM OPINION AND ORDER vacating the decision of the administrative law judge and remanding this case for further proceedings. Directing the Clerk to close this case. Signed by Judge Renee Marie Bumb on 10/29/2018. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DANIEL A. MARTELLI,
Civil No. 17-2950 (RMB)
Plaintiff,
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 Daniel Martelli from a denial of social security
disability benefits on October 5, 2015, which was upheld by the
Appeals Council on February 23, 2017. [Record of Proceedings,
“R.P.”, p. 1-5]
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
1
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).
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,
2
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
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.
3
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 1987, and was 19 years old at the
alleged onset date. [R.P., p. 97]
He applied for Social Security
Disability Benefits on January 1, 2013, alleging an onset of
disability of January 1, 2007. [R.P., p. 106-07] 1
A disability hearing was held on August 3, 2015.
The ALJ
heard testimony from three witnesses: Plaintiff, Plaintiff’s
mother, and the Vocational Expert.
A.
Plaintiff’s impairments
At the disability hearing, Plaintiff testified that he
primarily suffers from Obsessive Compulsive Disorder (“OCD”), and
1
At the disability hearing Plaintiff amended the alleged onset
date to January 1, 2013. [R.P., p. 47]
4
associated social anxiety.
[R.P. p. 57, 67] 2
Plaintiff testified
that it takes him “quite a bit longer” to “complete” rather basic
“tasks” because his OCD “causes . . . ruminations . . . that
interrupt [his] train of thought and [his] concentration.”
p. 57, 68-69]
[R.P.,
He further testified that his OCD also causes him
to perform “rituals” such as head nodding and eye blinking. [R.P.,
p. 65, 66] 3
The rituals and ruminations, Plaintiff testified, are
“physically exhausting” to the point where “three to four times
per week [he] feel[s] that he need[s] to take a nap . . . that’s
about two to three hours long.”
[R.P., p. 71] 4
These symptoms-- the ruminations, rituals, and the exhaustion
that results-- Plaintiff and his mother testified, very
significantly slow the pace at which Plaintiff can perform a
2
Plaintiff’s medical history also includes Lyme disease infection
in 2005, and epileptic seizures which occurred sporadically
between 2005 and 2007. [R.P., p. 67] However, Plaintiff
testified that he has been “seizure free since February 2007. And
on a day-to-day basis [he] do[es] not have any physical
limitations due to Lyme disease.” [Id.] The ALJ found that
Plaintiff’s “seizure disorder is not severe” [R.P., p. 25], and
Plaintiff does not challenge this finding on appeal.
3
Plaintiff’s mother testified that Plaintiff also “has a lot of
rituals of checking, always checking,” “did I do that right? Or do
I understand that right?” [R.P., p. 75] Plaintiff explained, “I
will seek a lot of reassurance . . . you know, ‘Was it okay that I
did this, or was my word choice okay, was I polite to that
person.’ And those questions typically go all day.” [R.P., p. 7172]
4
Plaintiff’s mother similarly testified that Plaintiff’s OCD
“just seems to take a lot out of him.” [R.P., p. 78]
5
variety of tasks.
For example, it takes Plaintiff two hours to
mow the lawn, but it takes his father “less than an hour” to mow
the same lawn.
[R.P., p. 58]
Plaintiff’s mother, with whom
Plaintiff lives, testified that “it takes him very long to, say
eat a meal or get ready for the day 5. . . . It could take him like
20 minutes to just pick [something] up [in his room] or just pull
up the covers or even to go get a shower.
It’s a good 40 minutes
to shave, a good 45 minutes.” 6
Plaintiff testified that his OCD affects his pace more
severely when he performs tasks requiring greater “concentration
and critical thinking.”
[R.P., p. 69]
In this regard, Plaintiff
testified that he could only manage a 50% class load each semester
in college because reading is his biggest challenge.
59-60]
[R.P., p.
According to Plaintiff, “taking two courses with []
obsessive compulsive disorder . . . requires the same amount of
effort as five courses once did.” [R.P., p. 64]
In response to
the question, “[w]hen you’re working in a group setting, has your
pace ever been a problem with group assignments?”, Plaintiff
answered, “if I am in a meeting with [a] group, yes, it is.
I
5
Plaintiff testified it takes him “about 45 minutes” to eat
breakfast and “about 40 minutes” to “shower and put on [his]
clothes.” [R.P., p. 69]
6
Plaintiff’s mother also testified that she can fold towels four
or five times faster than Plaintiff. [R.P., p. 77] However,
Plaintiff testified that he folds towels in “about the same time
that it takes [his mother] to do it.” [R.P., p. 59]
6
certainly-- it is difficult for me to maintain a pace with them.”
[R.P., p. 72-73]
Lastly, Plaintiff testified that he has
“routinely” taken “five to six hours” to complete tests which his
classmates were expected to finish in 75 minutes [R.P., p. 58],
and that it takes him about 30 minutes to read a single textbook
page, or about 15 hours to read an average textbook chapter.
[R.P., p. 64]
To treat his alleged disabilities, Plaintiff has been in
psychotherapy with Dr. Hicks since 2007, and has received
cognitive behavioral therapy from Dr. Newman since 2009.
66]
[R.P. p.
The doctors’ records-- which reflect diagnoses of OCD and
social anxiety disorder-- are discussed at length in the ALJ’s
decision. [see R.P., p. 32-37]
They are consistent with the
testimony concerning Plaintiff’s ruminations and rituals, and
reflect an “extraordinarily slow reading rate,” with executive
functioning test results in the first percentile for both reading
comprehension and reading rate.
B.
[R.P., p. 30, 36]
Vocational Expert’s Testimony
The Vocational Expert testified that a hypothetical
individual with Plaintiff’s age and education, with limitations of
no “work at a rapid production rate pace” and “only occasional
reading,” could perform the work of a “hand packager,” a
“furniture assembler,” and a “routing clerk.”
[R.P., p. 80-81]
The Vocational Expert also testified that the hypothetical
7
individual could sustain such jobs even if he could only sustain
focus, concentration, and attention for two hours at a time and
then required a rest break of five minutes.
III.
[R.P., p. 83-84]
ALJ’S DETERMINATION
The ALJ concluded that “the claimant has not been under a
disability as defined in the Social Security Act since January 3,
2013.” [R.P., p. 38]
Relevant to the issues presented on appeal,
the ALJ found that “the claimant has the residual functional
capacity to perform a full range of work at all exertional levels
but with the following nonexertional limitations: the claimant
cannot work at a rapid production rate pace . . . and can only . .
. sustain focus, concentration, and attention for 2 hours and then
requires a rest break of 5 minutes.”
[R.P., p. 30]
However, the ALJ also found “that the claimant has a marked
level of limitation in concentration, persistence or pace. . . .
The claimant’s deficits in this category arise from his
difficulties with pace as demonstrated throughout his longitudinal
medical history.
In addition, deficits in attention, stress and
changes in routine all combine to result in a marked limitation in
this category.”
IV.
[R.P., p. 29]
ANALYSIS
Plaintiff argues that the ALJ’s residual functional capacity
determination is not supported by substantial evidence because the
8
ALJ’s finding that Plaintiff can perform all but “rapid production
rate pace jobs,” so long as 5-minute rest breaks are given every
two hours, is irreconcilably inconsistent with the ALJ’s finding
that Plaintiff has marked “difficulties with pace as demonstrated
throughout his longitudinal medical history. . . . [and] deficits
in attention, stress and changes in routine.”
[R.P., p. 29]
Plaintiff explains, the RFC “does not restrict ordinary production
pace jobs, only those that are particularly ‘rapid’ in nature.”
[Dkt #7, p. 15]
Plaintiff attributes this asserted error to the
ALJ’s failure to adequately incorporate Plaintiff’s pace deficits
into the hypothetical posed to the Vocational Expert at the
disability hearing.
In support of this argument, Plaintiff relies upon Ramirez v.
Barnhart, 372 F.3d 546 (3d Cir. 2004), which held that the ALJ’s
decision was not supported by substantial evidence because the
hypothetical posed to the Vocational Expert did not take into
account deficiencies in claimant’s pace.
In Ramirez, the
vocational expert concluded that the claimant could perform the
jobs of assembler, hand packer, and production inspector.
F.3d at 549.
372
The Third Circuit explained, however, that the
vocational expert “may have changed her answer” if the ALJ’s
hypothetical had included a limitation consistent with the ALJ’s
own finding that the claimant often suffered from deficiencies in
concentration, persistence or pace.
9
Id. at 554.
The Court
reasoned, “[m]any employers require a certain output level from
their employees over a given amount of time, and an individual
with deficiencies in pace might be able to perform simple tasks,
but not over an extended period of time.”
Id.
The Commissioner responds that this case is distinguishable
from Ramirez insofar as unlike the ALJ’s hypothetical in Ramirez,
which did not include any limitation at all related to pace, the
ALJ in this case did include a pace limitation: the ALJ instructed
the Vocational Expert to “assume that [the hypothetical]
individual is limited such that they cannot work at a rapid
production rate pace.”
[R.P., p. 80]
Plaintiff replies that “[h]ere the ALJ . . . simply
eliminated particularly ‘rapid’ production pace jobs, leaving
intact, and unrestricted, normal production pace, which is
equivalent to no limitation in this area.”
[Dkt #11, p. 5]
The Court cannot determine on this record whether, consistent
with the teaching of Ramirez, the ALJ adequately incorporated her
own findings concerning Plaintiff’s marked pace deficits in the
hypothetical she posed to the Vocational Expert.
The ALJ found
“that the claimant has a marked level of limitation in . . . pace”
[R.P., p. 29], yet the hypothetical provided to the Vocational
Expert only excluded rapid production pace jobs.
The Court cannot
discern how this limitation squares with the record evidence that
Plaintiff cannot perform daily tasks of living-- such as shaving-10
at a typical rate.
Perhaps the ALJ found Plaintiff’s evidence in
this regard not credible, or exaggerated, however, if this is so,
the ALJ did not articulate such a finding anywhere in her
decision, nor any reasoning supporting such a finding.
Rather,
the ALJ simply stated, in conclusory fashion, “I find . . . the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible.”
[R.P., p. 31] 7
“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 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
7
Considering the limit on reading that was incorporated into the
hypothetical, perhaps the ALJ believed that Plaintiff’s OCD
symptoms significantly interfered with higher level thinking tasks
such as reading, but did not significantly interfere with simpler
tasks such as folding towels. Had the ALJ articulated this
distinction, and supported such a distinction with record evidence
or credibility determinations, a different result might obtain in
this case.
11
supported by substantial evidence because it presently lacks the
requisite access to the ALJ’s reasoning concerning why the
hypothetical posed to the Vocational Expert excluded only rapid
paced production rates.
It may well be the case that, upon remand,
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.
ACCORDINGLY, it is on this 29th day of October, 2018,
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.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?