ZUSCHLAG v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Joseph H. Rodriguez on 9/15/2020. (rtm, )

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
:
SHARON ZUSCHLAG,
:
:
Hon. Joseph H. Rodriguez
Plaintiff,
:
:
Civil Action No. 18-cv-1949
v.
:
:
COMMISSIONER OF THE
:
SOCIAL SECURITY
:
OPINION
ADMINISTRATION,
:
:
Defendant.
:
This matter comes before the Court upon an appeal by Plaintiff Sharon H.
Zuschlag (hereinafter, “Plaintiff” or “Zuschlag”) of the final determination of the
Commissioner of the Social Security Administration’s (hereinafter, “Defendant” or “the
Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Title II and Title XVI of the Social Security
Act (“SSA”) for the period between October 12, 2014 to January 25, 2013, pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). 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.

BACKGROUND

The Court recites only the facts that are necessary to its determination on appeal,
which is narrow. 1

1

Plaintiff’s medical history is extensive, and the record in this case is voluminous. Since this Court decides
this matter on a narrow basis, namely whether the ALJ erred in its determinations and denial of benefits
to Plaintiff, a detailed recitation of such history is not necessary here.

1

a. Procedural History
On January 25, 2013, Plaintiff filed an application for disability insurance (“DIB”)
and SSI benefits, alleging a disability onset date of October 14, 2012. (AR 103). Her
application was denied on July 23, 2013. (Id. at 89). Plaintiff then filed a Request for
Reconsideration, which was timely submitted on July 26, 2013. (Id. at 145-150). The
claim was denied again on March 3, 2014. (Id. at 105-117). On April 24, 2014, Zuschlag
requested a hearing before an ALJ. (Id. at 160-164). Plaintiff appeared for a hearing in
the Pennsauken, NJ office before the Honorable Marguerite Toland, ALJ, on May 12,
2016. (Id. at 43-78). On November 23, 2016, The ALJ issued an Unfavorable decision
denying benefits to Plaintiff. (Id. at 12-43).
Plaintiff then filed a Request for Review of Hearing Decision with the Appeals
Council on February 6, 2017. (Id. at 212-214). The Council issued an Order, dated
January 4, 2018, denying the Request for Review. (Id. at 1). Plaintiff then commenced
the present action, requesting judicial review pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). [Dkt. No. 9 p. 1].
b. Brief Factual Background
Plaintiff, Sharon Zuschlag, was born on July 26, 1972. (A.R. 35). Zuschlag was 40
years old on the alleged disability onset date (“AOD”) of October 14, 2012. (Id. at 35). At
the time of her hearing before the ALJ, Plaintiff was 43 years old, which is classified as a
“younger person” under the Commissioner’s regulations. [Pl. Br. P. 2]. She attests to last
working on October 14, 2012 (A.R. 25). Plaintiff has a high school level education having
earned a General Equivalency Degree (GED). (Id.). She was not enrolled in special
education classes while she was in school. (Id.). Her relevant work history includes time
as a cashier and a server and a brief enrollment in cosmetology school. (Id.).
2

Zuschlag currently suffers from a number of impairments, both physical and
mental, which include: depressive disorder, anxiety disorder, degenerative disc disease
of the cervical and lumbar spine, obesity, Baker’s cyst, arthritis of the right knee,
rheumatoid arthritis, inflammatory arthritis, fibromyalgia, migraines and hand deficits
with pain along with their associated functional limitations. [Pl. Br. p. 2]. Plaintiff first
saw a rheumatologist in 2012 when she began the onset of neck and back pain. (A.R.
55). She testified to diagnoses of fibromyalgia and rheumatoid arthritis, the severity of
which was contested by the ALJ during Plaintiff’s hearing. (Id. at 56; 17). Plaintiff
described her various pains as “sharp, shooting, stabbing, and sometimes I would get a
burning, tingling.” (Id. at 60). She testified that she “rated her pain as an 8/10, even
with medication.” (Id.). Plaintiff takes medication to help alleviate the pain, but contests
that it is not always effective, and causes her to experience several negative side-effects.
(Id. at 58).
According to her Adult Function Report filed on February 10, 2013, (A.R. 265273), Plaintiff explained that she was in constant pain, and “needed the help of her
husband to take care of their then-3-year-old daughter.” (Id. at 266-267). She also
experiences difficulty sleeping, “reaching to dress, care for her hair, or wipe herself after
using the toilet.” (Id. at 267). In addition, she expressed difficulty with bending,
standing, reaching, kneeling, memory, concentration and completing tasks. (Id. at 270271). Plaintiff agreed that she was able to “walk, stand, or sit for a half hour, and bend
her knees ‘for a second.’” (Id. at 271). As for her endurance, Plaintiff alleged that she
“thought she could walk 200 feet before having to rest for five minutes.” (Id.). For these
reasons, Plaintiff testified that needs help performing household chores, and that she
could only attempt chores for ten minutes before needing a break and is unable to lift
3

items in excess of five pounds. (Id. at 62, 268; 270). Further, she is only able to cook in
20-minute increments, with aid. (Id. at 268). She testified that her boyfriend, sister, and
daughter all help take care of her at home. (Id. at 63). Plaintiff is also unable to crochet
as frequently as she would like due to pain in her hands, which was a hobby of hers prior
to the alleged disability onset date. (Id. at 270).
Plaintiff argues on appeal that the ALJ erred by (1) formulating an RFC that is
incompatible with the totality of the testimony of the Vocational Expert; (2) failing to
find Plaintiff’s fibromyalgia to be a severe impairment, and compounding that error by
failing to include limitations secondary to Plaintiff’s fibromyalgia in the RFC; and (3)
misevaluating the treating source opinion and the functional capacity evaluation. [Dkt.
No. 9]. This court will consider the validity of these claims in the context of the
testimony provided below.
c. Testimony of Vocational Expert
At Plaintiff’s hearing, the ALJ allowed testimony from an independent vocational
expert, James H. Earhart (hereinafter “Mr. Earhart” or “Earhart”), to better assess her
capacity for employment. (A.R. 69). Mr. Earhart testified to Plaintiff’s ability to perform
her past relevant work, as well as calculate alternative positions that aligned with her
limitations. (Id. at 69-76). He provided a description of Plaintiff’s past relevant work
history derived from the Dictionary of Occupational Titles (“DOT”), focusing on her jobs
as waitress, gas and oil servicer, self-service attendant, and cashier clerk. (Id. at 70-71).
During his interview with the ALJ, Earhart testified as follows:
Q Please assume this individual can perform sedentary work as defined
under the DOT. This individual can sit up to six hours per day, but no
more than one hour at a time. She would need to stand and/or shift
positions for up to five minutes every hour, while remaining on-task…This
individual would be limited to low-stress work and I’ll define that as
4

routine work, having no fast production rate pace or strict production
quotas. And the low stress work would also be unskilled in nature. Based
on those limitations, could this individual perform any of Claimant’s past
work?
...
A No.
...
Q And are there other jobs within that hypothetical that this individual
could perform?
...
A Yes, I think so. I think that would allow for, for example, order clerk,
DOT Code: 209.567-014, unskilled, sedentary work, SVP: 2, there exists
about 200,000 in the national economy, I would suggest cashier, parking
lot, 211.462-010…Unskilled, SVP: 2, about 220,000 in the national
economy. Charge account clerk, 205.367-014, about 10,000 in the national
economy.
...
Q Okay. Thank you. And Mr. Earhart, what would be the employers [sic]
tolerance for being off-task at those two [sic] jobs?
...
A Now that’s based on my experience, not based on the Dictionary or
their associate, but in my experience, any more than 15 percent in addition
to normal breaks is preclusive of competitive employment.
...
Q Okay, so if the individual was off-task, let’s say, 10 percent of the
workday, he or she could still perform those three jobs, but if they were
routinely off-task, let’s say 16 to 20 percent of the day, they couldn’t
perform any of those jobs?
...
A That’s correct, Your Honor. That’s my opinion, again.
(Id. at 71-72). Mr. Earhart was then questioned by Plaintiff’s attorney, during
which he testified:
Q ...you stated that 15 percent was the threshold, so to speak, for being
off-task. If an individual were off task less than that 15 percent, you know,
five or ten percent, but for that period of time, they were abandoning their
workstation, would that have an effect on their ability to maintain
employment?
...
A Yes, I think, yes, I think that would, abandoning your workstation for a
moment, five minutes, give me some quantity, quality.
...
Q Well let’s start with 10 percent, so that would be six minutes out of
every hour.
...
5

A No, that wouldn’t be tolerated.
...
Q Okay. And five percent would be roughly three minutes out of every
hour.
...
A No, walking away from your workstation is different than being off-task,
I think. No that’s, I should point out that’s not in the Dictionary.
...
Q Okay. Along those same lines, well let me ask this first, what breaks
would, or are unskilled workers typically allotted during the day?
...
A Again in my experience, the, there’s five breaks. Three regularly
scheduled coffee, meal breaks and then two other, more flexible bathroom
breaks.
...
Q Okay, and how long are those breaks typically?
...
A Fifteen, fifteen, 30 and 10, 10.
...
Q …So if an individual needed an additional say 20-minute break, would
that have an effect on that?
...
A Yeah, that’s difficult for competitive employment. But yeah.
...
Q Now if an individual were only able to sit for say 10 to 15 minutes and
then would have to stand and shift positions for another five minutes.
Would that have any effect on the ability to do those jobs?
...
A It, the jobs that I tried to identify, we’re talking about assisting out from
jump, I think you can do those jobs whether you’re sitting or standing.
(Id. at 74-76).
d. The 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 the Plaintiff has not
engaged in substantial gainful activity since October 14, 2o12, the alleged onset date. (Id.
at 17). Next, at Step 2, the ALJ found that Plaintiff had the following severe
impairments: depressive disorder, anxiety disorder, degenerative disc disease of the
cervical and lumbar spine, obesity, Baker’s cyst and arthritis of the right knee. (Id.). At
6

the Third Step, the ALJ determined that the 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 CFR Part 404, Subpart P, Appendix 1. (Id. at 19). The ALJ then
moved on to Step 4 of the analysis, and determined that Plaintiff has the RFC to
perform:
[A] full range of sedentary work as defined in the Dictionary of
Occupational Titles and in 20 CFR 404.1567(a) and 416.967(a), except the
claimant would be able to sit for up to six hours in an 8-hour day, but no
more than one hour at a time. She would need to stand/shift positions for
up to 5 minutes every hour while remaining on task. The claimant can
occasionally stoop and do overhead lifting and reaching. She can
frequently handle. The claimant would be limited to low stress work,
defined as unskilled, routine work, with no fast production rate pace or
strict production quotas. She would be off-task no more than 10 percent of
the workday due to her symptoms, in addition to normal breaks.
(Id. at 22). In making these findings, the ALJ looked to the Plaintiff’s testimony, the
Adult Function Report completed by Plaintiff, and the objective medical evidence and
other evidence in accordance with the requirements of 20 CFR 404.1529 and 416.929
and SSR 96-4p. (Id.). The ALJ also considered opinion evidence in accordance with the
requirements of 20 CRR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 063p. 2 (Id.).

2

The ALJ specifically referenced: Plaintiff’s “Disability Report-Adult” questionnaire; Plaintiff’s “Function
Report-Adult” questionnaire dated February 10, 2013; a subsequent “Function Report-Adult”
questionnaire completed on December 6, 2013; a “Disability Report-Appeals” questionnaire submitted on
July 30, 2013; diagnostic studies including an M RI of Plaintiff’s cervical spine, conducted on October 4,
2012, an MRI of Plaintiff’s lumbar spine conducted on April 18, 2014, another MRI of Plaintiff’s lumbar
spine on November 2, 2015, an EMG/nerve conduction study of August 29, 2013, an EMG study of
Plaintiff’s right leg conducted on October 18, 2013, and x-rays of Plaintiff’s right knee; an office treatment
record from Southern Jersey Family Medical Centers Inc. and a follow-up with Dr. Asha Vijayakumar on
November 26, 2013; an emergency room record of January 8, 2013; subsequent treatment record from
Southern Jersey Family Medical Centers Inc. on February 15, 2013; pain management treatment with Dr.
Niti Cooper; an orthopedic consultative examination with Dr. Serna M. Satcher on June 10, 2013;
EMG/nerve conduction studies with Dr. Merrick J. Wetzier on October 31, 2013; an examination at Virtua
Pain & Spine on October 3, 2013 with D. Benjamin J. Duckles; a review of an additional MRI by Dr.
Jonathan Bussey with Copper [sic] Neurological Institute on December 23, 2013; neurological follow-up

7

The ALJ concluded that Plaintiff was unable to perform any past relevant work.
(Id. at 34). This determination was based largely on the testimony provided by Mr.
Earhart, the VE, who indicated that Plaintiff had past work as a waitress, which is semiskilled, light work with an Specific Vocational Preparation (SVP) of 3; gas and oil
servicer, which is unskilled, medium work with an SVP of 2; and self-service attendant
which is unskilled, light work with an SVP of 2. (Id. at 34-35). The ALJ further
determined that Plaintiff had an assessed residual functional capacity for unskilled,
sedentary jobs, which, based on the testimony of the VE, is incompatible with her past
relevant work, which involved at least light work. 3 (Id. at 35). Therefore, based on the
testimony and evidence considered, the ALJ determined that Plaintiff was unable to
engage in her past relevant work. (Id.).
The ALJ then provided, alternatively, that transferability of job skills is not
material to the determination of disability, since the final determination is made using
the Medical-Vocational Rules as a framework. (Id.). Under this framework, the ALJ
concluded that based on a consideration of Plaintiff’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant numbers in the

examinations on November 29, 2013 by Dr. Andrew J. McGarry and on February 12, 2014 with Dr. Neil
M. Masangkay; a consultation for joint pain on April 16, 2014 with Dr. Joshua B. Sundhar; consultation
with pain specialist Dr. Morris Antebi on January 20, 2015; examinations at the North American Spine
Center on May 19, 2015 through April 20, 2016; multiple assessments conducted by Plaintiff’s primary
care physician, Dr. Maynard Holgado; psychiatric assessments concerning Plaintiff’s mental impairments
by Dr. J. Theodore Brown; a functional capacity evaluation conducted on June 2, 2015 by Mr. Chris
Mammola; and “Functional Report Adult-Third Party” questionnaires completed on February 14, 2013
and August 11, 2013 by Mr. Bruce S. Diller, boyfriend of Plaintiff and a questionnaire completed on
August 10, 2013 by Ms. Karen Snyder, sister of Plaintiff. (Id. at 23-34).
3

The ALJ then sets forth Mr. Earhart’s testimony regarding the job positions that the hypothetical
individual could perform with corresponding DOT codes, as well as the prevalence in which they exist in
the national economy. (Id. at 36-37).

8

national economy that Plaintiff can perform. (Id.). Thus, the ALJ denied Plaintiff’s
application under a finding of “not disabled.” (Id. at 37).
II.

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); See Jenkins v. Comm'r of Soc. Sec., 192 F. App'x 113, 114 (3d Cir. 2006)
(citing Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999)). The Act further states that:
an 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 Act defines “work which exists in the national economy”
to mean “work which exists in significant numbers either in the region where such
individual lives or in several regions of the country.” Id.
The Commissioner employs a five-step procedure set forth by the Social Security
Administration in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4) to evaluate a
claimant’s disability. Hess v. Comm'r Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); see also
Plummer, 186 F.3d at 428. The burden of proof is on the claimant at all steps except
step five, where the burden is on the Commissioner. Hess v. Comm'r Soc. Sec., 931 F.3d
at 201 (citing Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010).
9

At Step 1, the Commissioner determines whether the claimant is currently
engaging in “substantial gainful activity.” Hess v. Comm’r Soc. Sec., 931 F.3d at 201.
(citing 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i)); see also Plummer, 186 F.3d at
428. If so, the disability claim will be denied. Id. see also Bowen v. Yuckert, 482 U.S.
137, 140 (1987). Otherwise, the ALJ moves on to step two.
Step 2 requires the Commissioner to consider whether the claimant is suffering
from a “severe medically determinable physical impairment” that meets certain
regulatory requirements. Hess v. Comm'r Soc. Sec., 931 F.3d at 201 (citing 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii)). According to the Act, a “severe impairment” is
one that “significantly limits [the claimant’s] physical or mental ability to do basic work
activities[.]” Id. §§ 404.1520(c), 416.920(c). If the claimant fails to make this showing,
her claim will be denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has
such an impairment, the ALJ moves on to step three.
At Step 3, the Commissioner “decides whether the claimant’s impairments meet
or equal the requirements of an impairment listed in the regulations[.]” Id. (citing
Smith, 631 F.3d at 634). If the claimant’s impairments do, she is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If they do not, the ALJ moves on to steps four
and five.
At Step 4, the Commissioner considers whether the claimant possesses the
“residual functional capacity” (“RFC”) to perform her past relevant work. Id. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). The plaintiff bears the burden of proving her
inability to return to her past relevant work. Id. Step Four includes the following three
sub steps:
10

(I) “the ALJ must make specific findings of fact as to the claimant's
residual functional capacity”; (ii) “the ALJ must make findings of the
physical and mental demands of the claimant's past relevant work”; and
(iii) “the ALJ must compare the residual functional capacity to perform
past relevant work to determine whether the claimant has the level of
capability needed to perform the past relevant work.”
Jenkins v. Comm'r of Soc. Sec., 192 F. App'x at 115 (citing Burnett v. Comm’r of Soc. Sec.
Admin., 220 F.3d 112, 120 (3d Cir. 2000)). If the claimant meets the burden of proof,
the burden shifts to the Commissioner for the fifth step. Id.
At Step 5, the Commissioner examines whether the claimant “can make an
adjustment to other work[,]” considering her “[RFC,] ... age, education, and work
experience[.]” Hess v. Comm’r Soc. Sec., 931 F.3d at 202 (citing §§
404.1520(a)(4)(v), 416.920(a)(4)(v)). The ALJ must show that there are other jobs
existing in significant numbers in the national economy which the claimant can
perform, consistent with the claimant’s medical impairments, age, education, past work
experience, and RFC. Kirby v. Comm'r of Soc. Sec., No. CV 16-5159 (RMB), 2017 WL
4330361, at *1 (D.N.J. Sept. 29, 2017). The Commissioner must analyze the cumulative
effect of all the claimant's impairments in determining whether she is capable of
performing work and is not disabled. Id. See 20 C.F.R.§ 404.1523. This examination
typically involves “one or more hypothetical questions posed by the ALJ to [a]
vocational expert.” Id. (citing Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)).
If the claimant can make an adjustment to other work, she is not disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If she cannot, she is disabled. Id.
III.

STANDARD OF REVIEW

The Court has jurisdiction to review the ALJ’s final decision pursuant to 42
U.S.C. § 405(g). On a review of a final decision of the Commissioner , a district court
11

“shall have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews
v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Commissioner’s decisions regarding
questions of fact are deemed conclusive on a reviewing court if supported by
“substantial evidence in the record.” 42 U.S.C. § 405(g); see Lindemeyer v. Saul, No. CV
19-8781 (FLW), 2020 WL 3397287, at *6 (D.N.J. June 19, 2020) (citing Knepp v. Apfel,
204 F.3d 78, 83 (3d Cir. 2000)).
“Substantial evidence” has been defined as “such relevant evidence as a
reasonable mind might accept as adequate.” Burns v. Barnhart, 312 F.3d 113, 118 (3d
Cir.2002) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). It consists of more
than a mere scintilla of evidence but may be less than a preponderance of the evidence.
Burns, 312 F.3d at 118 (citing Plummer, 186 F.3d at 427). This test is deferential, and the
Commissioner's decision will not be disturbed if it is supported by substantial evidence,
even if the Court acting de novo might have reached a different conclusion. Jones v.
Comm’r of Soc. Sec., 275 F. App’x 166 (3d Cir. 2008). See Fargnoli v. Massanari, 247
F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ's findings of fact are supported by
substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) see also Burns, 312 F.3d at 118 (“we are not permitted to
weigh the evidence or substitute our own conclusions for that of the fact-finder.”) Thus,
substantial evidence supports the Commissioner’s determination where a “reasonable
mind might accept the relevant evidence as adequate” to support the conclusion reached
by the Commissioner. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
12

In order to properly facilitate this Court’s review, the ALJ must set out a specific
factual basis for each finding. See Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974).
Additionally, the ALJ “must adequately explain in the record [the] 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)), and must review all
pertinent medical and nonmedical evidence “and explain his conciliations and
rejections.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
However, the ALJ need not discuss “every tidbit of evidence included in the record.” Hur
v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004). Rather, the ALJ must set forth
sufficient findings to satisfy the reviewing court that the ALJ arrived at a decision
through application of the proper legal standards, and upon a complete review of the
relevant factual record. See Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983).
If faced with conflicting evidence in the record, 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); see also Guerrero v.
Comm’r of Soc. Sec., 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).
However, the ALJ need not “engage in a comprehensive analysis when explaining why
probative evidence is being rejected.” Davis v. Comm'r of Soc. Sec., No. CIV.A. 11-3036
MLC, 2012 WL 2594354, at *5 (D.N.J. July 5, 2012) (citing Cotter, 650 F.2d at 482).
Rather, a short sentence or paragraph explaining the basis upon which the ALJ is
rejecting evidence will suffice. Id. Without an indication as to what evidence the ALJ
considered or rejected, a court “cannot tell if significant probative evidence was credited
13

or simply ignored.” Davis v. Comm’r of Soc. Sec., WL 2594354 at *5. The Third Circuit
further holds that sufficient development of the record and explanation of findings
promotes meaningful review of the testimony. Jones v. Barnhart, 364 F.3d 501, 5050
(3d Cir. 2004); see also Fargnoli v. Massanari, 247 F.3d at 42-43 (“When there is
conflicting probative evidence in the record, we recognize a particularly acute need for
an explanation behind the ALJ’s conclusions, and will vacate or remand a case where
such an explanation is not provided.”)
IV.

ANALYSIS

Plaintiff argues that the ALJ erred by (1) formulating an RFC that is incompatible
with the totality of the testimony of the Vocational Expert; (2) failing to find Plaintiff’s
fibromyalgia to be a severe impairment, and compounding that error by failing to
include limitations secondary to Plaintiff’s fibromyalgia in the RFC; and (3)
misevaluating the treating source opinion and the functional capacity evaluation. [Dkt.
No. 9]. This court will address Plaintiff’s first argument, whether the ALJ’s
determination of RFC is incompatible with the totality of the testimony of the vocational
expert, below.
Plaintiff argues that the ALJ erred in formulating an RFC that is incompatible
with the totality of the testimony of the VE [Dkt. No. 9]. Plaintiff contends that there is a
clear discrepancy in the VE’s testimony at the hearing, and that, without clarification,
the VE’s testimony “cannot constitute ‘substantial evidence,’ creating an issue that must
be resolved on remand.” [Pl. Br. p. 14]. Because the Court agrees that there is a
discrepancy in the testimony of the VE, the Court will remand for further proceedings.

14

The Third Circuit has held that “where there is conflicting probative evidence in
the record, we recognize a particularly acute need for an explanation of the reasoning
behind the ALJ’s conclusions, and will vacate or remand a case where such an
explanation is not provided.” Fargnoli v. Massanari, 247 F.3d at 42-43 (citing Cotter v.
Harris, 642 F.2d at 706). The ALJ has a duty to accurately convey to the VE all of a
claimant’s credibly established limitations, such that an accurate and complete
hypothetical can be posed to the VE during the hearing before the ALJ. Rutherford v.
Barnhart, 399 F. 3d 546, 553-54 (3d Cir. 2005) (citing Plummer, 186 F.3d at 431). A
hypothetical that does not include all of the plaintiff’s impairments is deficient. Davis v.
Comm’r of Soc. Sec., WL 2594354 at *11 (citing Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir. 1987)). This rule applies solely to “every limitation established by the
physical evidence.” Plummer, 186 F.3d at 431.
In Kirby v. Commissioner of Social Security, the district court remanded the
matter to the ALJ for failure to resolve an apparent conflict in the VE’s hearing
testimony. Kirby v. Comm'r of Soc. Sec., WL 4330361, at *6. The court reasoned that “a
vocational expert’s response to an inaccurate or incomplete hypothetical cannot
constitute substantial evidence.” Id. (citing Chrupcala v. Heckler, 829 F.2d at 1276).
Like Zuschlag, the plaintiff in Kirby was 40 years old on the AOD. Id. at 5. She suffers
from several impairments, including but not limited to generalized anxiety, depression,
insomnia, neck, back, shoulder and hip pain. Id. at 6. The ALJ determined that the
plaintiff had the RFC to perform her past relevant work as a typesetter, along with other
sedentary, routine work existing in the national economy. Id. at 7-11. Thus, the plaintiff’s
application for DIB was denied, and the ALJ issued a finding of “not disabled.” Id. at 11.

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The plaintiff in Kirby contested on appeal that the ALJ’s hypothetical posed to the
VE at Steps 4 and 5 of the inquiry did not clearly represent all of plaintiff’s impairments.
Id. As a result, the plaintiff argued that the time she would likely need to spend off-task
at work was not afforded proper weight by the VE in assessing RFC. Id. at 14-15. At the
plaintiff’s hearing, the VE reviewed the plaintiff’s work history and listened to her
testimony. Id. at 6, 14. During the VE’s interview, a discrepancy in testimony arose when
the ALJ asked the VE to establish threshold percentages of acceptable “time off-task” in
order to formulate an accurate RFC. Id. The VE first provided that an employer’s
tolerance for time off-task was “somewhere between 10 and 15%.” Id. at 7. The ALJ then
asked whether 5% off-task is conducive to employment. Id. The VE answered in the
affirmative, then the ALJ expounded upon the hypothetical. Id. at 8. The ALJ then
added to the hypothetical “…what if the individual…was off-task…an additional halfhour every day just due to anxiety symptoms in addition to normal breaks. Could they
do any of these jobs?” Id. The VE provided that the plaintiff could not. Id.
The district court, based on this testimony, found that the ALJ, in formulating
this hypothetical, asked the VE two separate, contradictory questions. Id. The court was
not convinced that the definition of “off-task” was clearly and uniformly established. Id.
Since “the ALJ’s hypothetical was incomplete, or at least unclear, the vocational expert’s
response thereto is not substantial evidence.” Id. Thus, the court found that a remand to
present the ALJ with a complete and accurate hypothetical upon which to render a
decision in this matter was proper. Id.
Here, similar to the facts of Kirby, Plaintiff contests that the questions posed to
the VE by the ALJ produced contradictory testimony surrounding how long an
individual could be “off-task” in order to be considered for competitive employment.
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(A.R. 69-77). In her decision, the ALJ formulated an RFC that limited the plaintiff to
sedentary, unskilled work, based on the VE’s initial testimony stating that “any more
than 15% [off-task] in addition to normal breaks is preclusive of competitive
employment.” (Id. at 72). The ALJ and the VE seem to initially agree that in order for
Plaintiff to be considered eligible for the three jobs the VE selected from the DOT,
Plaintiff could not be “routinely off-task,” which is considered to be “16-20 percent of
the day,” but that 10% of the workday off-task is acceptable. (Id.).
However, during the VE’s questioning with Plaintiff’s attorney, Counsel asked
whether an individual could maintain employment “if [they] were off-task less than 15
percent, you know, five or ten percent, but for that period of time, they were abandoning
their work station.” (Id. at 75). Counsel then questioned, “…let’s start with 10 percent, so
that would be six minutes out of every hour.” To which the VE responded, “No, that
wouldn’t be tolerated.” (Id.). Further, the VE testified that “an additional 20-minute
break” is “difficult for competitive employment.” (Id. at 76). This contradicts the
previous testimony the VE provided, since an additional 20-minute break beyond the
normal breaks for an unskilled worker represents only about 5% of the workday spent
“off-task,” which was initially deemed acceptable by the VE for competitive
employment.
Based on a review of this testimony, the Court finds that the ALJ failed to clarify
the difference between time spent “off-task” versus time spent “away from one’s
workstation.” (Id. at 75). The VE seemed to treat time spent off-task and time spent
away from one’s workstation as two separate hypotheticals and this contradiction in
testimony was not properly clarified or addressed by the ALJ during the hearing. (Id.).

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Because the ALJ’s hypothetical was unclear, such that it produced conflicting testimony,
the VE’s response thereto does not constitute “substantial evidence.”
Remand aligns with the Third Circuit’s directive that there is an affirmative duty
on the part of the ALJ to inquire about conflicts between VE testimony and the DOT.
Rutherford v. Barnhart, 399 F.3d at 556; See Policy Interpretation Ruling: Titles II &
Xvi: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable
Occupational Info. in Disability Decisions, SSR 00-4P (S.S.A. Dec. 4, 2000) (holding
that before an ALJ can rely on VE evidence to support a disability determination, they
must identify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by the VE and information in the DOT).
Here, the VE testified that “…walking away from your workstation is different
than being off-task, I think,” and provided that this was his opinion, not contained in the
DOT. (Id. at 75). While this is not a direct contradiction with information contained in
the DOT, it furthers the Court’s reasoning that remand is required to ensure that the
VE’s testimony was given with clarity and was consistent with a sufficient factual basis
for all claims. Thus, the Court is compelled to remand this matter so that the ALJ may
present the VE with a complete and accurate hypothetical, to which the VE can respond
with clarity. On remand, the ALJ may reach the same conclusion, but it must be based
on a proper foundation.
V.

CONCLUSION

For the reasons set forth above, the Court will remand this matter to the ALJ for
further consideration consistent with this opinion and Order. Moreover, because

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remand is necessitated on this ground, the Court need not reach Plaintiff’s remaining
arguments.
An appropriate Order shall issue.
DATED: September 15, 2020
s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
United States District Judge

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