SMITH-SERIGHT v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Renee Marie Bumb on 4/30/2019. (rtm, )

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

FRANCES JEAN SMITH-SERIGHT,
Plaintiff,

Civil No. 18-4269(RMB)
v.

OPINION

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
POLONSKY & POLONSKY
By: Alan Polonsky, Esq.
512 S. White Horse Pike
Audubon, New Jersey 08106
Counsel for Plaintiff Frances Jean Smith-Seright
SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL
By: Rachel Licausi, Special Assistant U.S. Attorney
300 Spring Garden Street
Philadelphia, Pennsylvania 19123
Counsel for Commissioner of Social Security

RENÉE MARIE BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Frances Jean Smith-Seright (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 will VACATE the decision of the Administrative Law
Judge (the “ALJ”) and REMAND for proceedings consistent with
this Opinion.

I.

PROCEDURAL HISTORY
On December 30, 2013, Plaintiff filed a Title II

application for disability insurance benefits and a Title XVI
application for supplemental security income.

In her

application, Plaintiff alleges disability, beginning January 1,
2010, based on her severe obesity, asthma, depression, and
bipolar disorder.

Plaintiff also allegedly suffers from

posttraumatic stress disorder (“PTSD”), learning disabilities,
and has a history of substance abuse.

Plaintiff’s claim was

initially denied on May 15, 2014, and again denied upon
reconsideration on August 21, 2014. [Record of Proceedings
(“R.P.”) at 92-138].

On March 30, 2017, Plaintiff testified at

a formal hearing before Administrative Law Judge Arthur Patane.
At the hearing, Plaintiff was represented by an attorney.
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On August 8, 2017, the ALJ issued a decision denying
Plaintiff’s claim for benefits, based on the ALJ’s determination
that “there are jobs that exist in significant numbers in the
national economy that the claimant can perform.” [R.P. at 23].
The Appeals Council denied Plaintiff’s request for review on
February 6, 2018, rendering the ALJ’s decision as final. [R.P.
at 1-3].

II.

Plaintiff now seeks this Court’s review.

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
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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, 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).
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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.
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.

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Plaintiff is a 34

year-old female, but was 24 years old on the alleged disability
onset date and 32 years old at the time of her hearing before
the ALJ.

Plaintiff attended some high school, but neither

graduated nor earned a GED.

Although Plaintiff worked for a few

months as a “parent coach” for the Board of Education in May
2011, she has almost no work experience at all, let alone past
relevant experience.

A.

Plaintiff’s Medical History and Testimony

According to medical records, Plaintiff suffers from a
variety of physical and mental impairments.

Notably, medical

records indicate that Plaintiff is severely obese and suffers
from asthma, bipolar disorder, depression, PTSD, learning
disabilities, and substance abuse.

At a doctor’s appointment on

January 10, 2010, around the alleged onset date, Plaintiff was
measured at 5’6” and weighed 364 pounds. [R.P. at 804].
8, 2013, Plaintiff weighed 405 pounds. [Id. at 947].

On July

By January

10, 2017, shortly before Plaintiff’s administrative hearing,
Plaintiff weighed 461 pounds. [Id. at 1297].

Since 2015,

Plaintiff has been attending a program at Wiley Christian
Behavioral Management Services (“Wiley”) in relation to her
mental health issues, including her bipolar disorder,
depression, and substance abuse. [Id. at 42-44].

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Plaintiff’s

substance abuse relates to past use of marijuana, alcohol, and
other street drugs.
Plaintiff testified at the administrative hearing that she
left high school when her son was born and was unable to
complete her degree when she tried to return afterwards.
Plaintiff states that she has struggled to find jobs or GED
programs that will accept her, given her schedule for mental
health treatment during the day at Wiley.
At the administrative hearing, Plaintiff described the ways
her obesity impacts her daily life.

Plaintiff testified that

she has one specific chair in her house that will support her
weight, as she has previously broken through chairs.

Plaintiff

has difficulty standing for more than 30 minutes at a time and
often needs her son’s assistance to complete routine tasks, such
as cleaning the apartment, carrying heavy groceries, putting on
socks, and lifting pots of water while cooking.

Plaintiff

states that she can shower on her own because her shower has a
bar that she can grab onto when she climbs into the tub.
Plaintiff testified that she tried to exercise at a gym to lose
weight, but injured her knee and felt that it did not heal
enough for her to resume exercising.
According to psychological evaluation performed by Dr.
Kenneth Goldberg, Ph.D. on May 19, 2010, Plaintiff tests in the
low-average range of intellectual functioning. [See R.P. at 6627

669].

Notably, Dr. Goldberg observed significant disparities in

test scores in Plaintiff’s reading, as compared to her writing
ability, suggesting learning disorders.

Dr. Goldberg noted that

he was providing Plaintiff with a form authorizing
accommodations for GED testing, but noted that “it seems likely
that her skills are short of passing that test, even with the
accommodations she seeks.” [Id. at 665].

Dr. Goldberg concluded

that Plaintiff was “an extremely depressed person who out to be
in therapy.”

Regarding Plaintiff’s PTSD, Dr. Goldberg found

that “it is likely that the trauma goes beyond what she
reports... it is likely that past events continue to have an
impact in the relationships she has, at home and with the
world.” [Id.] Although Dr. Goldberg noted that Plaintiff “gives
some indication that her true preference is to stay home with
her child rather than go out to work,” he also stated that
“[g]iven her weight and her asthma, it is probably best for her
to have work which is not too physically demanding.” [Id. at
666].

B.

The ALJ’s Decision

In his decision, the ALJ concluded that Plaintiff was not
disabled, as defined in the Social Security Act, from her
alleged onset date through the date of the ALJ’s decision.

The

ALJ found that Plaintiff suffers from severe impairments, but

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held that she retained a Residual Functional Capacity (“RFC”) to
perform unskilled light work in jobs that exist in significant
numbers in the national economy.
At Step One of the sequential analysis the ALJ determined
that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date of January 1, 2010. [R.P. at 17].
At Step Two, the ALJ determined that Plaintiff’s “severe”
impairments were “obesity, asthma, depressive disorder,
posttraumatic stress disorder, learning disorder, and history of
substance use disorder.” [Id.].
At Step Three the ALJ determined that Plaintiff did not
have an impairment that meets or is medically equivalent to the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
At Step Four, the ALJ determined that the Plaintiff:
has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she is limited to performing
the simple, routine tasks associated with
unskilled work at an SVP 1 or 2 and should not
be exposed to concentrated levels of respiratory
irritants.
[R.P. at 18]. In making this decision, the ALJ
considered Plaintiff’s “own reports and allegations,” which
the ALJ found to be “partially, though not entirely
consistent with the medical evidence.” [R.P. at 22].
Although the ALJ noted that Plaintiff’s impairments were
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“well-documented,” the ALJ concluded that “to the extent
that she asserts that these conditions prevent her from
performing any work on a sustained, consistent basis, her
allegations are undermined by her indication to an
examining source that staying home from work was merely a
‘preference.’” [Id.].

IV.

DISCUSSION
On appeal, Plaintiff argues that the ALJ’s disability

determination is not supported by substantial evidence because
the ALJ failed to adequately account for the limitations posed
by Plaintiff’s severe obesity and her mental limitations in
formulating her RFC.

This Court agrees with Plaintiff.

With respect to RFC assessments, an ALJ is not required to
include every alleged limitation in their hypotheticals and RFC
assessments. See O'Bryan v. Colvin, 2014 WL 4649864, at *6 (W.D.
Pa. Sept. 16, 2014).

Rather, the ALJ’s responsibility is to

“accurately convey” only “credibly established limitations”
which “are medically supported and otherwise uncontroverted in
the record.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d
Cir.2003).
Plaintiff testified at the administrative hearing that her
obesity causes significant limitations in her day-to-day life.
However, the ALJ’s opinion barely discusses Plaintiff’s obesity.
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As noted by in Plaintiff’s brief, Plaintiff suffers from severe
obesity and would be considered “morbidly obese” at all times
since the alleged onset date.
The ALJ mentions that he considered SSR 02-1P, which
pertains to the limiting impact of obesity, but the ALJ does not
apply the SSR or discuss those limitations in the opinion.

In

relevant part, SSR 02-1P mandates that an RFC assessment should
include an evaluation of “the effect obesity has upon the
individual’s ability to perform routine movement and necessary
physical activity within the work environment” and “must
consider an individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a
regular and continuing basis.”

The Ruling also advises that the

“combined effects of obesity with other impairments may be
greater than might be expected without obesity.”

To the extent

the ALJ may have considered these factors, such considerations
are not articulated in the opinion in a manner that allows this
Court to conduct a meaningful judicial review.
“[A]n ALJ must meaningfully consider the effect of a
claimant's obesity, individually and in combination with her
impairments, on her workplace function at step three and at
every subsequent step.” Diaz v. Comm'r of Soc. Sec., 577 F.3d
500, 504 (3d Cir. 2009). In Diaz, the Third Circuit reversed a
district court and directed that a Social Security matter be
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remanded for further proceedings, and went on to hold that
“absent analysis of the cumulative impact of [plaintiff's]
obesity and other impairments on her functional capabilities, we
are at a loss in our reviewing function.” Id. & n.3.
The lack of any discussion about potential limitations
posed by Plaintiff’s obesity is not a harmless error, especially
considering the ALJ’s RFC determination.

Notably, the

definition of “light work” calls for “frequent lifting or
carrying of objects weighing up to 10 pounds” and may require “a
good deal of walking or standing.” 20 CFR 404.1567(b) and
416.967(b).

The ALJ also did not solicit testimony from a

vocational expert as to whether Plaintiff’s limitations would
impact her ability to find regular employment.

Absent a more

thorough discussion of Plaintiff’s physical limitations related
to her obesity, as well as how it interacts with her asthma,
depression, and other impairments, the Court cannot find that
the ALJ’s opinion is supported by substantial evidence. See
Garcia-Estrada v. Comm'r of Soc. Sec., 2017 WL 498714, at *4
(D.N.J. Feb. 7, 2017)(remanding a case because “the ALJ’s
failure to properly analyze [plaintiff’s] obesity necessarily
led to improper conclusions concerning her RFC”); Ward v. Comm'r
of Soc. Sec., No. 13-763, 2015 WL 5823061, at *5–6 (D.N.J. Oct.
1, 2015)(remanding a Social Security matter based on the ALJ's
deficient analysis of the plaintiff's obesity in the RFC portion
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of the Decision, which as a result evaded meaningful judicial
review); Standowski v. Colvin, 2015 WL 404659, at *12–13 (D.N.J.
Jan. 29, 2015)(remanding a Social Security matter because the
ALJ “barely discussed” the plaintiff's severe impairment of
obesity, and “the ALJ's residual functional capacity
determination is silent on obesity”).
This Court does not express an opinion as to whether
Plaintiff’s impairments meet a listing or render her disabled,
as defined by the Act.

However, the Court finds that the ALJ

committed a reversible legal error in failing to adequately
address Plaintiff’s possible limitations related to her severe
obesity in formulating her RFC.

On remand, the ALJ must discuss

Plaintiff’s obesity under the framework set forth in SSR 02-1P
and fully develop the record regarding Plaintiff’s ability to
perform light work.1

1

As the Court finds that the ALJ’s RFC determination did not
sufficiently address Plaintiff’s obesity, this Court need not
separately reach the issue of whether the ALJ adequately
considered Plaintiff’s mental limitations. Indeed, to comply
with SSR 02-1P’s instructions, the ALJ must necessarily discuss
the impact of Plaintiff’s obesity on her other impairments,
including her mental limitations. The Court notes that this
additional analysis will almost certainly require a more
thorough discussion of Plaintiff’s mental limitations.
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V.

CONCLUSION
For the reasons set forth above, the Court will VACATE the

ALJ’s decision and REMAND for proceedings consistent with this
Opinion.

An appropriate Order shall issue on this date.

DATED: April 30, 2019

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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