WELCH v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Claire C. Cecchi on 10/26/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 2:13-cv-1864 (CCC)
COMMISSIONER Of SOCIAL SECURITY,
CECCHI, District Judge.
Before the Court is Plaintiff Wade D. Welch’s (“Plaintiff’) appeal seeking review of a final
determination by the Commissioner of the Social Security Administration (“Commissioner”)
denying his application for disability insurance benefits (“DIB)” under
§ 2 16(1) and 223(d) of the
Social Security Act (“SSA”). The issue to be decided is whether the Commissioner’s denial of
benefits is supported by substantial evidence. for the reasons set forth below, the decision of the
Administrative Law Judge (“AU”) is vacated and the matter is remanded for further proceedings
consistent with this Opinion.
On January 27, 2010, Plaintiff applied for DIB, alleging disability as of January 11,2010.
Tr.’ at 10. The application was denied initially on August 7, 2010, and upon reconsideration on
february 7, 2011. Id. On August 23, 2011, a hearing was held before the AL
Id. The AU
issued a decision on September 15, 2011 finding Plaintiff was not disabled, as defined by the SSA.
“Tr.” refers to the certified record of the administrative proceedings. ECF No. 27.
Id. at 14. Plaintiff requested review of the decision and the Appeals Council denied the request on
January 29, 2013. Id. at 1. On March 22, 2013, Plaintiff instituted this action. ECFNo. 1.
Plaintiff was born on July 18, 1957. Tr. at 62. Plaintiff has been married for 19 years and
has a college education. Id. at 25. During the hearing, Plaintiff testified that he works as a property
manager for a non-profit association, Advance Housing, Inc., and that it is his responsibility to do
inspections of the properties.2 Id. at 26.
Plaintiff also stated he works in a part-time seasonal
position at Home Depot. Id. at 2$. Plaintiff testified that on a day-to-day basis, he does housework
because his wife is disabled. Id. at 42. Therefore, Plaintiff cooks, does laundry, and shops. Id.
Plaintiff also testified he is very involved in the Alcoholics Anonymous program. Id.
Plaintiff claimed disability due to a condition called non-arteritic ischemic optic
neuropathy, which caused partial blindness in his right eye. See Id. at 192-93. Plaintiff reported
that he developed this condition in December 2009 when he woke up one morning in with a “brown
smudge in the inferior field of his right eye,” which progressed over the following days. Id.
Plaintiff alleges that due to this ailment, he has been unable to perform the essential functions of
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.
§ 405(g) and l383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Plaintiff submitted a letter after the AU’s decision issued expLaining that in January 2012, he
was terminated from this position after car accident which occurred while he was on the job in
December 2011. Tr. at 177.
Comm ‘r ofSoc. Sec., 667 F.3d 356. 359 (3d Cir. 2011); see also 42 U.S.C.
the court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 f.2d 772, 776 (3d
197$) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 4:08-1676, 2009 WL 101 1527, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. fed. Mar. Comm ‘n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm ‘r ofSoc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007)
(citingHartranftv. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show he is disabled
by demonstrating an 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. §S 423(d)(1)(A), 1382c(a)(3)(A). Taking into account the plaintiffs age, education,
and work experience, disability will be evaluated by the plaintiffs ability to engage in his previous
work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C.
13$2c(a)(3)(B). A person is disabled for these purposes only if his physical or
mental impairments are “of such severity that he is not only unable to do his previous work, but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.
Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 22$ f.3d 259, 262 (3d
cir. 2000) (citing Heckler v,
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3), 13$2(a)(3)(D).
Sequential Evaluation Process
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 416.920.
First, the AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
22$ f.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment
that limits his ability to work. Id. Third, if he has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix I (the “Listings”). If it is, this results in a presumption of disability. Id.
impairment is not in the Listings, the AU must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of his impairment. Id. at 263. Fourth, the AU must consider
whether the plaintiffs RFC is enough to perform his past relevant work. Id. Fifth, if his RFC is
not enough, the AU must determine whether there is other work in the national economy the
plaintiff can perform. Id.
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R. §S 404.1520(a)(4), 416.920(a)(4). The plaintiff bears the burden
of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 22$ f.3d at 263. Neither party bears the burden at step three. Id, at 263 n.2.
Summary of the AU’s Findings
At step one, the AU determined Plaintiff met the insured status requirements through
December 1, 2015, but that he had engaged in substantial gainful activity since January 1, 2010.
Tr. at 12. Therefore, the AU concluded Plaintiff was not disabled, as defined in the SSA. Id. at
Plaintiff argues the AU’s decision should be remanded because the AU applied the wrong
legal standard to conclude that Plaintiff had engaged in substantial gainful activity in that “the AU
improperly viewed Mr. Welch’s earnings as conclusive on the issue of whether he had engaged in
‘substantial gainful activity” and the AU did not sufficiently explain his evaluation of the
evidence. See Plaintiffs Brief (“P1. Br.”) ECF No. 33.
At step one, an AU must determine whether a plaintiff has engaged in substantial gainful
activity. See 20 C.F.R.
§ 404.1573(c). Substantial work “involves doing significant physical or
mental activities,” and “gainful work” is work that is done “for pay or profit.” Id.
§ 404.1572. As
the Third Circuit explained, “earnings derived from the work activity are generally the primary
consideration in evaluating the work for substantial gainful activity purposes.” Beeks v. Comm ‘r
ofSoc. Sec., 363 F. App’x $95, $97 (3d Cir. 2010). If a plaintiffs earnings exceed the amount set
forth in the regulations, a presumption arises that the plaintiff engaged in substantial gainful
activity. Id. However, the regulations provide that the AU should also take into consideration
the quality of plaintiffs work and any special employment conditions provided to a plaintiff. 20
§ 404.1573(b), (c).
In relevant part. the regulations state:
We consider how well you do your work when we determine whether or not you
are doing substantial gainful activity. If you do your work satisfactorily, this may
show that you are working at the substantial gainful activity level. If you are unable,
because of your impairments, to do ordinary or simple tasks satisfactorily without
more supervision or assistance than is usually given other people doing similar
work, this may show that you are not working at the substantial gainful activity
Id. Additionally, special conditions may include that a plaintiff “required and received special
assistance from other employees in performing [his] work.” Id.
First, the AU explained that because Plaintiff “earned $22,510 in 2009 and $21,297.80 in
2010,” Plaintiff “clearly exceeded” the “monthly threshold for substantial gainful activity” for
those years, which was “$980.00 in 2009 and $1,000 in 2010.” Tr. at 12-13. The AU then went
on to explain that Plaintiff testified “he feels he is not doing as good ajob in some aspects because
he cannot see,” “his work is not as good as it was; that he makes mistakes; and that he does not do
certain things he should be doing as part of his job.” Id. The AU acknowledged that Plaintiff
“does not do certain parts of his job if he can have someone else do it instead, such as cutting
lumber or going up on an electric ladder to get something off a high shelf.” Id. The AU then
concluded that despite this testimony, Plaintiff had “continuously engaged in substantial gainful
work activity,” and that “the record is devoid of any evidence from the [Plaintiffs] employers
specifying that he was receiving special accommodations in order to perform his assigned work
Here, the Court finds it is unclear whether the AU sufficiently considered the regulations
as applied to Plaintiffs employment, and thus meaningful judicial review is precluded.
The regulations require an AU to consider “how well you do your work” in determining
if a plaintiff was engaged in substantial gainful activity. 20 C.F.R.
§ 404.15 73(b). Here, the AU
acknowledged Plaintiff testified that his quality of work had declined “because he cannot see,”
“his work is not as good as it was,” and “that he makes mistakes. Tr. at 13. However, the AU
then concluded that Plaintiff “has continuously engaged in substantial gainful work activity.” Id.
It appears the AU did not sufficiently explain his consideration of whether the declining quality
of Plaintiffs work affected his engagement in substantial work activity, as required by the
Additionally, the regulations state the AU must consider whether Plaintiff “required and
received special assistance from other employees in performing [his] work.”
404.1573(c). Further, “[i]f you are unable, because of your impairments, to do ordinary or simple
tasks satisfactorily without more supervision or assistance than is usually given other people doing
similar work, this may show that you are not working at the substantial gainful activity level.” 20
§ 404.1573(b). While the AU acknowledged that Plaintiff “does not do certain parts of
his job if he can have someone else do it instead,” he concluded that the record did not contain
evidence that he was given special accommodations. Yr. at 13. The Court finds the AU did not
sufficiently explain his reasoning for finding that the assistance Plaintiff received from his co
workers did not constitute “special assistance” or “more.
assistance than is usually given” which
may show that Plaintiff was not working at the substantial gainful activity level.
Accordingly, it appears the AU’s decision that “the claimant has continuously engaged in
substantial gainful work activity” failed to sufficiently discuss the evidence or explain his
reasoning. Burnett v. Comm ‘r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000).
Court finds the AU’s decision is not supported by substantial evidence and is remanded for further
consideration of this issue.
for the foregoing reasons, the Court vacates the AU’s decision and remands this case for
further administrative proceedings consistent with this Opinion.
An appropriate order
accompanies this Opinion.
CLAIRE C. CECCHI, U.S.D.J.
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