ANDREWS v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Madeline C. Arleo on 5/7/2015. (anr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, :
Civil Action No. 13-6607
May 7, 2015
ARLEO, UNITED STATES DISTRICT JUDGE.
Before this Court is Plaintiff Iris Andrews’s request for review, pursuant to 42 U.S.C. §§
1383(c)(3), 405(g), of the Commissioner of Social Security Administration’s (“Commissioner”)
denial of Plaintiff’s applications for Disability Insurance Benefits and Supplemental Security
Income Benefits (collectively, “Disability Benefits”). Plaintiff argues that (1) the Appeals Council
abused its discretion by vacating and reversing the Administrative Law Judge’s decision; and (2)
the Commissioner’s decision was not supported by substantial evidence. For the reasons set forth
in this Opinion, the Court finds that the Commissioner’s decision is beyond meaningful judicial
Accordingly, the Commissioner’s decision must be REMANDED for further
consideration consistent with this Opinion.
I. STANDARD OF REVIEW AND APPLICABLE LAW
A. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.
§ 405(g). The Court must affirm the Commissioner’s decision if there exists substantial evidence
to support the decision. 42 U.S.C. § 405(g); Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003).
Substantial evidence, in turn, “means such relevant evidence as a reasonable mind might accept as
adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). Stated differently, substantial
evidence consists of “more than a mere scintilla of evidence but may be less than a preponderance.”
McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
“[T]he substantial evidence standard is a deferential standard of review.”
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Accordingly, the standard places a significant limit
on the district court’s scope of review: it prohibits the reviewing court from “weigh[ing] the
evidence or substitut[ing] its conclusions for those of the fact-finder.” Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992). Further, this Court must review the determination of the Appeals
Council as the “final decision” of the Commissioner, as opposed to the decision of the
administrative law judge. Welch v. Heckler, 808 F.2d 264, 267 (3d Cir. 1986). Therefore, even if
this Court would have decided the matter differently, it is bound by the Appeals Council findings
of fact so long as they are supported by substantial evidence. Hagans v. Comm’r of Soc. Sec., 694
F.3d 287, 292 (3d Cir. 2012) (quoting Fargnoli v. Massanari, 247 F.3d 34, 35 (3d Cir. 2001)).
In determining whether there is substantial evidence to support the Commissioner’s
decision, the Court must consider: “(1) the objective medical facts; (2) the diagnoses of expert
opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective
evidence of pain testified to by the claimant and corroborated by family and neighbors; and (4) the
claimant’s educational background, work history, and present age.” Blalock v. Richardson, 483
F.2d 773, 776 (4th Cir. 1973).
B. The Five-Step Disability Test
In order to determine whether a claimant is disabled, the Commissioner must apply a fivestep test. 20 C.F.R. § 404.1520(a)(4). First, it must be determined whether the claimant is
currently engaging in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). “Substantial
gainful activity” is defined as work activity, both physical and mental, that is typically performed
for either profit or pay. 20 C.F.R. § 404.1572. If it is found that the claimant is engaged in
substantial gainful activity, then he or she is not disabled and the inquiry ends. Jones, 364 F.3d at
503. If it is determined that the claimant is not engaged in substantial gainful activity, the analysis
moves on to the second step: whether the claimed impairment or combination of impairments is
20 C.F.R. § 404.1520(a)(4)(ii).
The regulations provide that an impairment or
combination of impairments is severe only when it places a significant limit on the claimant’s
“physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimed
impairment or combination of impairments is not severe, the inquiry ends and benefits must be
denied. Id.; Ortega v. Comm’r of Soc. Sec., 232 F. App’x 194, 196 (3d Cir. 2007).
At the third step, the Commissioner must determine whether there is sufficient evidence
showing that the claimant suffers from a listed impairment or its equivalent. 20 C.F.R. §
404.1520(a)(4)(iii). If so, a disability is conclusively established and the claimant is entitled to
benefits. Jones, 364 F.3d at 503. If not, the Commissioner must ask at step four whether the
claimant has residual functional capacity (“RFC”) such that he is capable of performing past
relevant work; if that question is answered in the affirmative, the claim for benefits must be denied.
Id. Finally, if the claimant is unable to engage in past relevant work, the Commissioner must ask,
at step five, “whether work exists in significant numbers in the national economy” that the claimant
is capable of performing in light of “his medical impairments, age, education, past work
experience, and ‘residual functional capacity.’” 20 C.F.R. §§ 404.1520(a)(4)(iii)-(v); Jones, 364
F.3d at 503. If so, the claim for benefits must be denied. The claimant bears the burden of
establishing steps one through four, while the burden of proof shifts to the Commissioner at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Under 42 U.S.C. § 405(g) and Third Circuit precedent, this Court is permitted to “affirm,
modify, or reverse the [Commissioner’s] decision with or without a remand to the [Commissioner]
for a rehearing.” Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm’r of
Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007). While an outright reversal with an order to
award benefits is permissible in the presence of a fully developed record containing substantial
evidence that the claimant is disabled, the Court must order a remand whenever the record is
incomplete or lacks substantial evidence to justify a conclusive finding at one or more of the five
steps in the sequential analysis. See Podedworny, 745 F.2d at 221-22.
A. Procedural History
This case arises out of Plaintiff’s May 25, 2011, applications for disability insurance
benefits and supplemental security income, which were denied both initially on October 11, 2011,
and on reconsideration on February 2, 2012. (Tr. 93-102, 110-15). Plaintiff then sought review
before an administrative law judge, and a hearing before the Honorable Donna Krappa (the “ALJ”)
occurred on March 6, 2013. (Tr. 22). Following the hearing, the ALJ issued a decision on May
22, 2013, in which she found that Plaintiff was disabled. (See Tr. 15-21). On July 15, 2013, the
Appeals Council notified Plaintiff that, pursuant to 20 C.F.R. §§ 416.146 and 416.1470(a), it had
decided on its own motion to review the ALJ’s decision. After a review of the record, the Appeals
Council ruled on August 30, 2013 that the Plaintiff was not disabled within the meaning of the
Act, thereby reversing the ALJ. (See Tr. 8). The decision of the Appeals Council became the final
decision of the Commissioner. Plaintiff then timely filed the instant action on November 1, 2013.
(Dkt. No. 1, Compl.).
B. Factual Background
Plaintiff is a 43-year-old woman who alleged in her applications for Disability Benefits
that she became disabled on April 1, 1999. (Tr. 167, 171).1 Prior to the onset of her alleged
disability, Plaintiff worked intermittently as a cook at various fast food restaurants. (See Tr. 209).
In each restaurant, Plaintiff prepped food, cooked orders, and performed cleaning tasks. (Tr. 20916).
Plaintiff claimed in her initial application that she suffers from depression, obsessive
compulsive disorder, and bipolar disorder. (Tr. 60). She lives with three of her five children and
spends the majority of her day cleaning. (Tr. 27-28). Plaintiff alleges that her condition prevents
her from performing any work as she becomes overwhelmed and unstable. (Tr. 166, 168).
Plaintiff’s medical history begins on October 13, 2010. At that time, Plaintiff reported
increased levels of depression and isolation. (Tr. 297). Next, at an initial psychiatric assessment
on November 9, 2010, Plaintiff reported depression, insomnia, decreased appetite, and anhedonia,
although her mental status examination indicated normal speech and motor activity, cooperative
behavior, good eye contact, normal affect, coherent thoughts, and no delusions or
suicidal/homicidal ideation. (Tr. 301-06). Examining Doctors Marek Belz and Manoj Puthiyathu,
Plaintiff later changes her alleged disability date to October 1, 2001. (Tr. 273).
however, diagnosed Plaintiff with major depressive disorder recurrent, moderate; personality
disorder not otherwise specified with antisocial traits; and assessed her GAF to be 45.2 (Tr. 307).
Plaintiff continued to receive treatment at Bergen Medical Center through March 7, 2012.
(Tr. 366-68). During this time, Plaintiff generally complained of the same symptoms and had her
medications steadily increased from October 13, 2010, through March 7, 2012. In the most recent
treatment notes, dated March 7, 2012, Dr. Puthiyathu described Plaintiff’s complaints of mood
swings, isolative behaviors, increased mood reactivity, and middle insomnia. (Tr. 366-68).
Adittionally, Dr. Puthiyathu referred Plaintiff for additional psychotherapy to focus on her coping
skills. (Tr. 367).
On August 28, 2012, Dr. Heather Greenspan, a psychiatrist at the Bergen Regional Medical
Center, provided a Psychiatric/Psychologic Disability Questionnaire, which Drs. Belz and
Dr. Greenspan diagnosed Plaintiff with OCD, major
depressive disorder, and a current GAF of 55.3 Supporting her diagnosis, she found Plaintiff
showing symptoms of sleep disturbance; personality change; mood disturbance; emotional
liability; recurrent panic attacks; feelings of guilt/worthlessness; difficulty thinking or
concentrating; social withdrawal or isolation; decreased energy; obsessions or compulsions; and
hostility and irritability. (Tr. 373).
Furthermore, Dr. Greenspan found Plaintiff markedly limited in her ability to: (1) make
simple work decisions; (2) complete a normal workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
A GAF or Global Assessment of Functioning Score between 41-50 indicates “[s]erious
impairments in social, occupational (e.g. no friends, can’t keep a job).” (Tr. 308).
A GAF or Global Assessment of Functioning Score between 51-60 indicates “[m]oderate
symptoms or difficulties (e.g. few friends, conflicts with peers).” (Tr. 308).
number and length of rest periods; (3) interact appropriately with the general public; (4) accept
instructions and respond appropriately to criticism from supervisors; (5) maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness; and (6) travel
to unfamiliar places or use public transportation. (Tr. 376-77). Additionally, Dr. Greenspan noted
Plaintiff was: (1) mildly limited in her ability to maintain attention and concentration for extended
periods; (2) moderately limited in her ability to work in coordination with or proximity to others
without becoming distracted; (3) incapable of even low stress work; and (4) likely to be absent
from work as a result of the impairments or treatment more than three times a month. (Tr. 37679).
C. The Commissioner’s Decision
On February 29, 2012, Plaintiff requested a hearing before an ALJ, which occurred on
March 6, 2013. (Tr. 22, 116-20). Following the hearing, the ALJ issued her decision on May 22,
2013, finding that Plaintiff was disabled. (Tr. 15-21). After finding at step three that Plaintiff’s
impairments did not meet or equal a listed impairment, the ALJ described Plaintiff’s RFC as
[Plaintiff] has the [RFC] to perform the exertional demands of light work as defined
in 20 CFR 416.967(b) specifically, [Plaintiff] is able to: lift/carry 20 [pounds]
occasionally and 10 [pounds] frequently; stand/walk for 6 hours in an eight hour
day; sit for 6 hours in an eight hour work day; and perform unlimited pushing and
pulling within the weight restriction given. Moreover, regarding the postural and
environmental demands of work, I find that claimant is able to perform jobs that
require no use of ladders, ropes, or scaffolds; that require frequent (as opposed to
unlimited) use of ramps or stairs; that require occasional balancing, stooping,
kneeling, crouching, and/or crawling; and that require no exposure to unprotected
heights, hazards or dangerous machinery. Furthermore, as to the mental demands
of work, I find that the claimant is able to perform jobs: that are unskilled and
repetitive; that are low stress (that is, these jobs require an occasional change in the
work setting during the workday, only an occasional change in decision making
required during the workday, and, if production based, production is monitored at
the end of the day rather than consistently throughout it); and that require only
occasional contact with supervisors, and co-workers, but no contact with the
(Tr. 18) (emphasis in original). Thus, the RFC did not include certain limitations identified by
Dr. Greenspan, such as Plaintiff’s likely need to be absent from work at least three times per month.
(Tr. 379). The ALJ then determined that Plaintiff did not have any past relevant work; thus, the
analysis moved to step five. (Tr. 20). There, the ALJ found the Plaintiff disabled—that is, given
Plaintiff’s RFC, the ALJ found that no jobs existed in significant numbers in the national economy
that Plaintiff could perform in light of her age, education, work experience, and RFC. (Tr. 20-21).
The ALJ based that finding on the testimony of a vocational expert (“VE”) who appeared
at the March 6, 2013, hearing. (Tr. 21). At the hearing, the ALJ posed several hypothetical
situations to the VE in which she first laid out a hypothetical RFC and then asked whether there
were any jobs that a person with that RFC could perform. (Tr. 37-40). The first of these
hypotheticals tracked the RFC quoted above:
[L]et’s assume someone of [Plaintiff’s] age, educational background and work
experience. Now let’s assume the best she can do are the demands of light work,
20 pounds occasionally, 10 pounds frequently, stand or walk six hours in an eighthour workday, perform unlimited pushing and pulling. . . . This person can have no
work in close proximity to others and by that I mean no closer than three to five
feet to avoid distraction and only occasional contact with supervisors and
coworkers and no contact with the general public. Given that [RFC] would there
be any jobs a person could perform?
(Tr. 37-38). In response, the VE stated that Plaintiff could perform the jobs of laborer, laundry
folder, and ticketer. (Tr. 38). For those occupations, the VE testified that 11,400 total jobs existed
regionally and 440,000 existed nationally. (Id.). The ALJ then asked whether jobs existed for a
person capable of only sedentary work (as opposed to light work) with all of the same limitations.
(Id.). The VE responded that such a person could perform the jobs of scale operator, preparer, and
polisher for a total of 1,000 jobs regionally and 93,000 jobs nationally. (Tr. 38-39).
Next, The ALJ posed additional limitations to the VE in four successive hypotheticals: (1)
persons having problems maintaining concentration during the workday; (2) persons who must be
absent from work three times or more per month; (3) persons who cannot handle even low stress
jobs; and (4) persons having less than occasional contact with supervisors and coworkers.4 (Tr.
39-40). These were precisely the additional limitations that Dr. Greenspan identified, and the ALJ
explicitly stated at the hearing that she was relying on Dr. Greenspan’s report. (See Tr. 39, 37679). To each of these hypotheticals, the VE responded that no jobs would be available to the
Plaintiff. (Tr. 39-40). Apparently, then, the ALJ’s step five finding was based on at least one of
these four hypotheticals, since the first two hypotheticals showed the existence of a significant
number of jobs in the national economy.5 The ALJ did not, however, identify which of the
hypotheticals she was relying upon, nor did she explicitly include any of the four limitations in the
RFC. (See Tr. 18, 20-21).
On its own motion, the Appeals Council ruled on August 30, 2013, that Plaintiff was not
disabled, thereby reversing the ALJ. (Tr. 8). In reaching that conclusion, the Appeals Council
adopted the ALJ’s findings with the exception of the ALJ’s step five determination. Specifically,
the Appeals Council found that Dr. Greenspan's evaluation supported the ALJ’s RFC
determination, but the Appeals Council disagreed with the ALJ’s finding that no jobs existed in
the national economy that Plaintiff could perform. (Tr. 6). That is, the Appeals Council found
It is unclear whether the VE intended his answers to these hypotheticals to apply to a person
capable of both light and sedentary work. If applicable only to a sedentary worker, then the
answers would be irrelevant in light of the ALJ’s determination that Plaintiff is capable of light
work. If applicable to both sedentary and light workers, then the VE’s answers remain relevant.
Accordingly, this issue must also be clarified on remand.
Cf. Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987) (finding 200 total regional jobs to be “clear
indication” that significant work in the national economy existed). See also Ahmad v. Comm’r of
Soc. Sec., 531 F. App’x 275, 278 (3d Cir. 2013) (citing Craigie with approval and holding that 569
available jobs was sufficient).
that jobs did exist in significant numbers in the national economy that a person with Plaintiff’s
RFC could perform. (Id.). The Appeals Council relied upon the testimony of the VE in
conjunction with the Dictionary of Occupational Titles and concluded that a significant number of
such jobs existed. (Tr. 7). The Appeals Council therefore appeared to rely on the VE’s responses
to the first two hypotheticals, but the Appeals Council discussed neither those hypotheticals nor
the other hypotheticals that the ALJ posed to the VE. (Id.).
As noted previously, the Appeals Council and the ALJ determined that the Plaintiff was
capable of performing light work as defined at 20 C.F.R. § 416.967(b) and was further limited to
jobs that: 1) are unskilled and repetitive; 2) are low stress; 3) require only occasional contact with
supervisors and coworkers; and 4) require no contact with the general public. (See Tr. 4-5; 18).
The Appeals Council and the ALJ differed, however, on whether a significant number of jobs
existed in the national economy that Plaintiff could perform. Because the Appeals Council and
the ALJ have failed adequately to explain the reasoning for their determinations, the Court finds
that it is unable to conduct a meaningful judicial review of whether the determinations are
supported by substantial evidence in the record. See Burnett v. Comm’r of Soc. Sec., 220 F.3d
112, 119 (3d Cir. 2000).
In determining a claimant’s RFC, the Commissioner is required to consider all relevant
evidence. Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001). Such relevant evidence includes
not only medical evidence, but also “descriptions of limitations by the claimant and others, and
observations of the claimant’s limitations by others.” Id. In considering all of the relevant
evidence, the Commissioner unambiguously requires the Appeals Council and the ALJ to provide
a “narrative discussion describing how evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). If the Appeals Council and the ALJ fail to
provide a “clear and satisfactory explication of the basis on which [the RFC determination] rests,”
this Court is deprived of the ability to discharge its duty to determine whether the Commissioner’s
decision is supported by substantial evidence. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
A substantial portion of the ALJ’s RFC analysis relies on Dr. Greenspan’s findings. (Tr.
But the ALJ merely recites Dr. Greenspan’s general findings without providing any
explanation as to which specific findings were included in, or excluded from, the ultimate RFC
determination. (See id.). Most importantly, the ALJ makes no mention of the four limitations
identified by Dr. Greenspan on which the ALJ relied when questioning the VE regarding the
availability of jobs for a person with those limitations. This fact is significant because the ALJ
stated in her decision that she “asked the [VE] whether jobs exist in the national economy for an
individual with the [Plaintiff’s RFC and] the vocational expert testified that given all of these
factors, there are no jobs in the national economy that the individual could perform.” (Tr. 20-21).
The ALJ does not, however, identify which hypothetical she relied on and, as noted above, the VE
found that jobs did exist for a person with the RFC that the ALJ explicitly adopted. There is
therefore a clear disconnect between the RFC that the ALJ adopted at step four and the RFC that
the ALJ applied at step five—that is, the ALJ either incorrectly penned the RFC in the first instance
or incorrectly applied it.
The Appeals Council’s decision does not rectify this confusion. The decision provides
very limited discussion of Dr. Greenspan’s evaluation. (See Tr. 6). The Appeals Council found
“Dr. Greenspan’s opinion support[s] the assessed mental limitations in the [RFC]. Specifically,
the [Plaintiff] is limited to unskilled and repetitive work with low stress, occasional contact with
supervisors and coworkers, and no contact with the general public.”
mischaracterizes the limitations identified in Dr. Greenspan’s report, however, since Dr.
Greenspan found that Plaintiff is “incapable of even ‘low stress’” and is markedly limited in her
ability to get along with co-workers. (See Tr. 379-80). Furthermore, the Appeals Council failed
to address the other limitations Dr. Greenspan found, including Plaintiff’s problems maintaining
concentration during the workday and Plaintiff’s need to be absent from work three times or more
per month. (See Tr. 5-6). Not surprisingly, the Appeals Council ignored the hypotheticals
including these limitations and stated only that it credited “the testimony of the [VE] regarding the
jobs that he identified that the claimant could perform in the national economy.” (Tr. 7). The
Appeals Council thus appears to have concluded that the ALJ simply misapplied the RFC at step
five. But the Appeals Council failed to consider whether the ALJ may have inadvertently omitted
from the RFC the additional limitations Dr. Greenspan identified.
Given that both the Appeals Council and the ALJ credited Dr. Greenspan’s report, the
failure to discuss those additional limitations renders this Court unable to conduct a meaningful
judicial review. Accordingly, the Court must remand this case for a determination of whether
Plaintiff’s RFC should have included the additional limitations identified by Dr. Greenspan and,
if so, whether jobs exist in significant numbers in the national economy for a person with that RFC.
The Appeals Council notes that “while Dr. Greenspan is a psychiatrist at the Bergen Regional
Medical Center where the claimant received treatment, the record contains treatment notes signed
by Marek Belz, M.D., and Manoj Puthiyathu, M.D., rather than Dr. Greenspan.” (Tr. 5-6). What
the Appeals Council fails to mention, however, is that Doctors Belz and Puthiyathu are cosignatories on Dr. Greenspan’s evaluation. (Tr. 380).
Because the Court finds that the Appeals Council’s decision is beyond meaningful judicial
review, the Commissioner’s disability determination is REMANDED for further consideration
consistent with this opinion. An appropriate order will follow.
s/ Madeline Cox Arleo
MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE
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