BERNISKY v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Claire C. Cecchi on 10/17/16. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH WILLIAM BERNISKY,
Civil Action No.: 2:15-cv-1284 (CCC)
COMMISSIONER OF SOCIAL SECURITY,
CECCHI, District Judge.
Before the Court is Plaintiff Joseph William Bemisky’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”) and
supplemental security income (“$51”) under
§ 2 16(i),
223(d), and 1614(a)(3)(A) of the Social
Security Act (“SSA”). The issue to be decided is whether the Commissioner’s denial of benefits
is supported by substantial evidence.
For the reasons set forth below, the decision of the
Administrative Law Judge (“AU”) is vacated, and the matter is remanded for further proceedings
consistent with this Opinion.
Plaintiff applied for DIB and SSI on March 14,2011, alleging disability as of June 1, 200$.
(Tr.’ at 10). The application was denied in April 2012. (Id.) On August 9, 2013, a hearing was
held before AU Dennis O’Leary. (Id.) AU O’Leary issued a decision on October 1, 2013 finding
Plaintiff was not disabled, as defined by the SSA. (Id. at 17 (citing 20 C.F.R.
416.920(f))). Plaintiff requested review of the decision and the Appeals Council denied the request
on January 13, 2015. (Tr. at 1). On February 1$, 2015, Plaintiff instituted this action. (ECF No.
Plaintiff filed a subsequent disability application on August 15, 2015 and was granted
permanent disability as of that date. (Brief in Support of Plaintiff (“P1. Br.”) ECF No. 10, at 10).
Plaintiff was born on May 9, 1964. (Tr. at 59). He currently lives with his father and
grandmother. (Id. at 14). Plaintiff testified his daily activities included grocery shopping and
running errands. (Id.) Since 1991, Plaintiff has held a number of sales positions in the trucking
and logistics industry. (j at 208). Plaintiff described these positions in the following ways:
“business development of major accounts and supervision of private fleets,” “obtained, retained,
and managed trucking accounts, revenues, and profit margins for clients in the NY-NJ metro
region,” and “traveled extensively with company car to see customers, entertain, conduct sales,
presentations, and represent the company.” (Id. at 208-2 12).
In 2005, Plaintiff injured his leg and underwent corrective surgery.
alleged he has had chronic knee pain since this injury.
(I at 14). Plaintiff
( at 15). Plaintiff testified he had
“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 6).
difficulty driving because he could not sit in one position for too long, needed to pull over to take
breaks, and he did not feel he was a safe driver. (Id. at 30-3 1). Plaintiff testified that after his
injury, he was hired by two companies, and was fired from each because he was not able to drive
to the office. (Id. at 13-14).
Plaintiff also has a history of back pain. (j at 14). Treatment records from 2006 indicate
Plaintiff had a full range of motion and negative straight leg raise testing. (j) Plaintiff returned
to the same doctor a few weeks later and reported his pain had gotten worse, and he was no longer
able to work. (Id.)
In 2013, Dr. Srinivas Mendu reviewed evaluations of Plaintiff by various orthopedic
specialists. (Id. at 16). Dr. Mendu reported a knee specialist diagnosed Plaintiff with a lateral tilt
and chondromalacia, and opined Plaintiffs condition had plateaued with a permanent disability to
his knee. (Id.) Dr. Mendu also reported Plaintiff would have difficulty with prolonged sitting,
standing, and repetitive bending. (4j
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.
and 1323(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.
Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 201 1); 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 Cir.
1978) (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 1011587, 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 of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranfi v. 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.”
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.
§S 423(d)(2)(A), 1382c(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, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 452, 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), 1382(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 1 (the “Listings”). If it is, this results in a presumption of disability. j4 If the
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 ALl must determine whether there is other work in the national economy the
plaintiff can perform.
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.
§ 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, 228 F.3d at 263. Neither party bears the burden at step three.
Rh at 263 n.2.
Summary of the AU’s Findings
At step one, the AU found Plaintiff met the insured status requirements of the S$A and
had not engaged in substantial gainful work activity since the onset date of the alleged disability.
(Tr. at 12). At steps two and three, the AU found Plaintiffs impairments of “discogenic back
disorder” and “sequelae of an old knee injury” were “severe” but not severe enough to meet, either
individually or in combination, any of the impairments listed in 20 C.F.R.
§ 4014, Subpart P,
Appendix 1. (Id.at 12-13).
The ALl concluded Plaintiff had the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R.
§ 404.1567(a) and 416.967(a), with the exceptions that
Plaintiff “should be able to alternate sitting/standing every half hour,” and “the work should
involve only local driving.” (ç at 13).
To reach this conclusion, the ALl considered all of Plaintiffs symptoms and their
consistency with the evidence. Specifically, the AU considered Plaintiffs work history and
reported daily activities.
(Id. at 13-14).
The AU found Plaintiffs statements of intensity,
persistence and limiting effects of his impairments were not entirely credible.
( at 14). The
considered Plaintiffs knee injury in 2005 and that Plaintiff had not followed the
recommended course of treatment. (Id. at 14-16). The AU also considered various doctors’
reports regarding Plaintiffs knee and back pain. (j)
At step four, the ALl found Plaintiff capable of performing past relevant work as a sales
representative as it is normally performed in the national economy.
(I at 16).
Plaintiffs primary argument is that the ALl mischaracterized his past work experience.
(P1. Br. at 11). Plaintiff suggests that because he traveled often in his past work, the position must
have required at least light exertion. (P1. Br. at 10). Further, Plaintiff argues “the AU introduced
‘transferable skills’ into his questioning of the yE,” which is a concept “available only at step five
of the sequential evaluation.”2 (P1. Br. at 11).
At step four, an ALl must determine if a plaintiff has the capacity to perform past relevant
work. See 20 C.F.R.
4 16.920(e). To make this determination, “the AU often seeks advisory
testimony from a vocational expert. In addition, the AU will generally consult the Dictionary of
Occupational Titles (DOT), a publication of the United States Department of Labor that contains
descriptions of the requirements for thousands of jobs that exist in the national economy
Bums v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).
“An individual retains the capacity to perform her past relevant work when she can perform
the functional demands and duties of the job as she actually performed it or as generally required
by employers in the national economy.” Malloy v. Commr of Soc. Sec., 306 F. App’x 761, 76566 (3d Cir. 2009). In this case, VE Jackie Wilson listened to Plaintiffs testimony and reviewed
applicable portions of the record. (Tr. at 52). The VE classified Plaintiffs past work experience
as “sales manager,” DOT #163.167.018, which “falls within the sedentary exertional range.” (Id.
at 53). The VE testified that the position as actually performed by Plaintiff required light exertion
In his Statement of Contention Pursuant to Rule 9.1, Plaintiff makes the following additional
arguments: (1) the AU does not mention six medical exhibits covering the years of 200$ —2013,
(2) the ALl improperly rejected Dr. Mendu’s opinion, (3) “[t]he step three listing analysis
compares no impairment with the element of any listing and combines no impairments for a
discussion of medical equivalence,” and (4) the RFC is not supported by substantial evidence.
(ECF. No. 7). These arguments are not explained or even mentioned in Plaintiffs subsequent
because he often traveled and lifted supplies. (Id.) The VE testified that an individual with
Plaintiffs RFC would be able to perform his past position as a sales manager as the duties are
actually described in the DOT. (Id. at 54).
At step four, the AU found Plaintiff was “capable of performing past relevant work as a
17) (emphasis added). The AU relied upon the VE who “testified
that there were transferable skills to ‘inside sales,’ same job without sales calls,” and found
Plaintiff was “able to perform [the position] as it [was] normally performed.” (RI.)
Plaintiff argues his past occupation should be characterized as a traveling salesman or a
sales service promotor because he traveled extensively. (P1. Br. at 10, 12). Under the substantial
evidence standard of review, the issue is whether sufficient evidence reasonably supports the
ALl’s analysis, not whether the evidence could support a different finding. See Logan v. Colvin,
No. 14-4571, 2015 WL 5722391, at *7 (D.N.J. Sept. 29, 2015) (finding “[t]he role of the District
Court in reviewing an ALl’s denial of disability benefits is not to reweigh the evidence presented,
but instead to determine whether the AU made a decision supported by substantial evidence”).
Thus, the Court will consider if substantial evidence supports the ALl’s finding.
The Court cannot discern, and the Defendant does not identify, evidence in the record
which supports the AU’s conclusion at step four. The VE testified Plaintiffs prior work was
defined as a sales manager position, rather than as a sales representative position, as the AU
appears to have concluded. (Tr. at 53). The DOT describes a sales manager position as sedentary
work, as the VE testified. (Id.) On the other hand, there are over one hundred entries for “sales
representative” in the DOT, and each relevant number defines the position as one of light exertion.
See, e.g., U.S. Dep’t of Labor, Dictionary of Occupational Titles,
(4th ed. 1991). Therefore, it is unclear what evidence the ALl relied upon, and to what extent the
VE’s testimony was considered, in his decision at step four.
Moreover, the AU’s analysis of transferable skills at step four precludes meaningful
review. See Hutchins v. Sullivan. 986 F.2d 1427 (10th Cir. 1993) (“The regulations make it
abundantly clear that vocational factors such as age and transferable skills do not even come into
play unless and until it is determined that the claimant cannot do past relevant work.”) (citing 20
The Court remands for the AU to develop the record as to Plaintiffs prior
occupation and Plaintiffs ability to perform such work.
F or the foregoing reasons, the Court will vacate the AU’s decision and remand this case
for further administrative proceedings consistent with this Opinion.
An appropriate order
accompanies this Opinion.
DATED: October 17, 2016
CLAIRE C. CECCHI, U.S.D.J.
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