BELTRAN v. COMMISSIONER OF SOCIAL SECURITY
Filing
19
LETTER OPINION & ORDER that the Commissioner's final decision is REVERSED and REMANDED. The Clerk is directed to close this matter, etc. Signed by Judge John Michael Vazquez on 1/30/18. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF
JOHN MICHAEL VAZQUEZ
UNITED STATES DISTRICT
JUDGE
FRANK R. LAUTENBERG
POST OFFICE AND
COURTHOUSE
2 FEDERAL SQUARE,
ROOM 417
NEWARK, NJ 07102
973-297-4851
January 30, 2018
VIA ECF
LETTER OPINION AND ORDER
Re:
Leslie Krok-Parrinello v. Nancy A. Berryhill, Acting Commissioner of Social
Security
Civil Action No. 15-7948
Dear Litigants:
Plaintiff Leslie Krok-Parrinello (“Plaintiff”) appeals the final decision of the
Commissioner of Social Security (“Commissioner”), which denied her application for disability
insurance benefits (“DIB”). The Commissioner asks that the Court remand the matter. Plaintiff
does not object to the remand, but requests that, among other things, the Court order the
Commissioner to conduct another hearing on remand. For the reasons that follow, the Court grants
the Commissioner’s motion.
Pursuant to the Social Security Act, Plaintiff filed a Title II application for DIB on May 9,
2013. Plaintiff alleged disability beginning July 1, 2003. Tr. at 13. 1 Plaintiff’s date of last insured
was December 31, 2008, meaning Plaintiff had to prove that she was disabled on or before that
date. Id. On April 23, 2015, the Administrative Law Judge (“ALJ”) held a hearing. Id. at 34.
Plaintiff was represented by counsel (although not the same counsel who currently represents
Plaintiff) at the hearing. At the hearing, Plaintiff testified, as did a vocational expert. Id. at 38-71.
Although the ALJ asked Plaintiff’s counsel if she (counsel) wished to question the expert, counsel
declined. Id. at 72.
Following a hearing, the ALJ denied Plaintiff’s claim in a written decision dated on June
19, 2015. Id. at 13-19. The ALJ found that Plaintiff could perform her past relevant work. Id. at
18-19. Plaintiff appealed the decision to the Appeals Council of the Social Security
1
The administrative record is found at D.E. 9. For convenience of the parties, the Court refers to
the actual transcript (“Tr.”) pagination.
Administration, but the Appeals Council denied review. Id. at 1-3. As a result, the ALJ’s opinion
became the final decision of the Commissioner for purposes of appeal. Plaintiff then sought review
in this Court.
By way of letter dated November 22, 2017, D.E. 16, Plaintiff’s current counsel requested
that the Commissioner consider a voluntary remand and provided the reasons for the request.
While the Commissioner agreed to remand the matter, the parties could not agree as to the scope
of the remand. The Commissioner offers a remand in which the Commissioner, by way of the
Appeals Council, would instruct the ALJ “to further evaluate Plaintiff’s claim, including further
evaluation of the Commissioner’s listed impairments.” D.E. 17 at 1. In addition, the ALJ “will
be instructed to take any further action necessary to complete the administrative record, including
holding a new hearing if warranted by the facts, and issue a new decision concerning Plaintiff’s
claim for disability benefits.” Id. Thus, pursuant to the Commissioner’s request, Plaintiff may
receive a new hearing.
While agreeing that remand is appropriate, Plaintiff urges the Court to order a new hearing.
D.E. 18. In addition to unnecessary pejorative descriptions (for example, the “disastrous nature of
the administrative decision” and “the decision is indefensible”), Plaintiff argues that a new hearing
is required because the vocational expert’s testimony at the initial hearing “was never subjected to
cross[-]examination by plaintiff’s former attorney.” Id. at 2. Plaintiff would also like to testify
and call her treating physician at a new hearing. Id.
Plaintiff also points to other numerous, alleged errors in the ALJ’s decision. Id. at 1-2. As
a result, Plaintiff asks that on remand the following occur: (1) reconsideration of certain conditions
that Plaintiff has, (2) a comparison of each severe impairment, alone and in combination; (3)
reconsideration of the treating physician’s residual functional capacity (“RFC”) finding; and (4) a
function-by-function comparison between Plaintiff’s RFC and her past work. Id. at 2.
42 U.S.C. § 405(g) provides in part as follows:
Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party . . .
may obtain a review of such decision by a civil action . . . . Such
action shall be brought in the district court of the United States for
the judicial district in which the plaintiff resides[.] . . . The court
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. The findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence[.]
. . . The court may, on motion of the Commissioner of Social Security
made for good cause shown before the Commissioner files the
Commissioner's answer, remand the case to the Commissioner of
Social Security for further action by the Commissioner of Social
Security, and it may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a
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showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the
record in a prior proceeding[.] . . . The judgment of the court shall
be final except that it shall be subject to review in the same manner
as a judgment in other civil actions. . . .
(Emphases added). See also Powell v. Chater, 959 F. Supp. 1238, 1246 (N.D. Cal. 1997);
Macchiera v. Shalala, 892 F. Supp. 427, 432 (N.D.N.Y. 1995).
As noted, this matter concerns the scope of the remand order, as both parties agree that a
remand is appropriate. Thus, the common issues on appeal in a Social Security Disability case are
not present. 2 The Court denies Plaintiff’s request for a mandatory new hearing for the following
reasons. Many of Plaintiff’s requests can be performed by a review of the record. Plaintiff’s
request for reconsideration of certain conditions, a comparison of each severe impairment,
reconsideration of the treating physician’s residual functional capacity (“RFC”) finding, and a
function-by-function comparison can all be done by reviewing the relevant evidence in the record.
Moreover, while Plaintiff requests an opportunity to testify at a new hearing and to call her treating
physician, Plaintiff did testify at length during her initial hearing. And Plaintiff has failed to
indicate what additional testimony she would provide on remand. As noted, Plaintiff has to prove
that she was disabled by December 31, 2008, so her testimony in 2015 should have encompassed
the necessary time frame. Likewise, Plaintiff has failed to explain the substance or necessity of
her treating physician’s testimony.
In addition, Plaintiff was represented by counsel during her initial proceedings. While
Plaintiff now points out that her first attorney did not cross-examine the vocational expert, Plaintiff
again fails to indicate the actual questioning that should have been performed. Finally, the Court
is not precluding a new hearing on remand; instead the Court is not mandating one. Given
Plaintiff’s failure to explain with any specificity as to why a new hearing is warranted, the Court
determines that the decision is best left to the discretion of the ALJ. Plaintiff’s counsel will have
an opportunity to convince the ALJ as to the necessity of a new hearing.
For the foregoing reasons, and for good cause shown,
2
Usually, the issue on appeal is whether the Commissioner decision was supported by substantial
evidence although purely legal issues are subject to plenary review. Matthews v. Apfel, 239 F.3d
589, 591 (3d Cir. 2001). An ALJ’s findings, including credibility determinations, must be upheld
if they are supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (citation and internal quotation marks
omitted). Such evidence is less than a preponderance but more than a mere scintilla. Id. The
Court reviews the record as a whole to determine whether an ALJ’s finding is supported by
substantial evidence. Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (citation omitted). In
this matter, both parties appear to agree that the ALJ did not conduct the necessary analysis and/or
consider the relevant evidence when rendering her decision.
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It is on this 30th day of January, 2018, hereby
ORDERED that the Commissioner’s final decision is REVERSED and REMANDED;
and it further
ORDERED that on remand, the Commissioner shall further evaluate Plaintiff’s claim,
including
1. further evaluation in light of the Commissioner’s listed impairments;
2. taking any further action necessary to complete the administrative record, including
holding a new hearing if warranted; and
3. issuing a new decision concerning Plaintiff’s claim for disability benefits; and it is
further
ORDERED that the Clerk’s Office shall close this matter.
_s/ John Michael Vazquez _______
JOHN MICHAEL VAZQUEZ
UNITED STATES DISTRICT JUDGE
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