MORRIS v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 01/12/2018. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 17-757-KM
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
Ms. Cherice Morris brings this action pursuant to 42 U.S.C.
1383(c) (3) to review a final decision of the commissioner of Social Security
(“Commissioner”) denying her claims to Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C.
Supplemental Security Income (“SSI”), 42 U.S.C.
§ 40 1—34, and
§ 1381. For the reasons set
forth below, the decision of the Administrative Law Judge (“AW”) is
Ms. Morris seeks to reverse a finding that she did not meet the Social
Security Act’s definition of disability from June 17, 2011 to May 19, 2015. (P1.
Br. 1).1 Ms. Morris applied for DIB and 551 on February 28, 2013. (R. 11, 168-
Citations to the record are abbreviated as follows:
Administrative Record (ECF no. 5)
Brief in Support of Cherice Morris (ECF no. 10)
75). In both applications, she alleged disability beginning June 17, 2011. (R.
11, 168-75). These claims were denied initially on June 4, 2013, and upon
reconsideration on July 29, 2013. (R. 11, 114-19, 121-26). On August 2, 2013,
Ms. Morris submitted a written request for a hearing. (R. 11). On October 28,
2014, Ms. Morris appeared and testified at a hearing before AW Meryl L.
Lissek. (1?. 11-20, 29-67). Also in attendance was Ms. Morris’s mother, Ms.
Rhonda Morris. (1?. 11, 29). Ms. Morris was not represented by an attorney or
other representative at the hearing. (R. 11). On May 19, 2015, the AW issued
an unfavorable decision which found her “not disabled” for purposes of the
Social Security Act. (R. 11-20).
Ms. Morris sought review from the Appeals Council. (R. 1-6, 333-35). The
Appeals Council found that there were no grounds for further
Ms. Morris then appealed to this Court, challenging the AW’s determination
that she was not disabled from June 17, 2011 to May 19, 2015. (P1. Br. 1).
To qualify for DIB or SSJ, a claimant must meet income and resource
limitations and show that she is unable to engage in substantial gainful activity
by reason of any medically determinable physical or mental impairment that
can be expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C.
423(d)(1)(A), 1382, 1382c(a)(3)(A),(B); 20 C.F.R.
416.905(a); see lug v.
Comm’r Soc. Sec., 570 F. App3c 262, 264 (3d Cir. 2014); Diaz a Comm’r of Soc.
Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. The Five-Step Process and This Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.
This Court’s review necessarily incorporates a determination of whether the
AW properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
§ 404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. § 404.1520(c), 416.920(c). If the
claimant has a severe impairment, move to step three.
Step Three: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt.
404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high
level to identib’ clear cases of disability without further analysis.) If so, the
claimant is automatically eligible to receive benefits; if not, move to step four.
Id. § 404.1520(d), 4 16.920(d).
Step Four: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id. § 404.1520(e)—W, 416.920(e)—(fl. If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering her age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R. § 404.1520(g), 4 16.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits
will be denied; if not, they will be awarded.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the ALPs findings, as long as they are
supported by substantial evidence. Jones v. Bamhafl, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes u. Apfei, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
[I]n evaluating whether substantial evidence supports the AU’s
leniency should be shown in establishing the claimant’s
the Secretary’s responsibility to rebut it should
be strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
Reefer u. Bamhad, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
405(g)); Zimsak, 777 F.3d at 610-11 (“LW]e are
mindful that we must not substitute our own judgment for that of the fact
This Court may, under 42 U.S.C.
405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’rof Soc. Sec., 235 F. App’5c 853, 865-66 (3d Cir. 2007).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedworny, 745 F.2d at 22 1-22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AU’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adorno
Shalula, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
B. The AhJ’s Decision
AL] Meryl L. Lissek followed the five-step process in determining that
Ms. Morris was not disabled from June 17, 2011 (the alleged onset date) to May
19, 2015 (the date of her hearing). The ALPs findings may be summarized as
Step One: At step one, the AL] found that Ms. Morris had not engaged
in substantial gainful activity since June 17, 2011, the alleged onset date. (I?.
Step Two: At step two, the AL] determined that Ms. Morris had the
following severe impairment: cervical and lumbosacral spine impairment with
pain syndrome. (R. 13).
Step Three: At step three, the AL] found that Ms. Morris did not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1.
(R. 14). The AL] gave a one-sentence explanation: “Section 1.04 was
considered.” (R. 14).
Step Four: At step four, “[a]fter careful consideration of the entire
record,” the AL] found that Ms. Morris had the following RFC:
[T]he claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 4 16.967(b) except that
she cannot climb ladders or scaffolds, crouch or crawl. She can
occasionally climb stairs and ramps. She is able to do work that
can be learned in 30 days or less and that involves simple
instructions. She can have occasional contact with supervisors and
with the general public. She can work in proximity of coworkers
but not together with them. She can do work where the routine
does not change throughout the day.
(1?. 14-15). The AL] also determined that Ms. Morris was unable to perform her
past relevant work as a bus driver (Dictionary of Occupational Titles (“DOT”)#
913.463-010). (R. 18). The demands of that job exceed her RFC. (R. 18).
Step Five: At step five, the AW considered Ms. Morris’s age, education,
work experience, and RFC, as well as the Medical-Vocational Guidelines. (R.
18). The Medical-Vocational Guidelines are tables that set forth presumptions
of whether significant numbers of jobs exist in the national economy for a
claimant. 20 C.F.R. Pt. 404, subpt. P, app. 2. These presumptions vary based
on a claimant’s age, education, work experience, and work capability. Id. The
ALT determined that Ms. Morris has been able to perform jobs existing in
significant numbers in the national economy since June 17, 2011. (R. 18-19).
Relying on the opinion of a vocational expert (“yE”), the ALT identified several
representative jobs that Ms. Morris could perform despite her limitations: ticket
printer and tagger (DOT# 652.685-094), garment folder (DOT# 789.687-066),
and labeler (DOT# 920.687-126). (1?. 19). According to the yE, there are over
400,000 such jobs nationally. (R. 19).
Therefore, the AU
ultimately determined that Ms. Morris was “not
disabled” for purposes of the Social Security Act. (R. 19).
C. Analysis of Ms. Morris’s Appeal
Ms. Morris challenges AU Lissek’s determination that she has not been
disabled from June 17, 2011 to May 19, 2015. She alleges that the ALT failed
to elicit a valid waiver of the right to representation and, given Ms. Morris’s pro
se status, did not properly develop the record. (P1. Br. 12). She also claims that
the ALT committed errors at steps two, three, four, and five. (P1. Br. 9-36).
At step two, Ms. Morris argues that the ALT should have found obesity
and diabetes to be severe impairments, or at least explain why these
impairments are not severe. (P1. Br. 11, 26). At step three, Ms. Morris argues
that the “three words and a number” (i.e., “Section 1.04 was considered”)
analysis was not sufficient. (P1. Br. 22). Additionally, there are concerns that
the ALT did not consider the impact of obesity when determining if she met a
At step four, Ms. Morris contends that the limitations in the RFC are
unjustified. She argues that the mental limitations are unconnected to any
“severe” mental impairment, (P1. Br. 1 1), and the AM provides “no explanation”
for the conclusion that she can perform the demands of light work. (P1. Br. 34).
Furthermore, Ms. Morris claims that the AM never mentions or accepts any
findings other than those of the government’s examiner. (P1. Br. 23). At step
five, Ms. Morris argues that the VE testimony was inappropriate because it was
submitted as an interrogatory answer (and not as live testimony), that she did
not at the time appreciate the importance of the VE testimony, and that the
VE’s identity and credentials were not supplied by the AM or placed in the
record. (P1. Br. 34-35).
Waiver of Right to Representation
Ms. Morris alleges that the AM failed to elicit a valid waiver of the right
to representation and, given her pro se status, the AM did not appropriately
develop the administrative record.
a. Knowing and Intelligent Waiver
Though a claimant does not have a constitutional right to counsel at a
Social Security disability hearing, claimants are permitted to bring counsel to
their hearings. See Vivaritas a Comm’r of Soc. Sec., 264 F. App’x 155, 157 (3d
Cir. 2008) (citing 42 U.S.C. § 406; 20 C.F.R. § 404.1705). While counsel may be
useful in assisting a claimant, “[a] lack of counsel, itself, is not sufficient cause
for remand.” Bentley a Comm’rof Soc. Sec., No. 10-2714, 2011 WL4594290, at
*9 (D.N.J. Sept. 30, 2011).
AMs must ensure that claimants are given notice of their right to bring
counsel and claimants must waive their right knowingly and intelligently.
Vivaritas, 264 F. App’5c at 157-58 (citing Smith v. Schweiker, 677 F.2d 826, 828
(11th Cir. 1982)); see Yakley z’. Astnie, No. 12-857, 2013 WL 1010671, at
(D.N.J. Mar. 13, 2013) (noting that the Third Circuit has acknowledged the
Seventh Circuit’s “knowingly and intelligently” test without explicitly adopting
it). However, there is no rigid protocol an AM must follow when obtaining this
waiver. McGrew a Colvin, No. 13-cv-144, 2013 WL 2948448, at
June 14, 2013) (citing Vivaritas, 264 F. App5c at 158 n.1).
Should a claimant proceed without counsel, the AW has a heightened
duty to assist the claimant in developing the administrative record and “must
scrupulously and conscientiously probe into, inquire of, and explore for all the
relevant facts,” because a claimant unrepresented by counsel is not presumed
to have made his or her best case before the ALL Reefer v. Bamhart, 326 F.3d
376, 380 (3d Cir. 2003) (internal quotation marks omitted).
In this case, Ms. Morris received notification of her right to
representation in the administrative proceedings, obtained representation,
dismissed her attorney prior to the hearing, and then stated in writing that she
would represent herself at the hearing. (1?. 115-16, 124-28, 133, 136-47, 15960). The notification Ms. Morris received about representation informed her
where she could find help with her appeal. (1?. 115-16).
Ms. Morris claims that there are several problems with the AW’s
statements. She alleges that the AW pressured her to continue by noting that
rescheduling the hearing may take three months or longer; by stating that Ms.
Morris could appeal an unfavorable decision and obtain counsel at that time;
by suggesting that the ALT could help find her medical records (which is one of
the services an attorney would provide); and by stating that it is “perfectly
possible” to have a fair hearing without a representative. (P1. Br. 16-18).
Reproduced below is the relevant part of the ALT’s statement about
First let me tell you, Ms. Morris, that if you do not go ahead
today with the hearing, it will be probably at least three months
before you get another scheduled date for a hearing. Also it is
perfectly possible to have a fair hearing either with or without a
representative. That is a personal choice on your part.
Now what a representative could do for you, a representative
could help you to gather medical records and other documents in
support of your case. A representative can help you to organize
your case and could help you to present your case before an
administrative law judge.
There may be representatives who do not charge any money,
and since it seems that you qualify for 551 based on your
resources, you would probably qualify for free legal services as
well. Or you could get a representative or an attorney on a
contingency fee basis which means that they would only get paid
in the event that you won your case. And then they would get paid
usually a part of back benefits which is usually 25 percent of back
benefits or around $6,000. And if you do not win your case, they
would not get paid at all.
Now if you go ahead today with the hearing today, and if I
notice that there are documents missing from your file that I need,
then I can take steps through my office to get those records and
add them to your file....
Also if you go ahead today and you are not happy with the
decision that I make, you would be free to appeal that decision.
And you could get a representative at that time if you so choose.
(1?. 32-33 (paragraph breaks added)).
The AW then asked Ms. Morris if she had wanted to adjourn and obtain
So, first of all, Ms. Morris, did you have any questions
about getting a representative?
No, thank you.
Okay. Did you want to have a chance to consult with
your mother at all?
No, we consulted about it.
Okay. So do you want to proceed today, or do you
an adjournment. You do want to proceed[?j
I do want to proceed.
Okay. That’s perfectly fine.
Given the circumstances of this case, the AlA’s comments and
discussion were sufficient to elicit a knowing and intelligent waiver. First, the
AlA informed Ms. Mon-is of her rights and options. AlA Lissek told Ms. Morris
that she had a right to be represented by counsel, how counsel could help, and
how she could obtain counsel without paying (unless she won). These
comments are sufficiently similar to the AWs comments in Vivaritas, which
were found “ordinarily
sufficient to establish that a claimant waiving her
right to counsel during an AU
hearing acted knowingly and intelligently.” 264
F. App’* at 159. (In Vivaritas, the claimant had mental limitations that limited
her ability to knowingly and intelligently waive her rights. Id. This issue is not
present here because Ms. Morris has not alleged mental limitations such as low
intellectual functioning.) AU Lissek’s comments were sufficiently
distinguishable from Smith v. Schweiker, where the AU merely referenced a
document that explained a claimant’s right to counsel: “In the Notice of
Hearing which I sent to you, you were advised, were you not, that you had a
right to have an attorney if you wanted to, but you didn’t have to? You could
represent yourself.” 677 F.2d 826, 828 (11th Cir. 1982); see Vivaritas, 264 F.
App’* at 157-58 (citing Smith v. Schweiker, 677 F.2d at 828); Yakely, 2013 WL
1010671, at * 1 (finding that an AU asking if the claimant understood a letter
informing him of his right to counsel insufficient to obtain a knowing and
Second, it is acceptable for an AU to mention that an adjournment will
cause additional delay and that an AU can obtain additional medical records
that a lawyer would have obtained. See Vivaritas, 264 F. App’x at 157-59. Both
of these are true statements. It is true that a claimant may decide to forgo
obtaining counsel to avoid delay. But a claimant can obtain a fair hearing
without counsel. See Vivaritas, 264 F. App5c at 157 (citing 42 U.S.C.
C.F.R. 404.1705); Bentley, 2011 WL 4594290, at *9_to.
Third, a claimant like Ms. Morris who obtained and then dismissed that
counsel necessarily knows about her right to counsel (absent other
circumstances such as mental limitations). In this case, Ms. Morris hired
counsel and then dismissed her counsel prior to the hearing.2 (R. 31-32, 13647, 158-59, 160, 333). It defies logic that Ms. Morris, who does not allege
mental limitations, could obtain counsel that helped her prepare for her
hearing—but not realize that she could obtain counsel, have a lawyer help her
prepare for the hearing, and that she would not have to pay upfront costs for
legal services in this situation. She knew she could obtain counsel because she
had in fact obtained counsel.
Fourth, Ms. Morris stated that she wanted to proceed without an
attorney and that she consulted with her mother about this decision. (1?. 3334). She admits that she thought about waiving her right to counsel.
Ultimately, the ALT obtained a knowing and intelligent waiver from Ms.
Morris. Ms. Morris was aware of her rights and does not have a mental
limitation that would prevent her from exercising a knowing and intelligent
b. Developing the Administrative Record
If a claimant has knowingly and intelligently waived her right to
representation, the ALT has a duty to adequately develop the administrative
record. Rutherford v. Bamhart, 399 F.3d 546, 557 (3d Cir. 2005). The ALT
hearing is not an adversarial hearing. When a pro se claimant appears before
an AU, the ALT has a heightened duty to “scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.” Vivaritas, 264 F.
App’x at 157-58 (citing Reefer, 326 F.3d at 380). The burden of proving that the
Ms. Morris does not address in her brief why she dismissed her counsel and
she has provided conflicting explanations for what happened. In a September 18, 2014
letter, she wrote that “I dismiss the Law Office of Maurice J. Nadeau as my
representative and direct that office to cease all efforts in my claim.” (1?. 159). A
September 25, 2014 letter from Mr. Nadeau states that Ms. Morris dismissed her
counsel and will be representing herself. (R. 160). At the October 28, 2014 ALT
hearing, Ms. Morris admitted on the record that she had a representative and
dismissed that representative. (1?. 31-32). However, in a July 21, 2015 letter to the
Appeals Council, Ms. Moths’s current attorney wrote that her counsel “simply failed to
appear at the hearing.” (R. 333). The letter also stated that “[t]here is no evidence that
[counselj withdrew and no evidence that the claimant dismissed him. He simply didn’t
show up.” (1?. 333).
AW discharged this duty depends on whether a proper waiver was obtained: If
the AW does not obtain a knowing and intelligent waiver of counsel, the
burden is on the Commissioner to show that the AW adequately developed the
record. Id. at 158 (citing Skinner u. Astrue, 478 F.3d 836, 842 (7th Cir. 2007). If
the AW obtained a valid waiver, the burden is on the claimant to show that the
AW did not adequately develop the record. See Binion v. Shalala, 13 F.3d 243,
245 (7th Cir. 1994).
In this case, the AW obtained additional medical records; she added over
one hundred pages of evidence to the record. See (1?. 709-8 16). However, the
AW did not properly “probe into, inquire of, and explore for all the relevant
facts” as required. See Reefer, 326 F.3d at 380. These deficiencies will be
discussed in subsequent subsections.
The AU’s Step Two AnaLysis
At step two, Ms. Morris argues that the AW should have found diabetes
and obesity to be severe impairments, or at least explain why these
impairments are not severe. (P1. Br. 11, 26).
The AW briefly discussed Ms. Morris’s diabetes, stating that “the
claimant’s diabetes is well controlled with oral medication” and there was no
evidence of “neuropathy, retinitis or other associated abnormality.” (R. 14). The
AW cited medical records that provided substantial evidence for these findings.
(R. 422-40). Therefore, the AW had substantial evidence to find that Ms.
Morris’s diabetes was not a “severe” impairment.
However, the ALl did not even mention obesity at step two, even though
Ms. Morris’s physician, Dr. Patel, noted that she has “morbid obesity.” (R. 790).
Although a claimant bears the burden at step two, an ALl with a pro se
claimant has a duty to probe into the facts of the claimant’s case. See
Vivaritas, 264 F. App’x at 157-58 (citing Reefer, 326 F.3d at 380). The ALl
failed to do this by not even discussing Ms. Morris’s obesity. This must be
addressed on remand.
The AlA’s Step Three Analysis
At step three, Ms. Morris argues that the AU did not sufficiently analyze
whether she qualified under a listing, especially given the potential impact of
her obesity. The AU provided a one-sentence explanation for the step-three
analysis: “Section 1.04 was considered.” (R. 14). There are two significant
problems with this section: (a) the one-sentence statement does not permit
meaningful judicial review and (b) the statement does not consider a
combination of impairments or the potential effects of obesity.
(a) The AU’s step three analysis does not permit meaningful judicial
review. At step three, the AU must perform “an analysis of whether and why
[the claimant’s individual impairments], or those impairments combined, are or
are not equivalent in severity to one of the listed impairments.” Burnett a
Comm’rof Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000). The Third Circuit has
clarified that this “does not require the AU to use particular language or
adhere to a particular format,” but must “ensure that there is sufficient
development of the record and explanation of findings to permit meaningful
review.” Jones v. Bamhart, 364 F.3d 501, 505 (3d Cir. 2004). Regulations give
further guidance, providing that where a claimant has multiple impairments,
the AU should “compare [the claimant’sj findings with those for closely
analogous listed impairments. If the findings related to [the claimant’s]
impairment(s) are at least of equal medical significance to those of a listed
impairment, [the AWl will find that (the claimant’s] impairment(s) is medically
equivalent to the analogous listing.” 20 C.F.R.
§ 404. 1526(b)(2).
In this case, the AU did not satisfy the Third Circuit’s standard or the
regulations. Simply stating that “Section 1.04 was considered” does not
sufficiently demonstrate analysis or ensure that there is a sufficient record to
permit meaningful review by the Court.
(b) The AU’s step three statement also does not consider a combination
of impairments or the potential effects of her obesity. A12s have a duty to
consider whether a combination of impairments meets or medically equals a
listing. See 20 CFR
404. 1526(b)(3). If a claimant has more than one
impairment, the AW must “combine [the claimant’sl many medical
impairments and compare them to analogous Appendix 1 listings.” Torres v.
Comrn’rof Soc. Sec., 279 F. App’x 149, 152 (3d Cir. 2008).
Additionally, although obesity is no longer a listed impairment, AWs
must “consider [obesity’s] effects when evaluating disability” and recognize that
“the combined effects of obesity with other impairments can be greater than the
effects of each of the impairments considered separately.” Titles II & XVI:
Evaluation of Obesity, SSR O2-lp (S.S.A. 2002). Specifically, “obesity may
increase the severity of coexisting or related impairments to the extent that the
combination of impairments meets the requirements of a listing.” Id.
Obesity is also mentioned as a potential exacerbating factor in several
listings. For instance, Listing 1.00, concerning musculoskeletal disorders,
Obesity is a medically determinable impairment that is often
associated with disturbance of the musculoskeletal system, and
disturbance of this system can be a major cause of disability in
individuals with obesity. The combined effects of obesity with
musculoskeletal impairments can be greater than the effects of
each of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a
claim at other steps of the sequential evaluation process, including
when assessing an individual’s residual functional capacity,
adjudicators must consider any additional and cumulative effects
20 C.F.R. Pt. 404, subpt. P., app. 1,
“[I]t is the AU’s responsibility
to identify the relevant listed
impairment(s) and develop the arguments both for and against granting
benefits.” Tones v. Comm’r of Soc. Sec., 279 F. App’x 149, 151-52 (3d Cir. 2008)
(quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 n.2 (3d Cir. 2000))
(internal quotation marks omitted); see also SSR O2-lp. The AU ultimately
failed to appropriately consider whether Ms. Morris’s impairments, including
obesity, met or equaled a listing—particularly given the AM’s heightened duty
to probe into the facts of a pro se claimant’s case. See subsection II.C. l.a—b. A
proper step three analysis must be conducted on remand.
The AU’s Step Four Analysis
At step four, Ms. Morris contends that the limitations in the RFC are
unjustified. She argues that (a) the AM adds mental limitations that are
unconnected to any “severe” mental impairment, (b) the AM provides “no
explanation” for why she can perform the demands of light work, and (c) the
AM never “mentions or accepts any findings other than those of the
government’s examiner.” (P1. Br. 11, 23, 34). These arguments are unavailing.
(a) First, the AM notes that Ms. Morris has depression caused by daily
pain and that her pain “may have an emotional overlay.” (R. 15-16). The AM
thus limited her “to simple instructions” and provided for “social interaction
limitations.” (R. 14-18). These limitations are supported by substantial
evidence in the record, which is all that is required by the statute.
(b) Second, the AM provides substantial evidence for why Ms. Morris can
perform light work, given additional limitations. The AM notes that Ms. Morris
cooks, drives occasionally, goes to the mall and out to lunch, and attends
college classes five days a week. (R. 15). The orthopedic and consultative
examinations showed a normal gait without an assistive device and intact
neurological findings. (R. 447-55, 475-79, 709-14). Dr. Potashnik stated that
Ms. Morris could walk without an assistive device, squat, and walk on her
heels and tiptoes. (R. 709-10). Overall, this is substantial evidence for the AM
to find that Ms. Morris could perform light work with additional limitations.
(c) Third, AM Lissek addressed several physicians’ opinions when
developing the RFC. She discussed the treatment records of Dr. Dobrow at
Bergen Passaic Ambulatory Surgery Care, the consultative orthopedic
examination with Dr. Di Lallo, an independent medical examination with Dr.
Khanthan, an orthopedic consultative examination with Dr. Potashnik, and the
records from treating internist Dr. Patel. (R. 15-17). It is the AM’s duty to
address and discuss the record. The ALT discharged this duty by analyzing the
records from several physicians. It is not true that the ALT “never mentions or
accepts any findings other than those of the government’s examiner.” (P1. Br.
Ultimately, the step four analysis may change on remand once steps two
and three are considered anew. However, there is no independent error at step
four that would, in itself, warrant a remand.
The ALPs Step Five Analysis
Ms. Morris claims the ALT erred at step 5. She avers that (a) the ALT
inappropriately used post-hearing evidence from the VE; (b) the ALT did not
afford Ms. Morris an opportunity to respond and cross-examine the yE; (c) Ms.
Morris did not know the importance of the VE testimony; and (d) the record
does not identify the VE or her credentials. This argument is based on the fact
that the yE’s testimony was submitted, by mail, to Ms. Morris after the
hearing. The VE did not appear at the ALT hearing. (1?. 323-32).
(a) First, I assume, along with the Court in Wallace v. Bowen, that an
ALT can rely on such post-hearing evidence. In Wallace, the Third Circuit
“assume[d] without deciding, that the [Social Security] statute and the
regulations relied on by the Secretary permit the introduction of post-hearing
is frequently proffered by the claimant in support of his or
her claim.” Wallace, 869 F.2d at 19 1-92. Although the procedure is not ideal,
the ALT is permitted, under certain circumstances, to consider post-hearing
evidence from a yE.
(b) Second, the ALT did afford Ms. Morris an opportunity to cross
examine the VE in a supplemental hearing. It is a procedural error for an ALT
to send interrogatories, receive responses from a yE, and rely on those
responses as evidence without notifying a claimant or affording the claimant an
opportunity to respond. See Tommaney v. Comm’r of Soc. Sea, No. 12-4843,
2014 WL 3809477, at *6 (D.N.J. Aug. 1, 2014). The Third Circuit has ruled that
the Commissioner “may not rely on post-hearing reports without giving the
claimant an opportunity to cross-examine the authors of such reports, when
such cross-examination may be required for a full and true disclosure of the
facts.” Wallace, 869 F.2d at 19 1-92. Even in cases where the claimant was
notified of post-hearing responses, this court has remanded based on the lack
of opportunity to cross-examine. See Roberts v. Comm’r of Soc. Sec., No. 144289, 2013 WL2096611, at *7 (D.N.J. May 14, 2013). “[A]n opportunity for
cross-examination is an element of fundamental fairness of the hearing to
which a claimant is entitled under
the Social Security Act.” Id. (citing
Wallace, 869 F.2d at 19 2-92; 42 U.S.C.
However, in this case, AW Lessik mailed the VE interrogatories to Ms.
Morris and notified her of her right to “request a supplemental hearing at
which you would have the opportunity to appear, testify, produce witnesses,
and submit additional evidence and written or oral statements
The notice states that Ms. Morris will have a supplemental hearing if
requested, unless she would receive a fully favorable decision. (R. 324). This
distinguishes this case from Wallace, where the Third Circuit remanded a case
because post-hearing evidence was used and the claimant was not notified of
the opportunity to call for a supplemental hearing. 869 F.2d at 19 1-92 & n.4.
(c) Ms. Morris argues that she did not appreciate the importance of VS
testimony. (P1. Br. 35). It is entirely possible that an attorney would have
responded more effectively—but Ms. Morris knowingly and intelligently waived
her right to have an attorney present. Ms. Morris had the opportunity to have a
supplemental hearing and address any concerns with the VE’s written
testimony. It is clearly not ideal that Ms. Morris did not have the opportunity to
question the VS at the AW hearing, but Ms. Morris will be able to address any
VE testimony on remand.
(d) The AW did not include a record of VS Tanya Edghill’s credentials or
qualifications in the record or in the mailing to Ms. Morris. The Hearings,
Appeals, and Litigation Law Manual (“HALLEX”) of the Social Security
Administration, AWs “must (on the record): Ask the VS to confirm his or her
impartiality, expertise, and professional qualifications” and “Ask the claimant
and the representative whether they have any objection(s) to the VE testifying.”
HALLEX 1-2-6-174, Testimony of a Vocational Expert. However, “HALLEX
lack the force of law and create no judicially-enforceable rights.”
Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 859 (3d Cir. 2007) (citing
Hansen, 450 U.S. 785, 789 (1981)); see also Cartagena u. Comm’r
of Soc. Sea, No. 2:10-cv-5712-WJM, 2012 WL 1161554, at*5 (Apr. 9,2012)
(“HALLEX is a purely internal manual and as such has no legal force and is not
binding.” (citing Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000)).
Nonetheless, if the testimony of Tanya Edghill or another VE is
considered on remand, credentials should be put into the record. If she
chooses, Ms. Morris will have the opportunity to challenge the VE’s credentials.
For the foregoing reasons, I will REMAND to the agency for further
evaluation of Ms. Morris’s case.
An appropriate order accompanies this opinion.
Dated: January 12, 2018
United States District Ju
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