TAWES v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

OPINION. Signed by Chief Judge Jose L. Linares on 2/14/2019. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL TAWE$,

Civil Action No.: 17-6549 (JLL)

Plaintiff,

OPINION

V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, Chief District Judge.
This matter comes before the Court by way of the Commissioner of Social Security’s
motion to remand Plaintiff Michael Tawes’ appeal of the Commissioner’s final decision denying

him social security benefits. (ECF No. 18). Plaintiff has opposed the Commissioner’s motion,
and instead tirges the Court to reverse the decision of the Commissioner. (ECF No. 19). For the
reasons set forth below, the Court reverses the decision of the Commissioner.
I.

BACKGROUND’

Plaintiff suffered a traumatic brain injury in 2005. He applied for and received social
security benefits after the accident until about 2010 or 2011, when he inherited between $70,000

and $80,000 after his sister passed away. (R. at 46). According to Plaintiff, he reported this
inheritance to the Social Security Administration, which cut off his benefits due to the influx of

cash. (R. at 46). That money is now gone, and Plaintiff has reapplied for social security benefits.

“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 9 through
9-8.

On August 6, 2013, Plaintiff filed an application for supplemental social security

income

(“$51”) based on his continuing disabilities resulting from the 2005 accident. (R. at 14$). The
claims were denied at the initial level on November 19, 2013, and again at the reconsideration
level on March 3, 2014. (R. at 85, 92). Plaintiff then filed a request for a hearing before an
administrative law judge (“AU”). (R. at 95). On November 24, 2015, Plaintiff testified at a
hearing before AU Dma R. Loewy. (R. at 36). AU Loewy denied Plaintiffs claim at step five,
finding that Plaintiff could perform jobs that exist in significant numbers in the national economy.
(R. at 30—31). Plaintiff sought review of AU Loewy’s decision from the Appeals Council. (R. at
144). The Appeals Council denied Plaintiffs request for review on July 25, 2017. (R. at 1).
Plaintiff then filed an appeal of the Commissioner’s final decision on August 30, 2017.
(ECF No. 1). After the parties filed their statements of contention pursuant to Local Civil Rule
9.1, and after Plaintiff filed his moving brief, the Commissioner moved to remand this case to the
Commissioner for further analysis. (ECF No. 1$). In her motion to remand, the Commissioner
informs the Court that the Appeals Council had agreed to accept a voluntary remand of the case
“to further evaluate Plaintiffs Rf C and specifically to address the issue of his post-accident hand
dorninancy.” (ECF No. 18-I at 4). Plaintiff declines to accept the Commissioner’s voluntary
remand, and instead argues that there is adequate evidence in the record for this Court to reverse
the Commissioner’s decision with a direction to award 551 rather than remand this action for

further proceedings. (ECF No. 19).
II.

STANDARD OF REVIEW

This Court must affirm an AU’s decision if it is supported by substantial evidence. See 42
U.S.C.

§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Ferales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. 11cc/dee, 727 F.2d 64, 70 (3d Cir.
1 984). However, this Court may not “weigh the evidence or substitute its conclusions for those of
the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Consequently, this
Court may not set an AU’s decision aside, “even if [it] would have decided the factual inquiry
differently.” flartranflv. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
“Despite the deference due to administrative decisions in disability benefit cases, ‘appellate
courts retain a responsibility to scrutinize the entire record and to reverse or remand if the
[Commissioner]’s decision is not supported by substantial evidence.” Morales v. Apfl, 225 F.3d
310, 317 (3d Cir. 2000) (quoting Smith v. Califrmno, 637 F.2d 968, 970 (3d Cir. 1981)). Reversal—
rather than remand—is appropriate when “the administrative record of the case has been fully
developed and when substantial evidence in the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Id. at 320 (quoting Podedworny v. harris, 745 F.2d 210, 222
(3d Cir. 1984)).
III.

ANALYSIS

Under the Social Security Act, the Social Security Administration is authorized to pay
Social Security Insurance to “disabled” persons. 42 U.S.C.

§ 1382(a). A person is “disabled” if

“he is unable 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.

§

1382c(a)(3)(A). A person is unable to engage in substantial gainful activity when his physical or
mental impairments are “of such severity that he is not only unable to do his previous work but

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cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C.

§ 1382c(a)(3)(B).

As the parties agree that the AU erred at in her Rf C determination and at step five, the
Coirt need not explain the full five-step sequential analysis that the AU must perform when

making a finding as to a claimant’s disability. Rather, in this case, the dispute is whether reversal
or remand is appropriate, so the Court’s task is to determine whether there is substantial evidence
in the record indicating that Plaintiff is disabled.

The AU determined that PlaintifPs RFC was limited to “frequent feeling with the left
upper extremity, and occasional handling and fingering with the left upper extremity,” and that
pursuant to that Rf C, Plaintiff must avoid “all exposure to hazardous machinery

.

.

.

or operational

control of moving machinery.” (R. at 25). Then at step five, after being asked by the vocational
expert for clarification, the AU informed the vocational expert that Plaintiff has “frequent use of
his dominant hand and occasional use of non-dominant hand.” (R. at 53). Thus, based on the
understanding that Plaintiff had use of his dominant hand, the vocational expert determined that
there were several jobs available to Plaintiff that required frequent use of one’s dominant hand and
only occasional use of one’s non-dominant hand. (R. at 53). Thesejobs included: final assembler,
laminator I, and dowel inspector. (R. at 53—54).
The Commissioner does not dispute that Plaintiff has met his burden at steps one, two, and
four, thus shifting the burden of proof that Plaintiff is not disabled to the Commissioner at step
five. Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). This Court finds that the Commissioner
has not carried her burden here. First. the record establishes that Plaintiff was left hand dominant

prior to his injury. For example, he testified that he was “left handed [his] whole life,” but that he
had to start using his right hand more after the accident, because his left hand tremors too much to

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use it. (R. at 40). Dr. Alexander Hoffman, who examined Plaintiff on behalf of Hudson County,
also determined that Plaintiff was normally “left hand dominant, but

...

has had some problems

with that hand since he had the accident.” (R. at 26$). Thus, the AU incorrectly determined that
Plaintiff had “frequent use of his dominant hand and occasional use of non-dominant hand,” (R.
at 53), when in fact, the opposite is true.
Additionally, the Commissioner’s RFC determination relegated Plaintiff to unskilled
sedentary work. (R. at 25). Plaintiff correctly points out that the Commissioner’s

own

policy

statements indicate that the AU’s determination regarding Plaintiffs ability to perform jobs
available in the national economy does not match tip with the Commissioner’s own understanding
of those jobs. For example, SSR 96-9P states that “[m]ost unskilled sedentary jobs require good
use of both hands and the fingers

Any significant manipulative limitation of an individual’s

ability to handle and work with small objects with both hands will restdt in a significant erosion
of the unskilled sedentary occupational base.” 1996 WL 374185, at

*$

(1996). The Conrmissioner

has also concluded that individuals who have lost the use of an upper extremity “would generally
not be expected to perform sedentary work because most unskilled sedentary jobs require good
use of both hands,” SSR 83-12, 1983—1991 Soc. Sec. Rep. Serv. 36, at 4 (1983), and that “[a]s a
general rule, limitations of fine manual dexterity have greater adjudicative significance—in terms
of relative numbers of jobs in which the function is required—as the person’s exertional RFC
decreases, [and thus the] loss of fine manual dexterity narrows the sedentary and light ranges of
work much more than it does the medium, heavy, and very heavy ranges of work,” SSR 85-15,
1983—1991 Soc. Sec. Rep. Serv. 343, at 7 (1985). Even if the AU’s determination that Plaintiff
had only lost full use of his non-dominant hand were correct, her analysis of the jobs available to
Plaintiff was in conflict with the Commissioner’s own guidelines. The AU’s failure to abide by

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the agency’s own guidelines is made worse by the fact that Plaintiff has limited use of his dominant
hand.
The disconnect between the AU’s finding that there is other work available to Plaintiff
and the Commissioner’s own guidelines is further evidenced by the jobs that the ALl
recommended. A Final Assembler 713.687-018, for example, “[a]ttaches nose pads and temple
pieces to optical frames, using handtools: Positions parts in fixture to align screw holes [and,
i]nserts and tightens screws, using screwdriver.” DOT 713.687-018, 1991 WL 679271. It does
not require a great logical leap to conclude that someone with a partially disabling tremor in his
dominant hand would not be able to perform this job adequately.

Additionally, the ALl

recommended Laminator as another job; however, this job requires Plaintiff to “press[] button to
start conveyor and heating elernents[, t]urn[] knob to adjust distance between presser rollers{,
p]lace[] aligned parts on conveyor leading to machine that laminates parts[, and remove] parts
from machine and tie[] parts into bundles for further processing.” DOT 690.685-258, 1991 WL
678561. Such ajob description conflicts directly with the AU’s RfC determination that Plaintiff
“must avoid

.

.

.

operational control of moving machinery.” (R. at 25).

As such, this Court finds that there is substantial evidence in the record to reverse the ALl’s
determination with an award of benefits. Plaintiff was previously found to be disabled by the
Social Security Administration and had received benefits until he became financially disqualified.
Plaintiff has been seeking to reinstate these benefits for five and a half years now. The Court is
hesitant to further delay the resolution of this matter. The record is fully developed, unlikely to
change, and contains substantial evidence indicating that Plaintiff is disabled. Such circumstances
support reversal with an award of benefits. Morales, 225 F.3d at 320.

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IV.

CONCLUSION

For the reasons stated above, the Court reverses the decision of the AU and remands this
case to the Commissioner to award Plaintiff the SSI benefits he is due. An appropriate Order
accompanies this

Opinion.

DATED: February JO19
JOS L UINARES
Jude United States District Court

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