BARIK v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge William J. Martini on 10/21/19. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT Of NEW JERSEY
FARIDA BARIK,
Civ. No.: 18-9287
Plaintiff,
V.
OPINION
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
WILLIAM J. MARTINI. U.S.D.J.:
This matter comes before the Court on Plaintiff Farida Bank’s (“Plaintiff’) appeal of a
decision by Defendant ColmTiissioner of Social Security (“Defendant”) ruling her not disabled.
Plaintiffs brief makes clear that the issue presented for review is whether substantial evidence
supports the Administrative Law Judge’s (“AU”) “ruling that Plaintiff had the ability to
communicate in English.” P1. Br. at 1, ECF No. 15. For the reasons set forth below, the appeal
is DENIED.
I.
BACKGROUND
The facts relevant to this appeal are relatively narrow. Plaintiff filed for disability benefits
on August 14, 2013, alleging an onset date of November 30, 2012. Admin. Rec. (“AR”) at 154,
ECF No. 11. After receiving an unfavorable decision on her initial application and request for
reconsideration, Plaintiff requested a hearing before an AU. AR at 73-85, 96. The AU found
that despite severe impairments, Plaintiff was not disabled. AR at 19-32. The Appeals Counsel
found no reason to review the AU decision, making the AU’s decision the final appealable
order. AR at 1-7.
In finding no disability, the AU ruled that Plaintiff was “able to communicate in
English.” AR at 27. Plaintiff argues that ruling was not supported by substantial evidence and
instead, “[t]here is substantial evidence in the file that Plaintiff was unable to speak or understand
English and prefers to communicate in Bengali.” P1. Br. at 5. Thus, Plaintiff argues, she was
disabled by definition on her forty-fifth birthday under the Social Security Administration’s
(“SSA”) medical-vocational guidelines. Id.
II.
DISCUSSION
A.
Five-Step Sequential Analysis
The SSA has established a five-step evaluation process for determining whether a
claimant is entitled to benefits. 20 C.F.R. § 404.1520, 416.920. In the first step, the
Coimnissioner determines whether the claimant has engaged in substantial gainful activity since
the onset date of the alleged disability. Id. § 404.1520(b), 4 16.920(b). If not, the Commissioner
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moves to step two to 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, the Commissioner inquires in step three as to whether the impairment meets or
equals the criteria of any impainhient found in the Listing of ImpainTients. Id. Part 404, Subpart
P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive benefits (and the
analysis ends); if not, the Commissioner moves on to step four. Id. § 404.1520(d), 4 16.920(d).
In the fourth step, the Commissioner decides whether, despite any severe impainnent, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past relevant work. Id.
§ 404.1520(e)-tO, 416.920(e)-(f). The claimant bears the burden of proof at each of these first
four steps. At step five, the burden shifts to the Social Security Administration to demonstrate
that the claimant is capable of performing other jobs that exist in significant numbers in the
national economy in light of the claimant’s age, education, work experience, and RFC. Id.
§ 404.1520(g), 416.920(g); see Foitlos v. Comm ‘r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir.
2007) (citations omitted).
B.
Standard of Review
The Court has plenary review of legal issues. See Chandler v. Comm ‘r of Soc. Sec., 667
F.3d 356, 359 (3d Cir. 2011) (cleaned up). Findings of fact, on the other hand, will be affinned
if “there is substantial evidence to support such findings.” 42 U.S.C. § 405(g) & 1383(c).
Courts are not permitted to re-weigh the evidence or impose their own factual determinations.
Chandler, 667 F.3d at 359 (cleaned up). Instead, “substantial evidence” only requires “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
C.
Substantial Evidence for Finding of English Ability
Plaintiff contends that the AU’s determination that she could communicate in English
(without providing further explanation) was reversible error. P1. Br. at 5 (citing AR at 27).
Plaintiff points to various evidence of her inability to conmiunicate in English, including: (1) a
disability report, (2) the fact that Plaintiffs lawyers completed her application on her behalf,
(3) the use of a Bengali interpreter at the AU’s hearing, (4) the “Disability Determination
Explanation” prepared at the initial application and reconsideration levels, and (5) a case analysis
completed in 2014. Id. at 5-6.
While the evidence cited by Plaintiff could support a finding that she does not speak
English, the standard of review requires the Court to ask whether the AU’s finding was
supported by substantial evidence, not whether there is opposing substantial evidence. See
Johnson v. Comm ‘r of Soc. Sec., 497 F. App’x 199, 201 (3d Cir. 2012) (“[W]e will uphold the
AU’s decision even if there is contrary evidence that would justify the opposite conclusion, as
long as the ‘substantial evidence’ standard is satisfied.”).
Here, there is substantial evidence that Plaintiff was able to communicate in English.
Most significantly, Plaintiff testified as such. At the hearing, the AU said: “And I can tell
because you’re answering some of my questions that you do understand and speak a little bit of
English. Are you able to read and write English?” AR at 40. Plaintiff responded: “Yes, I do.”
AR at 41. Further, earlier in the hearing, despite the presence of a translator, when the AU told
Plaintiff “the issue before me is whether you are disabled,” Plaintiff herself responded “Yes, I
am.” AR at 38. Plaintiff responded to many more questions in English too. See AR at 41-43.
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While other evidence may support a contrary conclusion, there is undeniably “substantial
evidence” that Plaintiff could communicate in English. See Chandler, 667 f.3d at 359 (requiring
“relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”).
Given the standard of review, the Court will not reverse the AU’s decision to credit Plaintiffs
own testimony over descriptions of Plaintiffs language abilities in various reports. See Id.
D.
Jobs Available Given Plaintiffs Ability
Relatedly, Plaintiff argues the AU erred because he failed to account for (1) her difficulty
speaking and understanding English and (2) the vocational expert’s (“yE”) testimony that he
could not “come up with any jobs that should be appropriate” in response to a hypothetical
question posed by the AL AR at 58; P1. Br. at 7; P1. Reply at 2-3, ECF No. 17.
1.
Son, e
Difficulty Speaking and Understanding English Contptetety
As to difficulty speaking English, in posing hypothetical questions to the VE, the AU
noted “[w]e’ve seen from the hearing that she does have some difficulty speaking and
understanding English completely without assistance.” AR at 58. Plaintiff argues that “the AU
failed to acknowledge the fact that [Plaintiffs] limited ability to communicate in English would
impact her ability to work[, which is] a reversible and harmful error of law.” P1. Br. at 7.
One stray remark, in the context of hypothetical questions, does not render the AU’s
ultimate conclusion that Plaintiff could “communicate in English” erroneous. Therefore, the
AU did not err in failing to explicitly analyze a limited language ability in his decision. In
concluding Plaintiff could communicate in English, the AU cited 20 C.F.R. § 404.1564. That
provision explains that:
Because English is the dominant language of the country, it may be difficult for
someone who doesn’t speak and understand English to do a job, regardless of the
amount of education the person may have in another language. Therefore, we
consider a person’s ability to communicate in English when we evaluate what
work, if any, he or she can do.
20 C.F.R. § 404.1564(b)(5). As to ability to read and write, the provision states “[w]e consider
someone illiterate if the person cannot read or write a simple message such as instructions or
inventory lists.” Id. Therefore, implicit in the AU’s conclusion was that Plaintiff could
communicate in English sufficiently to perform a basic job, including reading and writing simple
messages. See id. As noted above, that conclusion is supported by substantial evidence. See
supra Part II.C. An off-the-cuff remark that Plaintiff had some difficulty understanding English
completely withoict assistance does not render the AU’s decision erroneous, particularly where
the statement was made during a hearing in which Plaintiff herself testified that she could
coiruriunicate in English. See AR at 58. The AU was free to conclude—as he did—that any
language difficulties would not hamper her ability to perform basic work. See AR at 27.
2.
Vocational Expert Testimony Regarding Available Jobs
At the hearing, in response to a hypothetical question, the VE testified:
Your Honor, I have some—in looking at the unskilled, sedentary occupational
base, with the requirement that would be the educational requirement or the
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reading and writing requirements I believe that you’re looking at for other
positions not in a production oriented setting
I don’t believe I’d be able to
come with any jobs that should be appropriate.
.
.
.
AR at 58. Plaintiff seems to argue that given the VE’s testimony, the AU erred in concluding
Plaintiff could still perform widely available jobs. P1. Br. at 6-7; Reply at 2-3.
Plaintiff ignores the fact that the VE’s testimony was in response to a series of
hypothetical questions posed by the AU. AR at 55-59. The hypothetical at issue assumed
Plaintiffs ability to communicate in English “would be limited.” AR at 5$. However, the AU
ultimately concluded Plaintiff could communicate in English. AR at 27. Therefore, the
hypothetical individual described in the AU’s question does not match the AU’s ultimate
conclusion regarding Plaintiffs abilities. See Id. Accordingly, the VE’s testimony that he could
not “come up with any jobs that would be appropriate” for the hypothetical individual does not
mean the AU erred in finding Plaintiff could work. AR at 58. As set forth in the AU’s decision,
given Plaintiffs residual functional capacity and ability to communicate English, Plaintiff could
work as a touch up screener, semi-conductor loader, or compact assembler. AR at 2$. The
AU’s hypothetical question, and the VE’s answer thereto, does not change that fact.
III.
CONCLUSION
For the reasons set forth above, Plaintiffs appeal of Defendant’s ruling that she is not
disabled is DENIED. An appropriate Order follows.
Date: October, 2019
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