HEWINS v. COMMISSIONER OF SOCIAL SECURITY

Filing 29

OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 11/24/2020. (km)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DONALD GERALD HEWINS,
Plaintiff,
Case No. 3:18-cv-3989
Magistrate Judge Norah McCann King

v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Donald Gerald Hewins for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.
Plaintiff appeals from the final decision of the Commissioner of Social Security denying that
application. After careful consideration of the entire record, including the entire administrative
record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil
Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court reverses the
Commissioner’s decision and remands the action for further proceedings.
I.

PROCEDURAL HISTORY
In July 2014, Plaintiff filed his application for benefits, alleging that he has been disabled

since August 31, 2013. R. 201–09. Plaintiff’s application was denied initially and upon
reconsideration. R. 99–108. Plaintiff sought a de novo hearing before an administrative law
judge. R. 109–10. Administrative Law Judge Denise Martin (“ALJ”) held a video hearing on
June 13, 2017, at which Plaintiff, who was represented by counsel, appeared and testified, as did
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a vocational expert. R. 33–64. In a decision dated August 9, 2017, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Social Security Act at any time from August
31, 2013, the alleged onset date, through the date of that decision. R. 15–28. That decision
became the final decision of the Commissioner of Social Security when the Appeals Council
declined review on January 24, 2018. R. 1–6. Plaintiff timely filed this appeal pursuant to 42
U.S.C. § 405(g). ECF No. 1. On August 3, 2018, Plaintiff consented to disposition of the matter
by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal
Rules of Civil Procedure. ECF No. 9. 1 On March 12, 2020, the case was reassigned to the
undersigned. ECF No. 28. The matter is now ripe for disposition.
II.

LEGAL STANDARD
A.

Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,
No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less
than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.

1

The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
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Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018
WL 1509091, at *4.
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
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Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter, 650 F.2d at 482. Absent such articulation, the Court
“cannot tell if significant probative evidence was not credited or simply ignored.” Id. at 705. As
the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.

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Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to
support an award of benefits, courts take a more liberal approach when the claimant has already
faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An
award is “especially appropriate when “further administrative proceedings would simply prolong
[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;
see Schonewolf, 972 F. Supp. at 290.
B.

Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the

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Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
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so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.

ALJ DECISION AND APPELLATE ISSUES
Plaintiff was 54 years old on his alleged disability onset date of August 31, 2013. R. 26.

He met the insured status requirements of the Social Security Act through June 30, 2019. R.
17. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since
his alleged disability onset date. R. 18.
At step two, the ALJ found that Plaintiff’s restless leg syndrome, depression, blepharitis,
and cluster headaches constitute severe impairments. Id.
At step three, the ALJ found that Plaintiff does not suffer an impairment or
combination of impairments that meets or medically equals the severity of any Listing. R. 18–
19.
At step four, the ALJ found that Plaintiff has the RFC to perform medium work subject
to various additional limitations. R. 20. The ALJ also found that this RFC does not permit the
performance of Plaintiff’s past relevant work as a probation and parole officer and a produce
clerk. R. 26.
At step five, the ALJ found that a significant number of jobs—i.e., approximately 1.5
million jobs as a cleaner; approximately 45,000 jobs as a laundry worker; approximately
150,000 jobs as a packager—exist in the national economy and could be performed by an
individual with Plaintiff’s vocational profile and RFC. R. 27. The ALJ therefore concluded
that Plaintiff was not disabled within the meaning of the Social Security Act from August 31,
2013, his alleged disability onset date, through the date of the decision. R. 27.
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Plaintiff disagrees with the ALJ’s findings at steps three and four and asks that the
decision of the Commissioner be reversed and remanded with directions for the granting of
benefits or, alternatively, for further proceedings. Plaintiff’s Brief, ECF No. 26. The
Commissioner takes the position that his decision should be affirmed in its entirety because
the ALJ’s decision correctly applied the governing legal standards, reflected consideration of
the entire record, and was supported by sufficient explanation and substantial evidence.
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 27.
IV.

DISCUSSION
Plaintiff argues, inter alia, that substantial evidence does not support the ALJ’s RFC

determination. Plaintiff’s Moving Brief, ECF No. 26, pp. 29–40. A claimant’s RFC is the most
that the claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). It is the ALJ who is
charged with determining a claimant’s RFC. 20 C.F.R. §§ 404.1527(e), 404.1546(c); see also
Chandler, 667 F.3d at 361 (“The ALJ—not treating or examining physicians or State agency
consultants—must make the ultimate disability and RFC determinations.”) (citations omitted).
When determining a claimant’s RFC, an ALJ has a duty to consider all the evidence. Plummer,
186 F.3d at 429. However, an ALJ need include only “credibly established” limitations.
Rutherford, 399 F.3d at 554; see also Zirnsak, 777 F.3d at 615 (stating that the ALJ has
discretion to include “a limitation [that] is supported by medical evidence, but is opposed by
other evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot reject
evidence of a limitation for an unsupported reason” and stating that “the ALJ also has the
discretion to include a limitation that is not supported by any medical evidence if the ALJ finds
the impairment otherwise credible”).

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Here, the ALJ determined that Plaintiff has the RFC to perform medium work with
certain additional limitations, as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform medium work as defined in 20 CFR
404.1567(c) involving work in environments in which he could avoid concentrated
exposure to moderate noise. He could perform unskilled, simple, routine, repetitive
work. He should not perform fast-paced work tasks or work with high production
quotas (e.g., factory or production work). He should not interact with the public,
but he could have brief and superficial interaction with the workers and supervisors.
R. 20.
Plaintiff argues that this RFC determination is not supported by substantial evidence
because, among other things, the ALJ failed to include a limitation for only occasional
interaction with supervisors, coworkers, and the public as provided for in the hypothetical
question posed to the vocational expert upon whose testimony the ALJ ultimately relied in
denying benefits. Plaintiff’s Moving Brief, ECF No. 26, pp. 33–40. Specifically, the ALJ asked
the vocational expert to assume an individual with Plaintiff’s vocational profile
who would be limited to medium work. He should avoid concentrated exposure to
noise and it should be an unskilled, simple, routing, repetitive job, with only
occasional interaction with supervisors, coworkers and the public and no fastpaced or high production quotas.
R. 57 (emphasis added). The vocational expert confirmed that the hypothetical person would not
be capable of performing Plaintiff’s past work. Id. After clarifying the noise level exposure as
moderate, the vocational expert testified that such an individual would be able to perform the
three jobs ultimately identified by the ALJ at step five, namely, cleaner, laundry worker, and
packager. R. 27, 57–58.
Plaintiff complains that the ALJ failed to include in the RFC ultimately found by her the
limitation of only “occasional” interaction with supervisors, coworkers, and the public; this
omission is significant, Plaintiff contends, because the term “occasional” means occurring from
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very little up to one-third of the time. Plaintiff’s Moving Brief, ECF No. 26, pp. 33–40 (citing,
inter alia, SSR 83-10 (defining “occasionally”)). Plaintiff goes on to argue, inter alia, that the
ALJ’s limitation in the RFC to only “brief and superficial” interaction with workers and
supervisors does not cure this omission because “brief and superficial” has a different meaning
than “occasional.” Id.
Defendant disagrees. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 27, p.
22. Defendant specifically contends that remand on this issue would be futile:
These limitations reflect the same level of interaction with coworkers and
supervisors. “Occasional” is defined as occurring from very little up to one-third of
the time. See SSR 83-10. A “brief and superficial” level of interaction would not
exceed one-third of the workday, or rise to “frequent” interaction (occurring from
one-third to two-thirds of the time). Therefore, in asking the VE to consider the
limitation of “only occasional interaction” with supervisors and coworkers, the ALJ
was presenting the same level of interaction with coworkers and supervisors
contained in the RFC finding. In short, the VE considered Plaintiff’s established
limitation related to coworkers and supervisors, and identified representative
occupations that Plaintiff still could perform. Remand to substitute “occasional” for
the phrase “brief and superficial” in the RFC would be futile, and would not change
the ultimate disability determination.
Id. at 22–23.
Defendant’s argument is not well taken. As a preliminary matter, Defendant offers no
authority for or evidence supporting his assertion that “occasional” interaction presents “the
same level of interaction” as “brief and superficial.” See id. Moreover, nowhere did the ALJ
explain what she meant by “brief and superficial” interaction. See R. 15–28, 57–64. Based on
this record, the Court declines to accept Defendant’s conclusory and post hoc rationalization. See
Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of Health & Human Servs., 730 F.3d 291, 305
(3d Cir. 2013) (“Our review must also be based on ‘the administrative record [that was] already
in existence’ before the agency, not ‘some new record made initially in the reviewing court’ or
‘post-hoc rationalizations’ made after the disputed action.”) (quoting Rite Aid of Pa., Inc. v.
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Houstoun, 171 F.3d 842, 851 (3d Cir. 1999)); Fargnoli, 247 F.3d at 44 n.7 (3d Cir. 2001)
(stating that a district court should not substitute its own independent analysis for reasoning not
mentioned by the ALJ) (citations omitted).
Although neither party cites to legal authority within the Third Circuit, and the
undersigned is unaware of any such authority on this point, other courts considering this issue
have determined that the term “occasional,” which refers to the frequency of the interaction, is
not the equivalent of the term “brief and superficial,” which refers to the quality of the
interaction:
Social Security Ruling 83–10 defines “occasionally” as “occurring from very little
up to one-third of the time.” 1983 WL 31251, at *5 (S.S.A. 1983). Logically,
“occasional” goes to the frequency of interaction. See id. As to “superficial,” there
is no such definition within Social Security Ruling 83-10. However, “superficial”
interactions describe the degree and the extent of interaction, because “[e]ven a job
that requires only occasional interaction could require an employee to engage in
prolonged or meaningful conversations during those few occasions.” Sanders v.
Astrue, 2012 WL 1657922, at *12 (D. Minn. Apr. 17, 2012). The Court agrees that
“superficial” aptly describes the quality of interaction. See Wartak v. Colvin, 2016
WL 880945, at *7 (N.D. Ind. Mar. 8, 2016) (concluding that “[o]ccasional contact”
goes to the quantity of time spent with the individuals, whereas “superficial
contact” goes to the quality of the interactions.); Sanders, 2012 WL 1657922, at
*12 (distinguishing “occasional” interaction and “superficial” interaction because
even a job that requires only occasional interaction could require an employee to
engage in prolonged or meaningful conversations during those few occasions);
Eveland v. Berryhill, 2017 WL 3600387, at *4 (N.D. Ind. Aug. 22, 2017) (finding
that the ALJ erred when the ALJ limited the plaintiff to “occasional” contact with
coworkers and supervisors when the expert opined that the plaintiff could engage
in “superficial” contact on an “ongoing basis”).
Greene v. Saul, No. 3:19-CV-00687-JD, 2020 WL 4593331, at *4 (N.D. Ind. Aug. 11, 2020); see
also Danielson v. Comm’r of Soc. Sec., No. 3:18-CV-84, 2019 WL 1760071, at *4 (S.D. Ohio
Apr. 22, 2019), report and recommendation adopted, No. 3:18-CV-84, 2019 WL 2011077 (S.D.
Ohio May 7, 2019) (“However, occasional and superficial are not coterminous. Instead,
‘[o]ccasional contact’ goes to the quantity of time spent with [ ] individuals, whereas ‘superficial
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contact’ goes to the quality of the interactions.”) (internal quotation marks and citations
omitted)); Midlam v. Berryhill, No. C17-5650, 2018 WL 2932134, at *2 (W.D. Wash. June 12,
2018) (finding, inter alia, that “[o]ccasional contact measures the frequency with which one
comes into contact with another. It does not measure depth of contact, meaning whether the
contact is superficial or not” and remanding action); Oakley v. Colvin, No. 15-CV-644, 2016 WL
4272136, at *9 (S.D. Ill. Aug. 15, 2016) (“Plaintiff argues that the limitation to occasional
contact does not adequately capture Dr. Cesare’s opinion that she should be limited to only
superficial contact. The Court agrees. Occasional describes frequency of interaction, while
superficial describes intensity or quality of interaction. They are not the same thing.”). This
Court finds the reasoning of these cases, which relies on the plain meaning of each word,
persuasive. Cf. Robinson v. Astrue, No. CIV.A. 07-1825, 2008 WL 5046337, at *6 (D.N.J. Nov.
21, 2008) (affirming where a doctor’s use of the phrase “at this time” “must not be misconstrued
to refer to the entire period of time Plaintiff was treated by Dr. Ruoff. The ALJ noted this
‘evaluation was not given retrospective effect.’ . . . This Court finds no basis to suggest intent to
the contrary and defers to the plain meaning of the phrase”).
Here, as previously noted, the ALJ posed a hypothetical question to the vocational expert
that included a limitation for “only occasional interaction with supervisors, coworkers and the
public.” R. 57. But the RFC ultimately found in the ALJ’s decision did not include this limitation
and instead included a limitation to, inter alia, “brief and superficial interaction with the workers
and supervisors.” R. 20. For the reasons discussed above, this Court concludes that the RFC
found by the ALJ therefore did not include all the limitations in the hypothetical question posed
to the vocational expert. Because the ALJ expressly relied on the vocational expert’s testimony
in response to this hypothetical question when finding that Plaintiff was not disabled because
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there exist other jobs that Plaintiff could perform, R. 27, 57–58, the Court cannot conclude that
this error was harmless or that substantial evidence supports the ALJ’s decision. This Court
therefore concludes that the decision of the Commissioner must be reversed, and the matter must
be remanded to the Commissioner for further consideration of these issues. 2
V.

CONCLUSION
For these reasons, the Court REVERSES the Commissioner’s decision and REMANDS

the matter for further proceedings consistent with this Opinion and Order.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.

Date: November 24, 2020

s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

Plaintiff asserts a number of other errors in the Commissioner’s final decision. Because the
Court concludes that the matter must be remanded for further consideration of Plaintiff’s RFC,
the Court does not consider those claims.
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