BACHAN v. BERRYHILL

Filing 29

ORDER THAT THE COMMISSIONER'S OBJECTION IS OVERRULED AND THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THIS MATTER IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE REPORT AND RECOMMENDATION.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 12/20/2018. 12/21/2018 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KELVIN BACHAN, SR.,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civ. No. 17-4665

ORDER
On November 15, 2017, Plaintiff Kelvin Bachan filed this action for review of the Social
Security Administration’s denial of supplemental social security income and disability benefits.
(Doc. No. 5.)

On July 25, 2018, Magistrate Judge Richard Lloret issued a Report and

Recommendation, advising me to remand this matter to the Commissioner. (Doc. No. 25.) The
Commissioner objects and asks me to affirm the Administration’s decision. (Doc. No. 26.) I will
overrule the Commissioner’s objections and adopt Judge Lloret’s Report and Recommendation.
I.

BACKGROUND
On March 14, 2014, Plaintiff, then 43-years-old, applied for SSI and disability insurance

benefits, alleging that he became disabled on August 1, 2013 because of the following
impairments: degenerative disc disease of the cervical and lumbar spine, arthritis of the knees,
seizure disorder, hypokalemia, hypomagnesemia, alcohol abuse, and gammaglobulin disorder.
(Pl.’s Br. & Stat. Issues 2, Doc. No. 20.)
On June 23, 2016, Administrative Law Judge Henry Oliver found that Plaintiff had the
following severe impairments: seizure disorder, hypokalemia, hypomagnesemia, alcohol abuse,
gammaglobulin disorder, and back and knee arthritis. (R. 19.) The ALJ concluded that Plaintiff
was not disabled, however, because his impairments did not meet or medically equal the severity

of a listed impairment. (Id. at 20.) The ALJ determined that Plaintiff had “the residual functional
capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a), except
that he can lift and carry up to 20 pounds occasionally and 10 pounds frequently, sit 7 hours total,
stand or walk one hour total, occasionally balance, stoop, kneel, crouch, crawl, or bend, and never
climb ramps, stairs, or ladders.” (Id.) The ALJ concluded that because of his sedentary RFC,
Plaintiff could not resume his past work as a furniture mover. (Id. at 25.) Relying on a vocational
expert, however, the ALJ found that “there are jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform,” including bench assembler, cashier II, or visual inspector
(which have a light exertional level). (Id. at 25–26.) On August 28, 2017, the Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (Pl.’s Br. & Stat. Issues 1–2.)
On November 15, 2017, Plaintiff brought this action for review of the Administration’s
denial of benefits. (Compl., Doc. No. 5.) Plaintiff contends that the ALJ erred by: (1) finding that
Plaintiff could perform the light duty occupations named by the vocational expert; and (2) failing
to include the need for a sit-stand option as part of his RFC formulation. (Pl.’s Br. & Stat. Issues
4–11.)
On May 21, 2018, I referred this case to Judge Lloret for a Report and Recommendation.
(Doc. No. 23.) On July 25, 2018, Judge Lloret recommended that I remand this matter to “resolv[e]
an obvious inconsistency between [Plaintiff]’s [RFC] and the requirements of the identified
occupations.” (Doc. No. 25.) The Commissioner objected, and Plaintiff responded to the
Commissioner’s Objections. (Doc. Nos. 26, 28.)
II.

LEGAL STANDARDS
I must uphold any factual determination made by the ALJ that is supported by substantial

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evidence. 42 U.S.C. § 405(g); Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
“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.’”
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)). “The presence of evidence in the record that supports a contrary conclusion does not
undermine the Commissioner’s decision so long as the record provides substantial support for that
decision.” Malloy v. Comm’r of Soc. Sec., 306 F. App’x 761, 764 (3d Cir. 2009).
I retain plenary review, however, over the ALJ’s application of legal principles. Payton v.
Barnhart, 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006) (citing Krysztoforski v. Chater, 55 F.3d 857,
858 (3d Cir. 1995)). Thus, I may overturn the ALJ’s decision if it is based upon incorrect legal
standards. Id. (citing Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983)).
I must review de novo those portions of the Report and Recommendation or specific factual
findings to which objection is made. 28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195
(3d Cir. 2011). I may “accept, reject, or modify, in whole or in part, [the Magistrate Judge’s]
findings and recommendations.” 28 U.S.C. § 636(b)(1). It is also within my discretion to rely on
the findings and conclusions of the Magistrate Judge to which no objection has been made. See
United States v. Raddatz, 447 U.S. 667, 676 (1980).
III.

DISCUSSION
The Commissioner objects to Judge Lloret’s determination that an inconsistency exists

between the ALJ’s: (1) limiting Plaintiff to sedentary work; and (2) accepting the vocational
expert’s opinion that Plaintiff could perform light work. (Comm’r’s Objs. 1, Doc. No. 26.) The
Commissioner argues that “there is no apparent conflict” because “the ALJ made a nuanced RFC
finding that spanned [the sedentary and light] exertional levels.” (Comm’r’s Objs. 2, 4.) The

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Commissioner also argues that even if a conflict exists, it is harmless because the vocational expert
“considered the specific restrictions in [Plaintiff’s] RFC, and opined that, even with those specific
restrictions, a person could perform jobs existing in significant numbers in the national economy.”
(Id. at 1, 2, 6.) I disagree.
As Judge Lloret explained, the ALJ “bears the burden of establishing the existence of jobs
in the national economy that an individual with the claimant’s impairments is capable of
performing.” (R. & R. 7); Zirnsak v. Colvin, 777 F.3d 607, 616 (3d Cir. 2014). The ALJ may rely
on testimony from a vocational expert to make this determination. Zirnsak, 777 F.3d at 616; Burns
v. Barnhart, 312 F.3d 113, 120 (3d Cir. 2002).

The ALJ must, however, “[i]dentify and obtain a

reasonable explanation for any conflicts between occupational evidence provided by [vocational
experts]” and “other sources of information,” including the Department of Labor’s Dictionary of
Occupational Titles (DOT) and SSA regulations. See Zirnsak, 777 F.3d at 616–17 (citing
Rutherford v. Barnhart, 399 F.3d 546, 556 (3d Cir. 2005)). The ALJ must: (1) consider whether
the vocational expert’s testimony is consistent with other sources; (2) elicit a reasonable
explanation for any inconsistencies; and (3) explain how the conflict was resolved. See id. (citing
Burns, 312 F.3d at 127). Failure to provide such an explanation warrants remand absent substantial
evidence to support the ALJ’s decision. See id. (citing Boone v. Barnhart, 353 F.3d 203, 209 (3d
Cir. 2004)).
As Judge Lloret observed, there is an “obvious discrepancy” between the vocational
expert’s opinion that Plaintiff could perform light work and how SSA regulations (and the DOT)
define Plaintiff’s RFC for sedentary work—particularly regarding “the ability to stand or walk.”
(R. & R. 9 (citing 20 C.F.R. §§ 404.1567(a) and (b)).) For instance, the vocational expert opined
that Plaintiff could perform jobs that may require up to 6 hours of standing, while the ALJ

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determined (based on the record) that Plaintiff could only stand or walk for one hour. (Id. at 9–10
(citing SSR 83-10.) The ALJ nevertheless adopted the vocational expert’s opinion wholesale
without explanation and concluded that Plaintiff was not disabled because he could still perform
certain jobs requiring light exertion. The Commissioner argues that this decision was “correct”
because these jobs were “consistent with [Plaintiff’s] lifting and carrying limitation” and that “light
jobs exist that may be performed ‘sitting most of the time.’” (Comm’r’s Objs. 4.) This does not
excuse, however, the ALJ’s failure to explain why he limited Plaintiff to sedentary work, but relied
on testimony that Plaintiff could perform light work to make his disability determination. Nor
does substantial evidence clearly support this decision. In these circumstances, I agree that I
cannot intelligently review the ALJ’s decision and that remand is necessary to “adequately develop
the testimony of the vocational expert” and determine whether jobs exist in significant numbers in
the national economy that Plaintiff can perform given his specific sedentary RFC. (R. & R. 12.)
In sum, I agree with Judge Lloret’s analysis.

Accordingly, I will overrule the

Commissioner’s objection, adopt the Report and Recommendation, remand this matter for further
proceedings consistent with the Report and Recommendation, and enter judgment in favor of
Plaintiff. An appropriate Judgment follows.
AND IT IS SO ORDERED.
/s/ Paul S. Diamond
_______________________
Paul S. Diamond

December 20, 2018

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