United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION TO VACATE THE DECISION OF
THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS DOCS. 1,
6, 7, 8, 9, 10
B. COHN UNITED STATES MAGISTRATE JUDGE
above-captioned action is one seeking review of a decision of
the Commissioner of Social Security ("Defendant”)
denying the application of Plaintiff for benefits under the
Social Security Act, 42 U.S.C. §§401-433, 1382-1383
(the “Act”) and Social Security Regulations, 20
C.F.R. §§404.1501 et seq.,
§§416.901 et. seq. (the
“Regulations”). The administrative law judge
(“ALJ”) decision lacks substantial evidence
because the ALJ failed to elicit vocational expert
(“VE”) testimony. Instead, the ALJ relied on the
medical-vocational guidelines (“Grids”). This
case required VE testimony because the ALJ found that
Plaintiff was limited to sedentary work and included a varied
combination of non-exertional limitations, including
limitations in using the hands, manipulating, reaching, and
balancing, which may significantly erode the sedentary
occupational base. The Court recommends remand, rather than
reversal, because the VE testimony on remand may still
indicate Plaintiff is not disabled. However, it is for the
ALJ, not the Court, to make that finding in the first
instance. The Court recommends that Plaintiff's appeal be
granted, the decision of the Commissioner be vacated, and the
matter be remanded for further proceedings and proper
evaluation of the medical opinions.
August 23, 2012, Plaintiff applied for SSI and DIB. (Tr.
170-77). On October 10, 2012, the Bureau of Disability
Determination (“state agency”) denied
Plaintiff's application (Tr. 53-74), and Plaintiff
requested a hearing. (Tr. 115-16). On March 4, 2014, an ALJ
held a hearing at which Plaintiff and a vocational expert
(“VE”) appeared and testified. (Tr. 32-50). On
October 1, 2014, the ALJ found that Plaintiff was not
entitled to benefits. (Tr. 15-31). Plaintiff requested review
with the Appeals Council (Tr. 14), which the Appeals Council
denied on December 10, 2015, affirming the decision of the
ALJ as the “final decision” of the Commissioner.
(Tr. 3-7). See Sims v. Apfel, 530 U.S. 103, 107
March 18, 2016, Plaintiff filed the above-captioned action
pursuant to 42 U.S.C. § 405(g) to appeal the decision of
the Commissioner. (Doc. 1). On May 17, 2016, the Commissioner
filed an answer and administrative transcript of proceedings.
(Docs. 6, 7). On July 5, 2016, Plaintiff filed a brief in
support of the appeal (“Pl. Brief”). (Doc. 8). On
August 4, 2016, Defendant filed a brief in response
(“Def. Brief”). (Doc. 9). On August 18, 2016,
Plaintiff filed a brief in reply (“Pl. Reply”).
(Doc. 10). On November 7, 2016, the Court referred this case
to the undersigned Magistrate Judge. The matter is now ripe
Standard of Review and Sequential Evaluation Process
receive benefits under the Act, a claimant must establish an
“inability 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 12 months.” 42 U.S.C. §
423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act
requires that a claimant for disability benefits show that:
He is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. §
uses a five-step evaluation process to determine if a person
is eligible for disability benefits. See 20 C.F.R.
§ 404.1520. The ALJ must sequentially determine: (1)
whether the claimant is engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals a
listed impairment from 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“Listing”); (4) whether the
claimant's impairment prevents the claimant from doing
past relevant work; and (5) whether the claimant's
impairment prevents the claimant from doing any other work.
See 20 C.F.R. §§ 404.1520. Before step
four in this process, the ALJ must also determine
Plaintiff's residual functional capacity
(“RFC”). 20 C.F.R. §§ 404.1520(e).
disability determination involves shifting burdens of proof.
The claimant bears the burden of proof at steps one through
four. If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the
national economy that the claimant can perform. Mason v.
Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The
ultimate burden of proving disability under the Act lies with
the claimant. See 42 U.S.C. § 423(d)(5)(A); 20
C.F.R. § 416.912(a).
reviewing the denial of disability benefits, the Court must
determine whether substantial evidence supports the denial.
Johnson v. Commissioner of Social Sec., 529 F.3d
198, 200 (3d Cir. 2008). Substantial evidence is a
deferential standard of review. See Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is
“less than a preponderance” and “more than
a mere scintilla.” Jesurum v. Sec'y of
U.S. Dep't of Health & Human Servs., 48 F.3d
114, 117 (3d Cir. 1995) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)).
must craft an RFC before moving to steps four and five.
See Sykes v. Apfel, 228 F.3d 259, 263 (3d
Cir. 2000). RFC limitations “can be either exertional
or nonexertional.” Id. Exertional limitations
are defined as limitations in “sitting, standing,
walking, lifting, carrying, pushing, and pulling.” 20
C.F.R. § 404.1569a(b). “To determine the physical
exertion requirements of work in the national economy, [the
ALJ] classif[ies] jobs as sedentary, light, medium, heavy,
and very heavy.” 20 C.F.R. § 404.1567.
Non-exertional limitations include “manipulative or
postural functions” like “reaching, handling,
stooping, climbing, crawling, or crouching, ” along
with mental impairments and other limitations. 20 C.F.R.
alleged disability due to neuropathy, chronic back pain,
edema, inflammation of the ankles, swollen wrist,
hyperlordosis, and asthma (Tr. 65). The ALJ found that
Plaintiff's RFC included exertional and multiple
[Claimant could perform] sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except she cannot climb ladders,
ropes or stairs, and can perform all other postural functions
occasionally; she can frequently handle and finger; she must
avoid ordinary workplace hazards; and she must avoid
concentrated exposure to extreme cold, extreme heat,
humidity, and toxic caustic chemicals and similar
(Tr. 21). The ALJ did not obtain VE testimony, instead
If the claimant had the residual functional capacity to
perform the full range of sedentary work, considering the
claimant's age, education, and work experience, a finding
of "not disabled" would be directed by
Medical-Vocational Rule 201.28. However, the additional
limitations have little or no effect on the occupational base
of unskilled sedentary work. A finding of "not
disabled" is therefore appropriate under the framework
of this rule. The claimant's additional postural and