THOMAS v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KATHRYN VINNETTE THOMAS,

1:18-cv-11644-NLH

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

APPEARANCES:

MICHAEL JOSEPH BROWN

WOLF & BROWN, LLC

228 KINGS HIGHWAY EAST

HADDONFIELD, NJ 08033

On behalf of Plaintiff

STEPHEN M. BALL

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

300 SPRING GARDEN STREET

6TH FLOOR

PHILADELPHIA, PA 19123

On behalf of Defendant

HILLMAN, District Judge

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 Plaintiff’s application for Disability

Insurance Benefits (“DIB”)1 under Title II of the Social Security

1 DIB is a program under the Social Security Act to provide

Act. 42 U.S.C. § 423, et seq. The issue before the Court is

whether the Appeals Council erred in finding that there was

“substantial evidence” that Plaintiff was not disabled at any

time since her alleged onset date of disability, December 15,

2012. For the reasons stated below, this Court will reverse

that decision and remand the matter for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

On July 30, 2014, Plaintiff, Kathryn Vinnette Thomas, filed

an application for DIB, alleging that she became disabled on

December 15, 2012. Plaintiff claims that she can no longer work

because of her severe impairments of degenerative disc disease,

degenerative joint disease, and osteoarthritis.2

After Plaintiff’s claim was denied initially and upon

reconsideration, Plaintiff requested a hearing before an ALJ,

which was held on June 29, 2017. On August 7, 2017, the ALJ

disability benefits when a claimant with a sufficient number of

quarters of insured employment has suffered such a mental or

physical impairment that the claimant cannot perform substantial

gainful employment for at least twelve months. 42 U.S.C. § 423

et seq.

2 Plaintiff was 58 years old at the time of the alleged

disability onset date, which is defined as “advanced age” (age

55 or older). At the time of her application, Plaintiff was 60

years old. The Social Security Regulations state that advanced

age significantly affects a person’s ability to adjust to other

work, and there are special rules for persons of advanced age

and for persons in this category who are closely approaching

retirement age (age 60 or older). 20 C.F.R. § 416.963(e).

issued his decision, finding Plaintiff to be disabled. On its

own motion, the Appeals Council reviewed the ALJ’s decision, and

on May 17, 2018, reversed the ALJ, determining that Plaintiff

was not disabled. The Appeals Council’s decision serves as the

final decision of the Commissioner, and Plaintiff brings this

civil action for review of the Commissioner’s decision.3

II. DISCUSSION

A. Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial

review of the Commissioner’s decision to deny a complainant’s

application for social security benefits. Ventura v. Shalala,

55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold

the Commissioner’s factual decisions where they are supported by

“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.

Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992). Substantial evidence means

more than “a mere scintilla.” Richardson v. Perales, 402 U.S.

3 20 C.F.R. § 404.981 (“The Appeals Council may deny a party’s

request for review or it may decide to review a case and make a

decision. The Appeals Council’s decision, or the decision of

the administrative law judge if the request for review is

denied, is binding unless you or another party file an action in

Federal district court, or the decision is revised. You may

file an action in a Federal district court within 60 days after

the date you receive notice of the Appeals Council’s action.”).

389, 401 (1971)(quoting Consolidated Edison Co. V. NLRB, 305

U.S. 197, 229 (1938)). It means “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Id. The inquiry is not whether the reviewing

court would have made the same determination, but whether the

Commissioner’s conclusion was reasonable. See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988).

A reviewing court has a duty to review the evidence in its

totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

1984). “[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.

Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks

v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th

Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.

474, 488 (1951)).

The Commissioner “must adequately explain in the record his

reasons for rejecting or discrediting competent evidence.”

Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing

Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third

Circuit has held that an “ALJ must review all pertinent medical

evidence and explain his conciliations and rejections.” Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Similarly, an ALJ must also consider and weigh all of the non-

medical evidence before him. Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d

700, 707 (3d Cir. 1981).

The Third Circuit has held that access to the

Commissioner’s reasoning is indeed essential to a meaningful

court review:

Unless the [Commissioner] has analyzed all

evidence and has sufficiently explained the

weight he has given to obviously probative

exhibits, to say that his 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 v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Although

an ALJ, as the fact finder, must consider and evaluate the

medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here

is no requirement that the ALJ discuss in its opinion every

tidbit of evidence included in the record,” Hur v. Barnhart, 94

F. App’x 130, 133 (3d Cir. 2004). In terms of judicial review,

a district court is not “empowered to weigh the evidence or

substitute its conclusions for those of the fact-finder.”

Williams, 970 F.2d at 1182. However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy

itself that the Commissioner arrived at his decision by

application of the proper legal standards. Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);

Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).

B. Standard for DIB

The Social Security Act defines “disability” for purposes

of an entitlement to a period of disability and disability

insurance benefits as the 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. See 42 U.S.C. §

1382c(a)(3)(A). Under this definition, a Plaintiff qualifies as

disabled only if her physical or mental impairments are of such

severity that she is not only unable to perform her past

relevant work, but cannot, given her age, education, and work

experience, engage in any other type of substantial gainful work

which exists in the national economy, regardless of whether such

work exists in the immediate area in which she lives, or whether

a specific job vacancy exists for her, or whether she would be

hired if she applied for work. 42 U.S.C. § 1382c(a)(3)(B)

(emphasis added).

The Commissioner has promulgated regulations4 for

4 The regulations were amended for various provisions effective

March 27, 2017. See 82 F.R. 5844. Neither party asserts that

any of these amendments impact Plaintiff’s appeal.

determining disability that require application of a five-step

sequential analysis. See 20 C.F.R. § 404.1520. This five-step

process is summarized as follows:

1. If the claimant currently is engaged in substantial

gainful employment, she will be found “not disabled.”

2. If the claimant does not suffer from a “severe

impairment,” she will be found “not disabled.”

3. If the severe impairment meets or equals a listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix

1 and has lasted or is expected to last for a

continuous period of at least twelve months, the

claimant will be found “disabled.”

4. If the claimant can still perform work she has done in

the past (“past relevant work”) despite the severe

impairment, she will be found “not disabled.”

5. Finally, the Commissioner will consider the claimant’s

ability to perform work (“residual functional

capacity”), age, education, and past work experience

to determine whether or not she is capable of

performing other work which exists in the national

economy. If she is incapable, she will be found

“disabled.” If she is capable, she will be found “not

disabled.”

20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is

therefore dependent upon a finding that the claimant is

incapable of performing work in the national economy.

This five-step process involves a shifting burden of proof.

See Wallace v. Secretary of Health & Human Servs., 722 F.2d

1150, 1153 (3d Cir. 1983). In the first four steps of the

analysis, the burden is on the claimant to prove every element

of her claim by a preponderance of the evidence. See id. In

the final step, the Commissioner bears the burden of proving

that work is available for the Plaintiff: “Once a claimant has

proved that he is unable to perform his former job, the burden

shifts to the Commissioner to prove that there is some other

kind of substantial gainful employment he is able to perform.”

Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.

Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).

C. Analysis

The decision of the Appeals Council serves as the final

decision of the Commissioner, see supra note 3, and accordingly,

the standard for this Court’s review of an Appeals Council’s

decision is the same as the review of the ALJ’s decision – that

is, a determination as to whether the Appeals Council’s decision

is supported by substantial evidence. Because the Appeals

Council adopted the majority of the ALJ’s findings, the Court

will set forth the ALJ’s findings and then relate the Appeals

Council’s decision.

The ALJ found at step one that Plaintiff had not engaged in

substantial gainful activity since the alleged onset of

disability. At step two, the ALJ found that Plaintiff had the

serve impairments of degenerative disc disease, degenerative

joint disease, and osteoarthritis. At step three, the ALJ

determined that Plaintiff’s severe impairments or her severe

impairments in combination with her other impairments did not

equal the severity of one of the listed impairments.

The ALJ then determined that Plaintiff had the residual

functional capacity (“RFC”) to perform sedentary work with

certain restrictions.5 After considering a vocational expert’s

testimony, the ALJ concluded that Plaintiff’s RFC did not enable

her to perform her past relevant work, and that no other jobs

existed in the national economy that she was capable of

performing (steps four and five).

On its own motion, the Appeals Council reviewed the ALJ’s

decision and found two errors. (R. at 4-7.) First, the

Appeals Council determined that while the ALJ found Plaintiff

unable to perform her past relevant work, the ALJ did not

identify Plaintiff’s past relevant work. Second, the Appeals

Council found that ALJ compounded this error by concluding

without explanation that Plaintiff’s unspecified past relevant

work exceeded Plaintiff’s RFC, rendering her, at step five,

incapable of performing any work with her RFC and, thus,

disabled.

To support its conclusion, the Appeals Council noted that

5 20 C.F.R. § 404.1567 (“Physical exertion requirements. To

determine the physical exertion requirements of work in the

national economy, we classify jobs as sedentary, light, medium,

heavy, and very heavy.”).

at the hearing before the ALJ, a Vocational Expert (“VE”)

identified Plaintiff’s past relevant work as a “community

organizer” and a customer service representative.6 The Appeals

Council further noted that the ALJ did not question the VE about

the customer service representative job, but regardless of that

omission, “the Dictionary of Occupational Titles’ description of

community organizer indicates that the occupation does not

require any of the postural, manipulative, or environmental

activities that the residual functional capacity precludes,” and

“[a]ccordingly, the record does not support that the claimant is

unable to perform her past relevant work as a community

organizer.” (R. at 5.)

The Appeals Council also addressed Plaintiff’s

representative’s argument that Plaintiff performed the

occupation at a light level, rather than at the sedentary level

found by the ALJ. The Appeals Council rejected this argument:

[T]he vocational expert testified that the job is sedentary

as it is generally performed in the national economy. As

already discussed above, at step 4 of the sequential

evaluation process the evaluation is whether the claimant

can perform her past relevant work either as she actually

performed it or as it is generally performed in the

national economy, we will find that the claimant is "not

disabled" (20 CFR 404.1560(b)(2)-(3)). In the instant

case, the claimant could perform the past relevant work of

community organizer as it is generally performed in the

6 Discussed below, the VE also identified three other jobs

Plaintiff held in the past – clerk typist, property manager, and

appraiser.

national economy.

(R. at 6.)

The Appeals Council ultimately adopted the ALJ’s findings

at steps one through three, as well as his RFC determination,

but then found at step four that Plaintiff was capable of

performing her past relevant work, with no need, therefore, to

proceed to step five. (R. at 6-7.)

Plaintiff argues that Appeals Council improperly found that

she was capable of performing the “community organizer” job

because the DOT description of the job is not actually the job

she performed, and instead is a composite job. Plaintiff

further argues that the Appeals Council erred by adopting the

ALJ’s RFC determination that she was capable of sedentary work

because the RFC did not fully consider all of Plaintiff’s

impairments and her subjective complaints.

The Court finds that the Appeals Council’s decision that

Plaintiff is capable of performing her past relevant work is not

supported by substantial evidence. Both the ALJ’s decision and

the Appeals Council’s decision are rather brief and conclusory,

but the transcript of the hearing before the ALJ clearly

establishes why remand of this case is necessary.

At the hearing, the ALJ discussed with Plaintiff her past

relevant work. During her time in the Army in the 1980s,

Plaintiff served as a clerk typist, which the VE classified as

semi-skilled at a sedentary level. Plaintiff also served as a

property manager, which is a skilled position at the light

level; an appraiser, which is a skilled position at the light

level; and an order clerk, which is a semi-skilled position at

the light level.

For the community organizer job, the VE matched it with the

DOT-defined “community organization worker” position (DOT

#195.167-010) because Plaintiff indicated that she served as a

community organizer. At the hearing, Plaintiff described how

she performed her community organizer job: “Basically I would

go door to door and knock on all the doors that I could get into

in Parkside [Camden, New Jersey]. I laid it out on a map so I

could control how many I was going to do in a day . . . and

speak to each resident, try to get them involved in the

community, come to a community meeting and also help them with

any problems they were having and direct them to the right

agencies to . . . solve that problem.” (R. at 38.) This

entailed a lot of walking and step climbing. (Id.)

The VE testified that the DOT classified the community

organizer position as a skilled occupation at a sedentary

exertional level, but that Plaintiff performed it at the light

exertional level. (R. at 55.) The VE also testified that none

of the skills Plaintiff acquired in her skilled or semi-skilled

positions could transfer to a sedentary occupation without

significant adjustment.7 (R. at 56.)

The Court presumes, because he did not specifically say,

that the ALJ consequently found Plaintiff unable to perform any

work in the national economy because all of Plaintiff’s past

work was (1) classified or performed at the light exertional

level, and Plaintiff only had the RFC for sedentary work, and

(2) was skilled work not transferable to a sedentary occupation

because of the significant adjustment it would take to transfer

those skills.

In its review of the ALJ’s decision, the Appeals Council

focused on the community organizer position. The Appeals

Council noted that a claimant may be deemed capable of

7 SSR 82-41 explains, “To find that an individual who is age 55

or over and is limited to sedentary work exertion has skills

transferable to sedentary occupations, there must be very

little, if any vocational adjustment required in terms of tools,

work processes, work settings or the industry. The same is true

for individuals who are age 60 and older and are limited to

light work exertion. Individuals with these adverse vocational

profiles cannot be expected to make a vocational adjustment to

substantial changes in work simply because skilled or

semiskilled jobs can be identified which have some degree of

skill similarity with their PRW. In order to establish

transferability of skills for such individuals, the semiskilled

or skilled job duties of their past work must be so closely

related to other jobs which they can perform that they could be

expected to perform these other identified jobs at a high degree

of proficiency with a minimal amount of job orientation.”

performing past relevant work if that claimant’s RFC matches the

DOT definition’s exertional level or the level of how the

claimant performed the job. Because the DOT defines the

community organizer job as sedentary, and Plaintiff retained the

RFC to perform sedentary work, she was capable of performing her

past relevant work.

The Appeals Council’s conclusion is not supportable by the

law or the record evidence. First, the Appeals Council cited to

20 C.F.R. §404.1560(b)(2) to support its contention that

Plaintiff was capable of performing her past work because the

DOT classifies her prior job as sedentary. It also relied upon

what it believed was the VE’s testimony - that the job is

generally performed at the sedentary level. This finding is

contrary to the undisputed fact that Plaintiff performed that

position at the light level. The Appeals Council stated, “[A]t

step four . . . [if] the claimant can perform her past work

either as she actually performed it or as it is generally

performed in the national economy, we will find the claimant []

‘not disabled.’” (R. at 6.)

That regulation, however, does not provide such a narrow,

bright-line rule such that the DOT classification by itself

automatically renders a claimant to be capable of past work if

her RFC matches the DOT exertional level. Moreover, the VE did

not testify as described by the Appeals Council.

The regulation provides:

Determining whether you can do your past relevant work. We

will ask you for information about work you have done in

the past. We may also ask other people who know about your

work. (See § 404.1565(b).) We may use the services of

vocational experts or vocational specialists, or other

resources, such as the “Dictionary of Occupational Titles”

and its companion volumes and supplements, published by the

Department of Labor, to obtain evidence we need to help us

determine whether you can do your past relevant work, given

your residual functional capacity. A vocational expert or

specialist may offer relevant evidence within his or her

expertise or knowledge concerning the physical and mental

demands of a claimant's past relevant work, either as the

claimant actually performed it or as generally performed in

the national economy. Such evidence may be helpful in

supplementing or evaluating the accuracy of the claimant's

description of his past work. In addition, a vocational

expert or specialist may offer expert opinion testimony in

response to a hypothetical question about whether a person

with the physical and mental limitations imposed by the

claimant's medical impairment(s) can meet the demands of

the claimant's previous work, either as the claimant

actually performed it or as generally performed in the

national economy.

20 C.F.R. §404.1560(b)(2); see also 20 C.F.R. § 404.1566(b)

(directing an ALJ to take notice of job information available

from various governmental and other publications, such as the

Dictionary of Occupational Titles, County Business Patterns,

Census Reports, Occupational Analyses, and Occupational Outlook

Handbook, as well as engage the services of a vocational

expert).

These regulations show that the DOT definition of a job is

just one factor of many – and not the determinative factor - to

consider in assessing whether a claimant is capable of

performing her past relevant work. Whether a claimant can

perform past relevant work as it is generally performed in the

national economy does not derive solely from the DOT definition,

but also from the testimony of a vocational expert who can

provide further guidance on the nature of the job and how it is

commonly performed.

Here, the VE testified that the community organizer is “a

skilled occupation, SVP 8,8 it’s classified as sedentary exertion

but performed in light exertion.” (R. at 55.) In response to a

question about whether the VE classified the community organizer

as being light or sedentary, the VE further testified, “that was

light even though the DOT classifies it as --- it was performed

in light and classified in the DOT as sedentary.” (R. at 56.)

The Appeals Council’s determination that the VE testified that

the community organizer position “is sedentary as it is

generally performed in the national economy” (R. at 6) is not

supported by the record. Therefore, the finding that Plaintiff

is capable of performing her past relevant work based solely on

the DOT classification and a misrepresentation of the VE’s

8 The DOT lists a specific vocational preparation (SVP) time for

each described occupation. Using the skill level definitions in

20 C.F.R. § 404.1568, unskilled work corresponds to an SVP of 1-

2; semi-skilled work corresponds to an SVP of 3-4; and skilled

work corresponds to an SVP of 5-9 in the DOT.

testimony fails to meet the Commissioner’s burden at step four.

This error leads to another – more specifically whether the

Appeals Council properly supported its decision that Plaintiff’s

RFC rendered her capable of performing the community organizer

position as it is defined regardless of its sedentary

classification. The DOT defines the community organizer job as

follows:

CODE: 195.167-010 TITLE(s): COMMUNITY ORGANIZATION WORKER

(social ser.) alternate titles: community

service consultant; information and referral director;

program consultant

Plans, organizes, and coordinates programs with agencies

and groups concerned with social problems of community:

Promotes and coordinates activities of agencies, groups,

and individuals to meet identified needs. Studies and

assesses strength and weakness of existing resources.

Interprets needs, programs, and services to agencies,

groups, and individuals involved and provides leadership

and assistance. Prepares reports and disseminates

information. Maintains contact with representatives of

other organizations to exchange and update information on

resources and services available. May write proposals to

obtain government or private funding for projects designed

to meet needs of community. May assist in budget

preparation and presentation. May assist in raising funds.

Works in specialized fields such as housing, urban renewal

and redevelopment, and health or in public or voluntary

coordinating agency, such as community welfare or health

council, or combined fund raising and welfare planning

council. Works with special groups such as elderly,

financially disadvantaged, juvenile delinquents, or

physically or mentally handicapped. Usually required to

have degree from school of social work. May direct and

coordinate activities of volunteers or practicum students.

GOE: 11.07.01 STRENGTH: S GED: R5 M3 L5 SVP: 8 DLU: 81

The ALJ found Plaintiff’s RFC to be:

The claimant has the residual functional capacity to

perform sedentary work as defied in 20 CFR 404.1567(a)

except she can only stand/walk for 2 hours; occasionally

balance and climb ramps and stairs, but never stoop, kneel,

crouch, crawl or climb ladders, ropes or scaffolds;

occasionally reach, handle, finger, push or pull with the

right upper extremity; and should avoid unprotected heights

and hazardous machinery.

(R. at 25.) The Appeals Council adopted that RFC. (R. at 6.)

The Appeals Council provided no record evidence to support

its conclusion that Plaintiff’s RFC enabled her to perform the

community organizer position aside from its sedentary

classification. When comparing the duties of a community

organizer with Plaintiff’s RFC, the Appeals Council’s decision

is silent as to how Plaintiff’s restrictions are not a

hinderance to her performing that job, other than to state in

conclusory fashion that they are not (R. at 5).

Additionally, the decision lacks any record support to show

that Plaintiff has the required General Educational Development

(GED) which is required of the DOT-defined community organizer

job, in contrast to how Plaintiff performed that job in the

past. The GED Scale is composed of Reasoning Development,

Mathematical Development, and Language Development, and the

community organizer job requires:

05 LEVEL REASONING DEVELOPMENT

Apply principles of logical or scientific thinking to

define problems, collect data, establish facts, and draw

valid conclusions. Interpret an extensive variety of

technical instructions in mathematical or diagrammatic

form. Deal with several abstract and concrete variables.

03 MATHEMATICAL DEVELOPMENT

Compute discount, interest, profit and loss; commission,

markup, and selling price; ratio and proportion; and

percentage. Calculate surfaces, volumes, weights, and

measures.

Algebra: Calculate variables and formulas; monomials and

polynomials; ratio and proportion variables; and square

roots and radicals.

Geometry:

Calculate plane and solid figures; circumference, area, and

volume. Understand kinds of angles and properties of pairs

of angles.

05 LANGUAGE DEVELOPMENT

Reading: Read literature, book and play reviews, scientific

and technical journals, abstracts, financial reports, and

legal documents.

Writing: Write novels, plays, editorials, journals,

speeches, manuals, critiques, poetry, and songs.

Speaking: Conversant in the theory, principles, and methods

of effective and persuasive speaking, voice and diction,

phonetics, and discussion and debate.

Plaintiff testified that she has a high school education

with two years of additional unspecified education, but not an

associate degree. (R. at 33.) Plaintiff testified that she

passes her time watching TV, reading the Bible, and doing jigsaw

puzzles, but she has short-term memory problems due to her

medication. (R. at 51-53.) Plaintiff stated that she rarely

drives because of the effects of her medication and limitation

in mobility, and she does not sleep well because of her constant

pain. (R. at 53-54.) Plaintiff also has a history of

depression and non-exertional limitations. (R. at 34.) Nowhere

in the Appeals Council’s decision are these factors addressed in

consideration of whether Plaintiff was capable of performing

this job with these GED requirements, particularly when

Plaintiff’s description of her job duties does not correspond

with most of the DOT’s description.

SSA regulations require the Commissioner to compare a

claimant’s RFC with the physical and mental demands of the

claimant’s past relevant work, and if the claimant “can still do

this kind of work,” the claimant will not be found disabled. 20

C.F.R. § 404.1520(f). The SSA has directed that “this kind of

work” is determined by three considerations:

1. Whether the claimant retains the capacity to perform a

past relevant job based on a broad generic, occupational

classification of that job, e.g., "delivery job,"

"packaging job," etc. Finding that a claimant has the

capacity to do past relevant work on the basis of a generic

occupational classification of the work is likely to be

fallacious and unsupportable. While "delivery jobs," or

"packaging jobs," etc., may have a common characteristic,

they often involve quite different functional demands and

duties requiring varying abilities and job knowledge.

2. Whether the claimant retains the capacity to perform the

particular functional demands and job duties peculiar to an

individual job as he or she actually performed it.

Under this test, where the evidence shows that a claimant

retains the RFC to perform the functional demands and job

duties of a particular past relevant job as he or she

actually performed it, the claimant should be found to be

"not disabled."

3. Whether the claimant retains the capacity to perform the

functional demands and job duties of the job as ordinarily

required by employers throughout the national economy.

(The Dictionary of Occupational Titles (DOT) descriptions

can be relied upon -- for jobs that are listed in the DOT -

- to define the job as it is usually performed in the

national economy.) It is understood that some individual

jobs may require somewhat more or less exertion than the

DOT description.

SSA 82-61.

It is irrefutable that Plaintiff’s RFC does not render her

capable of performing the community organizer job as she

performed it. As to whether Plaintiff’s RFC permits her to

perform the position as defined by the DOT and ordinarily

performed in the national economy, the Appeals Council failed to

adequately support its conclusion that Plaintiff “can still do

this kind of work.” The matter must be remanded on this basis

as well.

As for Plaintiff’s challenge to the ALJ’s RFC

determination, the ALJ’s decision is sparse regarding the

medical evidence and Plaintiff’s subjective complaints. The

Court presumes this is because the ALJ had determined prior to

issuing his decision that Plaintiff would be deemed disabled at

step five and a more comprehensive decision was not necessary.

The Court notes that on remand the Appeals Council should

consider whether the ALJ’s RFC determination is supported by

substantial evidence.9 See SSR 82-13 (“Under the substantial

9 For example, the ALJ noted Plaintiff’s reactive depression and

evidence rule, the Appeals Council evaluates the hearing

decision by looking to the record as a whole in order to

determine if sufficient evidence exists to support the

administrative law judge's action, and stated findings and

conclusions. This requires that the decision be based on

sufficient quantity and quality of evidence so that a reasonable

mind might come to the same conclusion.”).

III. Conclusion

In sum, the Court finds that the Appeals Council erred in

two dispositive ways: (1) the Appeals Council relied upon a

statement that the VE did not make (i.e., that the VE testified

the community organizer position “is sedentary as it is

generally performed in the national economy,” when in fact the

VE testified “it was performed in light”); and (2) the Appeals

Council failed to properly support its decision that Plaintiff’s

determined that it was not severe. (R. at 25.) The ALJ,

however, failed to consider that non-severe impairment in

combination with Plaintiff’s severe impairments as required by

the regulations. See SSR 96-8p (requiring an ALJ to “consider

limitations and restrictions imposed by all of an individual’s

impairments, even those that are not ‘severe’” because “[w]hile

a ‘not severe’ impairment(s) standing alone may not

significantly limit an individual’s ability to do basic work

activities, it may--when considered with limitations or

restrictions due to other impairments--be critical to the

outcome of a claim. For example, in combination with limitations

imposed by an individual’s other impairments, the limitations

due to such a ‘not severe’ impairment may prevent an individual

from performing past relevant work or may narrow the range of

other work that the individual may still be able to do.”).

RFC rendered her capable of performing the community organizer

position as defined by the DOT regardless of its sedentary

classification.

Consequently, the Appeals Council’s determination that

Plaintiff was capable of performing her past relevant work as a

community organizer is not supported by substantial evidence.

The decision of the Appeals Council will be reversed and the

matter remanded for further consideration consistent with this

Opinion.10

An accompanying Order will be issued.

Date: August 6, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

10 Plaintiff requests that this Court award benefits rather than

remand for further proceedings. Although a district court may

grant such relief, a district court must be certain that a

plaintiff is entitled to benefits. See Gilliland v. Heckler,

786 F.2d 178, 184–85 (3d Cir. 1986) (citations omitted)

(decision to direct the award of benefits should be made only

when administrative record of the case has been fully developed

and when substantial evidence on the record as a whole indicates

Claimant is disabled and entitled to benefits); see also INS v.

Ventura, 537 U.S. 12, 16 (2002) (“[T]he proper course, except in

rare circumstances, is to remand to the agency for additional

investigation or explanation.”). The records as a whole is

inadequate to determine Plaintiff’s RFC, or decide whether she

has the ability to perform her past work or other jobs in the

national economy. Remand is the proper course in this case.