# THOMAS v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · August 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10266495

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266495. Public record. Not legal advice.