MONTERO v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARISOL M.,

Plaintiff, 1:20-cv-08993-NLH

v. OPINION

COMMISSIONER OF SOCIAL

SECURITY,1

Defendant.

APPEARANCES:

ADRIENNE FREYA JARVIS

800 NORTH KINGS HIGHWAY

SUITE 304

CHERRY HILL, NJ 08034

On behalf of Plaintiff

ANTONIA MARIA ADAM

EMILY BRESLIN MARKOS

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. §

1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner

of the Social Security Administration.

405(g), regarding Plaintiff’s application for Disability

Insurance Benefits (“DIB”)2 under Title II of the Social Security

Act. 42 U.S.C. § 423, et seq. It is also before the Court

under § 1614(a)(3)(A) of the Social Security Act, as amended 42

U.S.C. § 1382c(a)(3(A), regarding Plaintiff’s application for

supplemental security income (“SSI”)3 under Title XVI of the

Social Security Act. 42 U.S.C. § 1381 et seq. The issue before

the Court is whether the Administrative Law Judge (“ALJ”) erred

in finding that there was “substantial evidence” that Plaintiff

was not disabled at any time since her alleged onset date of

disability, July 2, 2013. For the reasons stated below, this

Court will reverse that decision and remand the matter for

further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

On August 25, 2016, Plaintiff, filed an application for

DIB, alleging that she became disabled on July 2, 2013. (ECF 12

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

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.

3 SSI is a program under the Social Security Act that provides

supplemental security income to individuals who have attained

age 65, or are blind or disabled. 42 U.S.C. § 1381 et seq.

2

at 1). Plaintiff claims that she can no longer work as a

cleaner because of her severe impairments, including spine

disorder, asthma, diabetes mellitus, dysfunction of major joint

(left shoulder), disorder of muscle/fascia (left ankle),

hypertension, obesity, aortic valve disease, gastrointestinal

disorder, migraine, and persistent depressive disorder.4 (Id. at

2).

Plaintiff’s initial claim was denied on November 9, 2016

(R. 391), and upon reconsideration on June 27, 2017 (R. at 406).

Plaintiff requested a hearing before an ALJ, which was held on

March 19, 2019. (Id .at 15). On May 9, 2019, the ALJ issued an

unfavorable decision. Plaintiff’s Request for Review of Hearing

Decision was denied by the Appeals Council on June 24, 2020 (Id.

at 1-5), making the ALJ’s May 9, 2019 decision final. Plaintiff

brings this civil action for review of the Commissioner’s

decision.

II. DISCUSSION

A. Standard of Review

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

4 On the alleged onset date of July 2, 2013, Plaintiff was 38

years old, which is defined as “a younger individual” (age 18-

49). 20 C.F.R. § 404.1563.

3

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

application for social security benefits.5 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.

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

5 The standard for determining whether a claimant is disabled is

the same for both DIB and SSI. See Rutherford v. Barnhart, 399

F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted). DIB

regulations are found at 20 C.F.R. §§ 404.1500-404.1599, and the

parallel SSI regulations are found at 20 C.F.R. §§ 416.900-

416.999, which correspond to the last two digits of the DIB

cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20 C.F.R. §

416.945). The Court will provide citations only to the DIB

regulations. See Carmon v. Barnhart, 81 F. App'x 410, 411 n.1

(3d Cir. 2003) (explaining that because “[t]he law and

regulations governing the determination of disability are the

same for both disability insurance benefits and [supplemental

security income],” “[w]e provide citations only to the

regulations respecting disability insurance benefits”).

4

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 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

5

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 factfinder, 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).

6

B. Standard for DIB and SSI

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).

The Commissioner has promulgated regulations6 for

determining disability that require application of a five-step

6 The regulations were amended for various provisions effective

March 27, 2017. See 82 F.R. 5844. The parties do not indicate

that any of the amendments are applicable to the issues

presented by Plaintiff’s appeal.

7

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

8

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

At step one, the ALJ found that Plaintiff had not engaged

in substantial gainful activity since the alleged onset of

disability. (R. at 18). At step two, the ALJ found that

Plaintiff’s impairments of spine disorder, asthma, diabetes

mellitus, dysfunction of major joint (left shoulder), disorder

of muscle/fascia (left ankle), hypertension, obesity, aortic

valve disease, gastrointestinal disorder, migraine, and

persistent depressive disorder were severe. (Id.) 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.

(Id. at 19). The ALJ then determined that Plaintiff’s residual

functional capacity (“RFC”) precluded her from performing her

past work as a cleaning, but her RFC rendered her capable of

9

performing work at the sedentary level,7 with some exertional and

environmental limitations (steps four and five). (Id. at 20-

21).

Plaintiff presents two arguments that the ALJ erred at step

five. Plaintiff contends that the ALJ erred in determining that

she was capable of performing sedentary level jobs because of a

faulty hypothetical question posed to the Vocational Expert

(“VE”). (ECF 12 at 1). Plaintiff argues that even though the

ALJ found Plaintiff, who was educated in Spanish and lived a

significant portion of her life in Puerto Rico, to be illiterate

in English, the ALJ did not convey that finding to the VE, who

then suggested jobs that require proficiency in speaking,

writing, and understanding English that Plaintiff does not

possess. (Id. at 4-5). Plaintiff also argues in the

alternative that even if the Court finds that the VE assumed

that Plaintiff was illiterate in English, the ALJ did not

solicit a “reasonable explanation” from the VE to explain the

discrepancy between the jobs proposed by the VE as described in

the Dictionary of Occupational Titles (the “DOT”) and

7 See 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.”).

10

Plaintiff’s actual abilities as required by Social Security

Ruling (“SSR”) 00-4p.8 (Id. at 1).

1. The ALJ’s hypothetical to the VE at step five

At step five of the sequential step analysis, the burden is

on the Commissioner to show that an individual’s impairments do

not prevent her from performing other work that exists in the

national economy, considering her RFC together with the

vocational factors of age, education, and work experience. See

20 C.F.R. § 404.1520(f). In making that determination, an ALJ

will rely on the DOT, as well as testimony from VEs, for

information about the requirements of work in the national

economy. SSR 00-4p.

Occupational evidence provided by a VE generally should be

consistent with the occupational information supplied by the

DOT, but when there is an apparent unresolved conflict between

VE evidence and the DOT, the ALJ must elicit a reasonable

explanation for the conflict before relying on the VE evidence

to support a determination about whether the claimant is

disabled. Id. The ALJ must then explain in her decision how

8 See SSR 00-4p (“[B]efore relying on VE [] evidence to support a

disability determination or decision, our adjudicators must:

Identify and obtain a reasonable explanation for any conflicts

between occupational evidence provided by VEs [] and information

in the Dictionary of Occupational Titles (DOT)”).

11

she resolved the conflict. Id.

In this case, the ALJ determined that Plaintiff was not

capable of performing her past work as a cleaner, which is a

heavy exertion level job. (R. at 30). The ALJ found that

“[t]he claimant is not able to communicate in English, and is

considered in the same way as an individual who is illiterate in

English.” 9 (Id.) The ALJ noted that a transferability of

skills analysis was not necessary because Plaintiff’s prior work

was unskilled. (Id.)

The ALJ’s assessment of Plaintiff’s education – i.e.,

Plaintiff’s illiteracy in English – and how the ALJ described

Plaintiff’s education to the VE is the crux of this aspect of

Plaintiff’s appeal. At the hearing, the ALJ posed the following

hypothetical to the VE:

I'll have you assume an individual of the claimant's

age and education, with the past work you've just

classified. Further, I'd like you to assume this

9 At the time that the ALJ rendered her decision, 20 C.F.R. §

404.1564(b) specifically referenced English language abilities

as opposed to fluency in other languages as relevant to an

assessment of a claimant’s education. The section, as revised

as of April 27, 2020, defines illiteracy more generally as an

inability to read and write without specific reference to

foreign languages. Courts since this change have construed the

ability to communicate specifically in English as salient to an

illiteracy determination. See Rodriguez v. Kijakazi, No. 8:21-

CV-681-T-SPF, 2022 WL 2156202, at *4 (M.D. Fla. June 15, 2022);

Valdizon v. Kijakazi, No. 1:20-CV-01271-SKO, 2022 WL 378656, at

*7 (E.D. Cal. Feb. 8, 2022).

12

individual is limited as follows. Assume they can lift and

carry no more than 20 pounds occasionally or 10 pounds

frequently, stand or walk six of eight hours and sit for

six of eight hours; only occasional ramps and stairs; no

ladders, ropes, or scaffolds; frequent balancing,

occasional stooping, kneeling, crouching, and crawling; no

exposure to extreme cold, heat, pulmonary irritants,

unprotected heights, or hazardous machinery; less than

occasional exposure to wetness, humidity, and vibration.

Assume the individual is able to understand, remember, and

carry out simple, routine, repetitive tasks involving

simple work-related decisions in a routine environment with

few if any workplace changes, and can work for two hours

before needing a break. Could that hypothetical individual

perform any of the past work?

(R. at 304-305).

The VE answered “no,” and stated that the hypothetical

individual described by the ALJ could perform the sedentary

level jobs of final assembler, optical goods (DOT #

713.687-018), lens inserter (DOT # 713.687-026), and compact

assembler (DOT # 739.687-026). (R. at 31). The DOT10 classifies

10 “The DOT is a vocational dictionary that lists and defines all

jobs available in the national economy and specifies what

qualifications are needed to perform each job.” Zirnsak v.

Colvin, 777 F.3d 607, 617 (3d Cir. 2014) (citing Appendix C,

Dictionary of Occupational Titles, available at

www.occupationalinfo.org/appendxc_1.html) (other citations

omitted). The qualification categories listed by the DOT for

each job include the job’s Strength level, General Educational

Development (“GED”) level, and its Specific Vocational

Preparation (“SVP”) level. Strength level “reflects the

estimated overall strength requirement of the job.” GED

measures the “those aspects of education (formal and informal)

which are required of the worker for satisfactory job

performance.” GED is broken into three categories: (1)

reasoning development, (2) mathematical development, and (3)

13

the first two jobs with a language development level of 1, which

requires:

Reading: Recognize meaning of 2,500 (two- or three-

syllable) words. Read at rate of 95-120 words per minute.

Compare similarities and differences between words and

between series of numbers.

Writing: Print simple sentences containing subject, verb,

and object, and series of numbers, names, and addresses.

Speaking: Speak simple sentences, using normal word order,

and present and past tenses.

The DOT classifies the last job of compact assembler with a

language development level of 2, which requires:

Reading: Passive vocabulary of 5,000-6,000 words. Read at

rate of 190-215 words per minute. Read adventure stories

and comic books, looking up unfamiliar words in dictionary

for meaning, spelling, and pronunciation. Read instructions

for assembling model cars and airplanes.

Writing: Write compound and complex sentences, using

cursive style, proper end punctuation, and employing

adjectives and adverbs.

Speaking: Speak clearly and distinctly with appropriate

pauses and emphasis, correct pronunciation, variations in

word order, using present, perfect, and future tenses.

DOT, Appendix C.

Plaintiff argues that the ALJ did not present a proper

hypothetical to the VE regarding the vocational factor of

education so that the VE could either modify his testimony

language development. Reasoning levels in the DOT range from

level 1 to level 6.

14

regarding the jobs Plaintiff was capable of performing, or

explain the apparent conflict between the language level

required by the suggested jobs and Plaintiff’s educational

level, which the ALJ deemed to be commensurate with illiteracy.

Because the VE was left in the dark as to Plaintiff’s apparent

lack of English language skills, Plaintiff argues that the ALJ

failed to fulfill her obligation under SSA regulations to elicit

a reasonable explanation for the conflict from the VE, and then

explain how she resolved the conflict in her decision.

The Court agrees. The testimony at the hearing regarding

Plaintiff’s education indicated that she understood and spoke

only some English and that she received her GED in Spanish. (R.

at 290-97). The hearing transcript does not contain clear

testimony regarding Plaintiff’s proficiency in English beyond

Plaintiff’s statement that she could understand “some, but not a

lot” of English, which was made through an interpreter at the

hearing. (Id. at 290). Thus, when the ALJ asked the VE to

consider a hypothetical individual with Plaintiff’s “education,”

the only information as to Plaintiff’s education available to

the VE on which to base her testimony was that Plaintiff

understood some English, completed her GED in Spanish, and used

15

an interpreter during the hearing.11

The ALJ’s hypothetical presents one problem that compounds

into a second problem. First, the ALJ’s hypothetical does not

fully apprise the VE of Plaintiff’s education, which is a

vocational factor that the ALJ must consider in tandem with

Plaintiff’s RFC. See 20 C.F.R. § 404.1520(f). Second, in her

decision the ALJ determined that Plaintiff was illiterate in

English, and that Plaintiff was capable of performing the three

jobs suggested by the VE. The ALJ failed, however, to reconcile

11 The Court finds its prior decision in Saez-Ortiz v. Comm'r of

Soc. Sec., No. 1:17-CV-06286-NLH, 2019 WL 324922, at *7 (D.N.J.

Jan. 25, 2019) to be particularly salient here. In Saez-Ortiz,

this Court was faced with a very similar situation in which the

plaintiff argued that the ALJ failed to provide the VE with a

hypothetical that accounted for the plaintiffs lack of English

proficiency and that that error was compounded because the ALJ

did not solicit from the VE a reasonable explanation as to why

she could perform certain jobs that the DOT listed as requiring

a higher level of proficiency in English than the plaintiff

possessed. See generally id. There, the Court found that the

lack of reference to the plaintiff’s language skills at the

hearing beyond the fact that she used an interpreter militated

against a finding that the VE took her language skills into

account when proposing potential jobs. Id. at *7. The facts in

the instant case are slightly less stark in that there is

specific reference in the hearing to the fact that Plaintiff

earned her GED in Spanish and that she did not understand a

great deal of English. However, as further explained in this

Opinion, the Court finds that those two passing references to

Plaintiff’s language skills does not make the ALJ’s boilerplate

reference to Plaintiff’s “education” in her hypothetical

accurate.

16

Plaintiff’s illiteracy with the language development levels of

the jobs suggested by the VE, who based her testimony on the

incomplete hypothetical. This is in contravention of the

regulations and Third Circuit law. See SSR 00-4p; Zirnsak v.

Colvin, 777 F.3d 607, 617 (3d Cir. 2014) (internal quotations

and citations omitted) (“As a general rule, occupational

evidence provided by a VE should be consistent with the

occupational evidence presented in the DOT,” and to ensure

consistency “an ALJ is required to (1) ask, on the record,

whether the VE’s testimony is consistent with the DOT, (2)

elicit a reasonable explanation where an inconsistency does

appear, and (3) explain in its decision how the conflict was

resolved.”).

Defendant argues that the ALJ did not err in these two

ways, but even if she did, those errors do not warrant remand,

because: (1) the Medical–Vocational Guidelines, or “Grids,”12

instruct that the inability to communicate in English has the

least significance when a claimant is found to be able to work

12 The Grids is a group of clear rules that dictate a finding of

disabled or not disabled based on a claimant’s vocational

factors (age, education, and work experience) and individual

RFC. See Medical–Vocational Guidelines of Appendix 2 of 20

C.F.R. pt. 404, subpt. P, app. 2.

17

at the sedentary, unskilled level;13 (ECF 13 at 6-7) (2) the VE

considered Plaintiff’s illiteracy because he saw the interpreter

at the hearing and heard Plaintiff say that she could understand

“some, but not a lot” of English; (id. at 9) (3) and if language

levels in the DOT controlled it would lead to the absurd result

that every individual who was illiterate in English would be

considered disabled (id. at 10).

The Court is not persuaded. First, the Grids are not

controlling in this case because Plaintiff has both exertional

and nonexertional limitations, and an ALJ must take testimony

from a VE or consider other similar evidence, such as a learned

treatise, rather than solely rely upon the Grids at step five.

Sykes v. Apfel, 228 F.3d 259, 273 (3d Cir. 2000). In

circumstances where the ALJ may refer only to the Grids, there

13 “While illiteracy or the inability to communicate in English

may significantly limit an individual's vocational scope, the

primary work functions in the bulk of unskilled work relate to

working with things (rather than with data or people) and in

these work functions at the unskilled level, literacy or ability

to communicate in English has the least significance. Similarly

the lack of relevant work experience would have little

significance since the bulk of unskilled jobs require no

qualifying work experience. Thus, the functional capability for

a full range of sedentary work represents sufficient numbers of

jobs to indicate substantial vocational scope for those

individuals age 18-44 even if they are illiterate or unable to

communicate in English.” Medical–Vocational Guidelines of

Appendix 2 of 20 C.F.R. pt. 404, subpt. P, app. 2, 201.00(i).

18

is no need for the ALJ to reconcile any conflicts between the VE

testimony and the DOT because the VE testimony is not necessary.

Where VE testimony is required, as is the case here, and a

conflict arises, the rule requiring the ALJ to explain how the

conflict impacts the step five analysis makes sense because

demonstrating that a claimant is capable of other jobs in the

national economy is the Commissioner’s burden to prove, and an

unexplained conflict could undermine the ALJ’s ultimate benefits

determination. Sykes, 228 F.3d at 263 (describing the ALJ’s

burden at step five).

Defendant’s other arguments are unavailing as well. The

presence of an interpreter at a hearing and the fact that the VE

heard Plaintiff indicate that she understood a little bit of

English does not automatically suggest the level of a claimant’s

English literacy and her overall education level. Here, it is

unknown to everyone what the VE considered to be Plaintiff’s

“education,” other than the VE, whose thoughts on the issue were

not elicited by the ALJ or otherwise volunteered by the VE.

Relatedly, contrary to Defendant’s argument that Plaintiff’s

counsel should have raised the issue at the hearing (ECF 13 at

4), it is not Plaintiff’s burden to establish other work in the

economy she is capable of performing. Moreover, the

19

determination that Plaintiff was illiterate was made in the

ALJ’s decision, which came well after the hearing.

Also unknown to everyone is how Plaintiff performed her

prior work such that, as Defendant argues (Id. at 12), it could

be extrapolated that her capability to perform a language level

1 job in the past rendered her equally capable of performing the

three jobs suggested by the VE. Thus, the fact that Plaintiff

worked in a language level 1 job previously does not – without

more information as to how Plaintiff performed that job –

support Defendant’s position, especially when the ALJ does not

articulate that same reasoning in her decision. See, e.g.,

Williams v. Astrue, 317 F. App’x 212, 214 (3d Cir. 2009) (noting

that a claimant’s past work was classified as medium level jobs,

but the claimant performed those prior jobs at the light level);

Karge v. Commissioner of Social Security, 2018 WL 6077981, at *2

(D.N.J. 2018)(noting that the claimant performed past work at

the sedentary level rather than at the light level as that past

work is classified by the DOT); De Diaz v. Berryhill, 2018 WL

6603865, at *3 (C.D. Cal. 2018)(rejecting the Commissioner’s

argument that because the plaintiff worked over ten years as a

machine operator, which is a Language Level One job, he could

perform a job with similar duties to those identified by the VE,

20

finding that the plaintiff never testified about the specifics

of her job as a machine operator, so the court was unable to

determine if her duties as she performed them were consistent

with the DOT definition, and noting that courts have routinely

rejected similar arguments (citing Obeso v. Colvin, No. 15-151,

2015 WL 10692651, at *16 (E.D. Cal. Apr. 20, 2015)(noting that

the Ninth Circuit has “resoundingly rejected” the argument that

a claimant’s prior work would excuse an ALJ from explaining how

the claimant’s language limitations would impact her ability to

perform jobs identified by the VE)).

Finally, a finding that the ALJ erred by not fulfilling her

obligations to inquire about and explain the conflict between

the VE’s testimony and the ALJ’s determination that Plaintiff

was illiterate in English does not result in a broader rule that

effectively deems every non-English speaker or illiterate person

to be disabled. As succinctly stated by the Ninth Circuit, “A

claimant is not per se disabled if he or she is illiterate. We

merely hold that in order for an ALJ to rely on a job

description in the Dictionary of Occupational Titles that fails

to comport with a claimant’s noted limitations, the ALJ must

definitively explain this deviation.” Pinto v. Massanari, 249

F.3d 840, 847 (9th Cir. 2001). This Court makes the same

21

observation here, which is in accord with the SSA regulations

and the law within the Third Circuit. See SSR 00-4p; Zirnsak,

777 F.3d at 617.

The Third Circuit has suggested that an ALJ’s failure to

address a conflict presented by a VE’s testimony does not

automatically warrant remand where “substantial evidence exists

in other portions of the record that can form an appropriate

basis to support the result.” Rutherford v. Barnhart, 399 F.3d

546, 557 (3d Cir. 2005). For example, in Zirnsak, the Third

Circuit noted that neither the ALJ nor the VE explained how a

sit/stand option would transform a subassembler job from a job

requiring “light” exertion level to a “sedentary” job, and found

that the ALJ did not elicit a reasonable explanation for this

inconsistency. Zirnsak, 777 F.3d at 619-20. The Third Circuit

held that the ALJ's failure to comply with the requirements of

SSR 00–4p in that instance was not fatal, however, because

substantial evidence supported the claimant’s ability to perform

three other jobs widely available in the national economy. Id.

at 620.

In contrast to Zirnsak, the Court cannot determine here

whether substantial evidence supports the ALJ’s conclusion that

Plaintiff is capable of performing work that exists in the

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national economy because a significant vocational factor –

Plaintiff’s illiteracy in English – was not addressed for any of

the jobs the ALJ determined Plaintiff was capable of performing.

The Court does not suggest that no jobs exist that

Plaintiff is able to perform simply because of her illiteracy in

English. In order to determine whether the ALJ has supported

her burden at step five, however, the ALJ must elicit from the

VE how a claimant’s illiteracy in English would affect the jobs

available to her, when also considering her RFC, age and prior

work experience. The ALJ must then explain how the VE’s

testimony impacts her ultimate conclusion at step five. In the

context of an ALJ’s non-compliance with SSR 00-4p as it pertains

to a claimant’s illiteracy, rather than for other exertional and

nonexertional limitations, many other courts have ordered remand

for the same reasons. See 2 Soc. Sec. Disab. Claims Prac. &

Proc. § 22:156 (2nd ed.)(citing Santiago v. Astrue, 181 Soc.

Sec. Rep. Serv. 233, 2012 WL 3194402 (E.D. Pa. 2012)(The ALJ

found the claimant was unable to communicate in English,

including reading, writing or speaking and, thus, was considered

illiterate for purposes of disability evaluation. The ALJ's

hypothetical to the VE did not include the claimant's language

problem; therefore, it could not be determined whether the VE's

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response to the posed question reflected claimant's inability to

communicate in English. Although the VE testified he took into

consideration the claimant's language problem, the VE concluded

without explanation that claimant could work as an usher or

ticket taker, according to the DOT, but the DOT provided that

those positions required English language skills, thereby

strongly suggesting that the VE's answer did not adequately take

into account claimant's significant language limitation.); Oeur

v. Astrue, 174 Soc. Sec. Rep. Serv. 196, 2012 WL 234642 (C.D.

Cal. 2012) (The ALJ found as part of claimant's RFC that he

could not read or write in English and required instructions

translated into the Cambodian language. However, the

descriptions in the DOT for the jobs the VE testified claimant

could perform all required him to read and write, and speak

English language level 1 and 2. The VE failed to acknowledge any

conflict with the DOT and provided no explanation for the

variance between the DOT and the jobs claimant could allegedly

do. The ALJ did not resolve this conflict and, in fact, asserted

without explanation that the VE's testimony was consistent with

the DOT. The ALJ's errors were not harmless as there was no

analysis of the jobs identified by the VE and the extent to

which the job base would be eroded by the claimant's lack of

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language skills, lack of education and requirement for work

instructions to be given in Cambodian); Centeno v. Astrue, 175

Soc. Sec. Rep. Serv. 610, 2012 WL 728073 (W.D. Tex.

2012)(Claimant, who testified through a translator and testified

that she could not read, write or speak English, was found by

the ALJ to be able to communicate “some” in English, without

explaining what that meant. The ALJ asked the VE to consider

someone with the claimant's education, without defining

claimant's educational level or English language proficiency. In

response, also without articulating what educational or language

level he was considering, the VE testified that such a person

could perform the requirements of occupations described in the

DOT. However, the referenced jobs required the ability to write

and speak simple sentences, and read a specified amount of

English. Without any discussion the ALJ determined that the VE's

testimony was consistent with information in the DOT. The ALJ's

failure to include in the hypothetical that claimant was only

able to communicate “some” English or articulate what he meant

by “some” was not harmless error. The Commissioner failed to

carry the burden of establishing claimant's education, namely

her English language ability, was sufficient to perform the jobs

identified by the VE)).

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III. CONCLUSION

When an ALJ has failed to apply the correct legal standards

and her conclusions are not supported by substantial evidence,

the Court must decide whether to remand the case for rehearing

or to reverse and order an award of benefits. Under Sentence

Four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner's decision “with or without

remanding the cause for rehearing.” Melkonyan v. Sullivan, 501

U.S. 89, 99 (1991).

Because the issue of how Plaintiff’s illiteracy in English

impacts Plaintiff’s ability to perform jobs in the national

economy is for the ALJ to determine based on testimony from a VE

– a determination on which this Court expresses no opinion - the

proper course in this action is to remand the matter for further

consideration. Consequently, the ALJ's otherwise thoughtful and

comprehensive determination that Plaintiff is not disabled as of

July 2, 2013 will be reversed and remanded for further

consideration consistent with this Opinion.

An accompanying Order will be issued.

Date: June 29, 2022 s/ Noel L. Hillman

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

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