Opinion

WHITE v. COMMISSIONER OF SOCIAL SECURITY

Court
District Court, D. New Jersey
Filed
Oct 28, 2022
Cited by
0 cases
Authority
More cited than 25.5%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

R.A.W.,

Plaintiff,

Civil No. 21-18960 (RMB)

v.

COMMISSIONER OF THE OPINION

SOCIAL SECURITY

ADMINISTRATION,

Defendant.

BUMB, U.S. District Judge:

This matter comes before the Court upon an appeal by Plaintiff from a denial

of social security disability benefits. For the reasons set forth below, the Court shall

vacate the decision of the Administrative Law Judge (“ALJ”) and remand for

proceedings consistent with this Opinion’s reasoning.

I. STANDARD OF REVIEW

When reviewing a final decision of an ALJ regarding disability benefits, the

Court must uphold the ALJ’s factual decisions if they are supported by “substantial

evidence.” 42 U.S.C. § 405(g); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). “Substantial evidence” means

“‘more than a mere scintilla” or “such relevant evidence as a reasonable mind might

accept as adequate.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Cons.

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Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Plummer, 186 F.3d at 427 (citations

omitted). In addition to the “substantial evidence” inquiry, the Court must also

determine whether the ALJ applied the correct legal standards. See Friedberg v.

Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); see also Sykes v. Apfel, 228 F.3d 259, 262

(3d Cir. 2000). The Court’s review of legal issues is plenary. Sykes, 228 F.3d at 262

(citing Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999)).

The Social Security Act defines “disability” 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 twelve months.” 42

U.S.C. § 1382(c)(a)(3)(A). The Act further states the following:

[A]n individual shall be determined to be under a disability only

if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which exists

in the national economy, regardless of whether such work exists

in the immediate area in which he lives, or whether a specific job

vacancy exists for him, or whether he would be hired if he applied

for work.

Id. § 1382(c)(a)(3)(B).

The Commissioner has promulgated a five-step, sequential analysis for

evaluating a claimant’s alleged disability status for purposes of social security

benefits, as outlined in 20 C.F.R. §§ 404.1520(a)(4)(i-v). The analysis proceeds as

follows:

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At step one, the ALJ determines whether the claimant is performing

“substantial gainful activity[.]” 20 C.F.R. §§ 404.1520(a)(4)(i),

416.920(a)(4)(i). If he is, he is not disabled. Id. Otherwise, the ALJ

moves on to step two.

At step two, the ALJ considers whether the claimant has any “severe

medically determinable physical or mental impairment” that meets

certain regulatory requirements. Id. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii). A “severe impairment” is one that “significantly

limits [the claimant’s] physical or mental ability to do basic work

activities[.]” Id. §§ 404.1520(c), 416.920(c). If the claimant lacks such

an impairment, he is not disabled. Id. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii). If he has such an impairment, the ALJ moves on to

step three.

At step three, the ALJ decides “whether the claimant’s impairments

meet or equal the requirements of an impairment listed in the

regulations[.]” Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir.

2010). If the claimant’s impairments do, he is disabled. 20 C.F.R. §§

404.1520(a)(4)(iii), 416.920(a)(4)(iii). If they do not, the ALJ moves on

to step four.

At step four, the ALJ assesses the claimant’s “residual functional

capacity” (“RFC”) and whether he can perform his “past relevant

work.” Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). A claimant’s

“[RFC] is the most [he] can still do despite [his] limitations.” Id. §§

404.1545(a)(1), 416.945(a)(1). If the claimant can perform his past

relevant work despite his limitations, he is not disabled. Id. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If he cannot, the ALJ moves on

to step five.

At step five, the ALJ examines whether the claimant “can make an

adjustment to other work[,]” considering his “[RFC,] ... age,

education, and work experience[.]” Id. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). That examination typically involves “one or more

hypothetical questions posed by the ALJ to [a] vocational expert.”

Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). If the claimant

can make an adjustment to other work, he is not disabled. 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If he cannot, he is disabled.

Hess v. Comm’r Soc. Sec., 931 F.3d 198, 201-02 (3d Cir. 2019) (alterations in original).

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II. FACTS

The Court recites herein only the facts that are necessary to its determination

on appeal. Plaintiff’s alleged onset date of disability is February 1, 2018, which date

was amended from June 1, 2018, at the administrative hearing held before the ALJ

on March 8, 2021. [Docket No. 9 (referred to hereafter as “Plaintiff’s Brief”), at 1

(citations omitted); Docket No. 7 (hereafter the “Administrative Record” or “AR”),

at 10.] Plaintiff highest level of education is an associate’s degree, and at the time of

her hearing, she was 58 years old and living with her two children (a 12-year old son

and a 27-year old daughter). [Plaintiff’s Brief at 3 (citations omitted).] Plaintiff has

past relevant work experience as a Home Attendant and Nurse Assistant. [AR at 25.]

Plaintiff protectively filed applications for DIB and SSI on October 31, 2018,

claiming disability status due to the following impairments: “Blind or low vision,

AFIB, Asthma, Breast Cancer stage 1, Cardiomyopathy, Hearing loss in both ears,

Left knee replacement, Pulmonary Embolism, [and] Obesity.” [AR at 336.]

Plaintiff’s claim for social security benefits was denied both initially and upon

reconsideration. [Plaintiff’s Brief at 1.] Plaintiff requested and then appeared for a

hearing before the Honorable Trina Moore (here the “ALJ”), which was held with

all participants appearing by telephone during the COVID-19 pandemic. [AR at 10.]

Impartial vocational expert Francesco Fazzolari (here the “VE”) and impartial

medical expert Dr. James W. Todd, M.D. both attended the hearing. [Id.] Plaintiff

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was also represented by attorney Lauren Tovinsky at the hearing.1 [Id.]

On April 21, 2021, the ALJ issued an unfavorable decision denying Plaintiff’s

claim for social security benefits. [Id. at 27.] Plaintiff appealed the ALJ’s decision

internally to the Appeals Council, but her appeal was denied on September 27, 2021.

[Id. at 1.] On October 18, 2021, Plaintiff filed a Complaint against the Commissioner

of Social Security, pursuant to 42 U.S.C. § 405(g), invoking the jurisdiction of this

Court. [Docket No. 1 ¶ 3.]

III. ALJ’S DETERMINATION

First, the ALJ determined that Plaintiff did not engage in any substantial

gainful activity since her alleged onset date. [AR at 13.] Moving on to Step Two of

the sequential analysis, the ALJ determined that Plaintiff had the following “severe”

impairments that “significantly limit her ability to perform basic work activities as

required by SSR 85-28”: obesity, breast cancer stage 1-in remission, obstructive sleep

apnea, atrial fibrillation, cardiomyopathy, asthma, bilateral hearing loss, and

diabetes mellitus. [Id. at 13–14.] Also at Step Two, the ALJ discussed, at length, why

many of Plaintiff’s other medically determinable impairments did not rise to the level

of a “severe” impairment based on the relevant medical evidence of record, including

her anemia, knee arthroplasty, carpal tunnel release, rotator cuff repair,

cholecystectomy, diverticulitis, bladder suspension, and decreased visual acuity. [AR

at 14–15.]

1 Plaintiff was also represented by another attorney named Robert Petruzzelli at such

time. [AR at 10.]

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At Step Three, the ALJ found that none of Plaintiff’s impairments, or any

combination thereof, met or medically equaled the severity of an impairment listed at

20 C.F.R. Part 404, subpart P, Appendix 1. [Id. at 16.] Before turning to Step Four,

the ALJ determined that Plaintiff retained the following residual functional capacity

(“RFC”) to perform “light work,” as defined in 20 C.F.R. 404.1567(b) and

416.967(b), but with certain limitations:

Occasionally climbing ramps and stairs. Never climbing ladders, ropes and

scaffolds. Never overhead reaching bilaterally. Occasionally balancing,

stooping, kneeling, crouching and crawling. Avoiding wetness, humidity,

pulmonary irritants, and hazards such as unprotected heights and moving

mechanical parts, loud noise.

[Id. at 17.]

Then, based on the above RFC and testimony from the VE, the ALJ found

that Plaintiff could perform her past relevant work as Home Attendant, but not as a

Nurse Assistant because the exertional level generally expected of that role exceeds

the maximum exertional limit set by her RFC. [Id. at 25.] However, the ALJ also

went on to find that Plaintiff had acquired work skills from her past relevant work

that could be transferred to another occupation with jobs in significant numbers in

the national economy, namely, in the role of Laboratory Clerk. [AR at 26.] Thus, the

ALJ ultimately concluded, at Step Five in the sequential analysis, that Plaintiff was

not disabled for purposes of social security benefits. [Id. at 27.]

IV. ANALYSIS

On appeal, Plaintiff asserts the following challenges to the ALJ’s decision:

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(1) the ALJ failed to provide a proper assessment of the Plaintiff’s RFC; (2) the

ALJ’s findings at Step Four and Step Five of the analysis are not supported by

substantial evidence; (3) the ALJ properly failed to weigh and consider the

statements of Plaintiff; (4) that the appointment of the Commissioner is

unconstitutional such that the ALJ did not have authority to decide Plaintiff’s case;

and (5) the Administrative Record provides a sufficient basis to award Plaintiff

summary judgment with respect to her benefits claim. The Court now addresses

these arguments, in turn.

A. The RFC Assessment is Not Supported by Substantial Evidence

Plaintiff’s first challenge is that the ALJ failed to incorporate the following

additional restriction in the RFC assessment: time-off from work “due to her

impairments and treatment for same” evidenced by the “various surgeries, hospital

visits, and medical procedures during the relevant period at issue.” [Plaintiff’s Brief

at 12.] More specifically, Plaintiff argues that the absence of this needed limitation is

especially significant given her diagnosis and treatment for breast cancer during the

alleged period of disability, as well as the testimony at the administrative hearing of

the VE that “either one or two absences per month on a consecutive monthly basis

where the individual is establishing a pattern of absenteeism . . . would not be

tolerated by any employer.” [AR at 84; Plaintiff’s Brief at 13–14.] Based on the

Court’s review of the record clearly showing Plaintiff’s history of surgery, radiation,

and chemotherapy during the relevant period for breast cancer, the Court agrees with

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Plaintiff that, at a minimum, the ALJ should have explained why such a limitation

was not included in her RFC assessment.

Indeed, Plaintiff’s alleged onset date of disability, as amended, is February 1,

2018, which was the same month that Plaintiff received abnormal results from a

mammogram screening, later confirmed to be breast cancer by biopsies taken in

March and May of 2018. [AR at 18 (citing AR, Ex. 4F).] On May 7, 2018, Plaintiff

underwent a right lumpectomy and sentinel node biopsy, then was to receive

radiation treatment and “five cycles of chemotherapy from July 2018 through

November 2018.” [Id.] After some complications, Plaintiff’s breast cancer was

responsive to such treatment, and Plaintiff has had no recurrence or further

chemotherapy since completing such treatment towards the end of 2018.2 [Plaintiff’s

Brief at 12.]

The Commissioner is correct that the ALJ did expressly discuss the course of

treatment for Plaintiff’s breast cancer, concluding that other than this extensive

treatment received in 2018, “the record documents an otherwise conservative course

of treatment with only sporadic emergency room presentations and short hospital

2 The record shows that Plaintiff was hospitalized on several occasions during this

same period, including a four (4) day hospitalization in August 2018 due to

pneumonia, a four (4) day hospitalization in September 2018 due to atrial fibrillation,

and then again for four (4) days in December 2018 for trans-esophageal

echocardiogram due to atrial fibrillation. [Plaintiff’s Brief at 12–13 (citations

omitted).] The record also notes two hospitalizations in 2019 due to diverticulitis, as

well as once in February 2020 for a “battery generator change” related to Plaintiff’s

implantable cardiac defibrillator (“ICD”) placement in 2011. [Id. at 13 (citations

omitted).]

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stays.” [AR at 19.] The Court finds that a central theme of the ALJ’s decision is that

Plaintiff’s breast cancer, prior to remission, is the only exceptional medical evidence

of record, but that it does not support the Plaintiff’s position that she is disabled

because it was effectively managed (other than a few short hospital stays and

emergency visits) and eventually treated. The ALJ also expressly acknowledged that

as of the date of her decision, the Plaintiff’s “current treatment consists of check-ups

with an oncologist.” [AR at 13.]

The fact that Plaintiff underwent treatment for breast cancer during the alleged

period of disability, on its own, suggests to this Court that she might be absent from

work more than once or twice a month during the period of alleged disability. Yet

the RFC includes no such limitation for time-off from work for medical

appointments, including follow-up appoints, which Plaintiff likely had many of even

after going into remission. In fact, the ALJ even acknowledged that Plaintiff’s

ongoing treatment included check-ups with an oncologist, and earlier in the decision,

the ALJ even states that after Plaintiff’s breast cancer diagnosis in February 2018,

Plaintiff “underwent surgery to remove nodes, radiation, and chemotherapy once a

week.” [AR at 13.] Thus, the ALJ decision is not entirely consistent with respect to

how frequently Plaintiff had medical appointments during the relevant period and

whether she would have required regular time of work for the same. The Social

Security Act defines disability as the:

inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected

9

to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A). Thus, the relevant inquiry here does touch upon how long

Plaintiff’s medically determinable impairments last (or can be expected to last).

Plaintiff’s breast cancer was quickly responsive to the treatment she received.

Nevertheless, the ALJ was required to consider limitations and restrictions imposed

by all of Plaintiff’s medically determinable impairments and resulting symptomology

in formulating her RFC assessment during the relevant period. SSR 96-8p. Further,

the ALJ determined that Plaintiff’s “breast cancer stage 1-in remission” was a

“severe” impairment at Step Two of the analysis. [AR at 13.] Thus, because the ALJ

made this finding at Step Two, the Court would expect limitations in the RFC

assessment to account for the same, and the limitation the Plaintiff challenges should

have been included, namely, time-off for regular medical appointments also seems

reasonable in light of the record.

Although the ALJ did expressly consider Plaintiff’s breast cancer treatment

and history of hospitalizations, the Court shall remand and request that the ALJ

expressly consider whether an additional limitation in the RFC assessment is

appropriate to account for Plaintiff’s routine time-off work for medical appointments.

The Court also finds that there is a clear distinction between time-off work for

frequent and routine medical appointments to manage ongoing treatment, and the

current analysis by the ALJ, which is more limited to the issue of why a disease

should no longer be considered as debilitating as it once was. The Court appreciates

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the difficulty presented to the ALJ in weighing such an extensive amount of medical

evidence that shows general improvement and eventual recovery for this specific

impairment. However, additional analysis will assist the Court on appeal in

reconciling some of the current findings in the ALJ’s decision: specifically, the

testimony of the VE regarding routine absences from work and whether any of her

impairments require an additional limitation in the RFC assessment to account for

regular time-off work, including Plaintiff’s breast cancer stage 1-in remission

determined to be a “severe” impairment at Step Two.

B. If the RFC Assessment is Amended on Remand, the ALJ Must

Revisit Her Findings at Step Four and Step Five

Any changes to the RFC assessment, on remand, would necessarily require

the ALJ to revisit her findings at subsequent steps of the sequential analysis, namely

Step Four and Step Five. Plaintiff argues on appeal that the ALJ’s current discussion

of both of these steps is not supported by substantial evidence. However, the Court

does not find these arguments persuasive.

At Step Four, the ALJ determined that Plaintiff had past relevant work

experience as a Home Attendant based on her prior jobs, including at Pilgrim Manor

(from October 2004 to May 2007) and at Kennedy University Hospital (in 2014).

Regarding her experience at Pilgrim Manor, Plaintiff asserts that “there is no

evidentiary basis upon which the ALJ can conclude that the job was actually

performed within the reduced range of light work.” [Plaintiff’s Brief at 19.] Plaintiff

also asserts that the work she performed at Kennedy University Hospital is not

11

representative of a Home Attendant because the role she performed there was more

akin to that of “a certified nurse’s assistant/technician.” [Plaintiff’s Brief at 19.] In

any event, the Court finds that Plaintiff has misconstrued what is actually required of

the ALJ at Step Four. It is not the case that the ALJ must find that each of Plaintiff’s

former jobs is consistent with the RFC assessment. [See Plaintiff’s Brief at 19 (arguing

that “there is no evidentiary basis” that her job at Pilgrim Manor “was actually

performed withing the reduced range of light work indicated in the RFC finding”).]

Instead, the relevant inquiry, cited by Plaintiff earlier in her brief, is whether Plaintiff

can generally “perform [her] past relevant work as that work is generally performed

in the national economy” consistent with her RFC assessment. [Plaintiff’s Brief at 14

(citing SSR 96-9p).]

Here, the ALJ relied on Plaintiff’s own testimony that her job at Kennedy

University Hospital involved lifting and carrying no more than 20 pounds in support

of the finding that she can perform the role of Home Attendant (as that job is actually

performed at the light exertional level) based on the current RFC assessment. [AR at

63.] In any event, the Court agrees with the Commissioner that “the record indicates

the Plaintiff performed several different home attendant jobs, involving light

exertional demands, that she does not dispute.” [Docket No. 12 (hereafter

“Commissioner’s Brief”), at 23.] Indeed, Plaintiff testified that she also worked for a

year at Nightingale Home Healthcare as a Home Health Aide. [AR at 66–67.] Thus,

even if Plaintiff’s work at Kennedy University Hospital and Pilgrim Manor were

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unrepresentative of a Home Attendant, Plaintiff still had other past relevant work

experience directly relevant to this job. The Court finds Plaintiff’s Step Four

argument unpersuasive.

The Court also finds Plaintiff’s argument regarding the ALJ’s findings at Step

Five unpersuasive. Plaintiff argues that the record does not support the ALJ’s finding

that “Plaintiff’s skills could transfer to the job of Laboratory Clerk and that this job is

a ‘representative occupation’ suggesting there are more jobs that can be performed.”

[Plaintiff’s Brief at 19–20.] The Court finds that this is also a mischaracterization of

the record by Plaintiff. In fact, the ALJ reasonably relied on the VE’s testimony—

finding him credible and that his testimony was consistent with the Dictionary of

Occupational Titles (“DOT”)—and found that Plaintiff had developed transferable

skill of “documentation and recording skills.” [AR at 26.] Then, based on the VE’s

testimony, the ALJ found that such acquired skills would qualify Plaintiff as a

Laboratory Clerk and that such position was not inconsistent with Plaintiff’s RFC.

[Id.] The Court also finds Plaintiff’s related argument that the ALJ violated the

Commissioner’s Program Operation Manual System (“POMS”) unconvincing since

POMS—which are internal regulations for issuing SSA policy and operating

instructions—“do not have the force of law.” Edelman v. Comm'r of Soc. Sec., 83 F.3d

68, 71 (3d Cir. 1996) (citing Schweiker v. Hansen, 450 U.S. 785, 789 (1981).

On appeal, the ALJ shall revisit Step Four and Step Five of the analysis only

to the extent that additional restrictions are incorporated into the RFC assessment,

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potentially impacting Plaintiff ability to perform the jobs presently identified.

C. Plaintiff’s Remaining Arguments Are Not Persuasive

Plaintiff’s next argument is that the ALJ failed to consider her own statements

regarding her impairments and their resulting symptomology “based in very large

part upon the Plaintiff’s receipt of unemployment benefits for just one quarter in

2020.” [Plaintiff’s Brief at 22.] One notable finding made by the ALJ was that

Plaintiff “received unemployment benefits in the third quarter of 2020” and that “the

collection of unemployment indicates a ready willing ability to work.” [AR at 22.]

However, the ALJ also correctly acknowledged and clarified that this finding was

“not dispositive” since the “[r]eceipt of unemployment insurance benefits does not

preclude the receipt of Social Security disability benefits.” [Id. at 13, 22 (citing SSR

00-1c).] Further, the Court agrees with the Commissioner that the ALJ did expressly

consider Plaintiff’s “statements concerning the intensity, persistence, and limiting

effects of those symptoms” finding them “not entirely consistent with the broader

record,” consisting primarily of medical evidence. [Commissioner’s Brief at 27.] The

Court is satisfied that the ALJ provided ample discussion as to why the medical

evidence he cites did not corroborate the full extent of Plaintiff’s symptomology as

she self reported, both in the ALJ’s relevant discussion of her findings at Step Two

and with respect to the RFC assessment.

Plaintiff also challenges the ALJ’s decision as unconstitutional because the

Commissioner serves a longer term than the President and is removable only for

14

cause, such that the ALJ could not have constitutionally derived her authority to

decide Plaintiff’s case. [Plaintiff’s Brief at 25 (citing Seila Law LLC v. CFPB, 140 S. Ct.

2183 (2020)).] This Court has rejected this same argument in prior social security

appeals. See S.F. v. Comm'r of the Soc. Sec. Admin., Civ. No. 21-15484 (RMB), 2022

WL 4596721, at *7 (D.N.J. Sept. 30, 2022). Importantly, the Supreme Court

explained in Collins that even if the relevant removal provision for the Commissioner

is unconstitutional, a plaintiff cannot obtain retrospective relief absent some showing

that the “unconstitutional provision . . . inflict[ed] compensable harm.” Collins v.

Yellen, 141 S. Ct. 1761, 1789 (2021). The Court agrees with Commissioner that

“Plaintiff cannot conceivably show that the President’s supposed inability to remove

the Commissioner without cause” affected, in any way, the ALJ’s decision or

Plaintiff’s application for social security benefits. Plaintiff has failed to allege any

circumstance showing that absent the challenged removal provision applicable to the

Commissioner, her case would have been decidedly differently. As this Court

previously explained, “there is no link between the ALJ’s decision . . . and the

allegedly unconstitutional removal provisions,” such that Plaintiff is unable to show

compensable harm. S.F. v. Comm'r of the Soc. Sec. Admin., 2022 WL 4596721, at *8.

Accordingly, Plaintiff’s constitutional argument fails.

Finally, the Court does not agree with Plaintiff’s remaining argument that the

record weighs heavily enough in her favor for the Court to grant her summary

judgment for her disability benefits claim. [Plaintiff’s Brief at 28.] As discussed

15

above, the Court finds that remand, as opposed to reversal, is appropriate to allow

the ALJ the opportunity to supplement her decision for purposes of appeal,

especially with respect to the RFC assessment.

V. CONCLUSION

For the foregoing reasons, the Court vacates the decision of the ALJ and

remands for proceedings consistent with the above analysis. On remand, the ALJ

shall consider whether an additional limitation in the RFC assessment is appropriate

to account for Plaintiff’s regular time-off work for medical appointments, including

for breast cancer treatment during the period of alleged disability. To the extent the

RFC is amended, the ALJ shall also revisit Step Four and Step Five of the sequential

analysis and explain whether the revised RFC has any impact on such subsequent

steps in the sequential analysis. An accompanying Order of today’s date shall issue.

Date: October 28, 2022 s/Renée Marie Bumb

Renée Marie Bumb

U.S. District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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