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
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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
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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
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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
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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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