# Smales v. Saul

> District Court, M.D. Pennsylvania · September 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10412287

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting that the scope of review on legal matters is plenary

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
HEATHER ANN SMALES, ) CIVIL ACTION NO. 4:21-CV-789
Plaintiff )
)
v. )
) (ARBUCKLE, M.J.)
KILOLO KIJAKAZI,1 )
Acting Commissioner of Social Security )
Defendant )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Heather Ann Smales, an adult who lives in the Middle District of
Pennsylvania, seeks judicial review of the final decision of the Acting Commissioner
of Social Security (“Commissioner”) denying her application for supplemental
security income under Title XVI of the Social Security Act. Jurisdiction is conferred
on this Court pursuant to 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C. §405(g)
by reference).

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9,
2021. She is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d)
(providing that when a public officer sued in his or her official capacity ceases to
hold office while the action is pending, “the officer’s successor is automatically
substituted as a party.”); see also 42 U.S.C. § 405(g) (“Any action instituted in
accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).
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This matter is before me upon consent of the parties pursuant to 28 U.S.C.
§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. After reviewing the

parties’ briefs, the Commissioner’s final decision, and the relevant portions of the
certified administrative transcript, the court finds the Commissioner's final decision
is not supported by substantial evidence. Accordingly the Commissioner’s final

decision will be VACATED and this matter will be REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for a new
administrative hearing..
II. BACKGROUND & PROCEDURAL HISTORY

On October 16, 2018, Plaintiff protectively filed an application for
supplemental security income under Title XVI of the Social Security Act. (Admin.
Tr. 20). In this application, Plaintiff alleged she became disabled on July 1, 2018,
when she was 30 years old, due to the following conditions: mental issues, bipolar,

anxiety, and depression. (Admin. Tr. 20, 28, 150). Plaintiff alleges that the
combination of these conditions affects her ability to walk, talk, complete tasks,
concentrate, understand, and get along with others. (Admin. Tr. 174). Plaintiff has a

high school education. (Admin. Tr. 28). Before the onset of her impairments,
Plaintiff worked as a pressing machine operator, and packager/dry cleaning helper.
Id.

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On February 27, 2019, Plaintiff’s application was denied at the initial level of
administrative review. (Admin. Tr. 20). On April 10, 2019, Plaintiff requested an

administrative hearing. Id.
On September 17, 2019, Plaintiff appeared with counsel and testified during
a hearing before Administrative Law Judge Richard Zack (the “ALJ”). Id. On

October 28, 2019, the ALJ issued a decision denying Plaintiff’s application for
benefits. (Admin. Tr. 29). On December 30, 2019, Plaintiff requested that the
Appeals Council of the Office of Disability Adjudication and Review (“Appeals
Council”) review the ALJ’s decision. (Admin. Tr. 117-122). Along with his/her

request, Plaintiff submitted new evidence that was not available to the ALJ when the
ALJ’s decision was issued. (Admin. Tr. 13-14).
On February 26, 2021, the Appeals Council denied Plaintiff’s request for

review. (Admin. Tr. 1). In that denial, the Appeals Council addressed the additional
evidence as follows:
You submitted a statement from Matthew A. Berger, M.D., dated
February 24, 2020 (2 pages). We find this evidence does not show a
reasonable probability that it would change the outcome of the decision.
We did not exhibit this evidence.
(Admin. Tr. 2).
On April 30, 2021, Plaintiff filed a complaint in district court. (Doc. 1). In the
complaint, Plaintiff alleges that the ALJ’s decision denying the application is not
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supported by substantial evidence, and improperly applies the law. Id. As relief,
Plaintiff requests that the court reverse the Commissioner’s final decision and award

benefits beginning October 16, 2018. Id.
On October 29, 2021, the Commissioner filed an answer. (Doc. 21). In the
answer, the Commissioner maintains that the decision denying Plaintiff’s

application was made in accordance with the law and is supported by substantial
evidence. Id. Along with her answer, the Commissioner filed a certified transcript of
the administrative record. (Doc. 22).
Plaintiff’s Brief (Doc. 46), the Commissioner’s Brief (Doc. 27), and

Plaintiff’s Reply (Doc. 28) have been filed. This matter is now ready to decide.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal
principles governing Social Security Appeals.

A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT
A district court’s review of ALJ decisions in social security cases is limited to
the question of whether the findings of the final decision-maker are supported by

substantial evidence in the record. See 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3);
Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue,
901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean a

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large or considerable amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Pierce v.

Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a
preponderance of the evidence but more than a mere scintilla. Richardson v. Perales,
402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if

the ALJ ignores countervailing evidence or fails to resolve a conflict created by the
evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an
adequately developed factual record, substantial evidence may be “something less
than the weight of the evidence, and the possibility of drawing two inconsistent

conclusions from the evidence does not prevent [the ALJ’s decision] from being
supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S.
607, 620 (1966). “In determining if the Commissioner’s decision is supported by

substantial evidence the court must scrutinize the record as a whole.” Leslie v.
Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has underscored the limited scope of district court review
in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency
factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––, 135
S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence
standard, a court looks to an existing administrative record and asks
whether it contains “sufficien[t] evidence” to support the agency's
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factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And
whatever the meaning of “substantial” in other contexts, the threshold
for such evidentiary sufficiency is not high. Substantial evidence, this
Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales,
402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It
means—and means only—“such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Consolidated
Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S.
150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the
substantial-evidence standard to the deferential clearly-erroneous
standard).
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
In practice, this is a twofold task. First, the court determines whether the final
decision is supported by substantial evidence. To accomplish this task, the court
must decide not only whether “more than a scintilla” of evidence supports the ALJ’s
findings, but also whether those findings were made based on a correct application
of the law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.
Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote a lack of
substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913,
914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of a claim
requires the correct application of the law to the facts.”); see also Wright v. Sullivan,
900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is
plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court has plenary review of all legal
issues . . . .”). In doing so, however, the court is enjoined to refrain from trying to
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re-weigh evidence and “must not substitute [its] own judgment for that of the fact
finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).

Second, the court must ascertain whether the ALJ’s decision meets the burden
of articulation the courts demand to enable judicial review. As the Court of Appeals
has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for
his decision. 220 F.3d at 119. Conclusory statements . . . are
insufficient. The ALJ must provide a “discussion of the evidence” and
an “explanation of reasoning” for his conclusion sufficient to enable
judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 &
n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular
“magic” words: “Burnett does not require the ALJ to use particular
language or adhere to a particular format in conducting his analysis.”
Jones, 364 F.3d at 505.
Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP
SEQUENTIAL EVALUATION PROCESS
To receive benefits under the Social Security Act by reason of disability, a
claimant must demonstrate an 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. § 1382c(a)(3)(A); see

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also 20 C.F.R. § 416.905(a).2 To satisfy this requirement, a claimant must have a
severe physical or mental impairment that makes it impossible to do his or her

previous work or any other substantial gainful activity that exists in the national
economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a).
In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. § 416.920(a). Under this process,
the ALJ must sequentially determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment; (4) whether

the claimant is able to do his or her past relevant work; and (5) whether the claimant
is able to do any other work, considering his or her age, education, work experience
and residual functional capacity (“RFC”). 20 C.F.R. § 416.920(a)(4).

Between steps three and four, the ALJ must also assess a claimant’s RFC.
RFC is defined as “that which an individual is still able to do despite the limitations
caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 416.920(e); 20 C.F.R. §

2 Throughout this Opinion, I cite to the version of the administrative rulings and
regulations that were in effect on the date the Commissioner’s final decision was
issued. In this case, the ALJ’s decision, which serves as the final decision of the
Commissioner, was issued on October 28, 2019.
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416.945(a)(1). In making this assessment, the ALJ considers all the claimant’s
medically determinable impairments, including any non-severe impairments

identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents

him or her from engaging in any of his or her past relevant work. 42 U.S.C. §
1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §
416.912; Mason, 994 F.2d at 1064. Once this burden has been met by the claimant,
it shifts to the Commissioner at step five to show that jobs exist in significant number

in the national economy that the claimant could perform that are consistent with the
claimant’s age, education, work experience and RFC. 20 C.F.R. § 416.912(b)(3);
Mason, 994 F.2d at 1064.

C. GUIDELINES FOR THE ALJ’S EVALUATION OF A CLAIMANT’S
SUBJECTIVE STATEMENTS ABOUT SYMPTOMS
The Social Security Regulations and Rulings set out a two-step process to
evaluate a claimant’s subjective statements about his or her symptoms. 20 C.F.R. §
416.929.
First, subjective symptoms, such as pain or fatigue, will only be considered to

affect a claimant’s ability to do work activities if such symptoms result from a
medically determinable impairment. 20 C.F.R. § 416.929(b). Put differently, if there
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is no medically determinable impairment that could reasonably produce the
symptom alleged, the symptom cannot be found to affect the claimant’s ability to do

basic work activities. 20 C.F.R. § 416.929(b); SSR 16-3p, 2016 WL 5180304.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects
of the symptoms caused by the claimant’s medically determinable impairments. 20

C.F.R. § 416.929(c)(1). Symptoms will be determined to reduce a claimant’s
functional capacity only to the extent that the alleged limitations and restrictions can
reasonably be accepted as consistent with the ALJ’s review of the entire case record.
20 C.F.R. § 416.929(c)(4). This includes, but is not limited to, medical signs,

laboratory findings, diagnoses, medical opinions, prior administrative medical
findings, as well as information about how these symptoms affect a claimant’s
ability to work. The Social Security Administration has recognized that individuals

may experience their symptoms in different ways and may be limited by their
symptoms to a greater or lesser extent than other individuals with the same medical
impairments, signs, and laboratory findings. SSR 16-3p, 2017 WL 5180304 at *4.
Thus, to assist in the evaluation of a claimant’s subjective statements about

his or her symptoms, the Social Security Regulations identify seven factors which
may be relevant to the assessment of the severity or limiting effects of a claimant’s
medically determinable impairments. These factors include: the claimant’s daily

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activities; the location, duration, frequency, and intensity of the claimant’s pain or
other symptoms; any factor that precipitates or aggravates the claimant’s pain or

other symptoms; the type, dosage, effectiveness, and side effects of any medication
the claimant takes or has taken to alleviate his or her pain or other symptoms; any
treatment, other than medication, the claimant receives or has received for relief of

his or her pain or other symptoms; any measures the claimant uses or has used to
relieve his or her pain or other symptoms (e.g., lying flat on your back, standing for
15 to 20 minutes every hour, sleeping on a board, etc.); and any other factors
concerning functional limitations and restrictions due to pain or other symptoms. 20

C.F.R. § 416.929(c)(3).
Although the “statements of the individual concerning his or her symptoms
must be carefully considered, the ALJ is not required to credit them.” Chandler v.

Comm’r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011) .
IV. DISCUSSION
Plaintiff raised the following issues in her statement of errors:
(1) “Did the ALJ error abuse his discretion by finding that plaintiff was not
disabled pursuant to Social Security guidelines?” (Doc. 26, p. 2).3
Plaintiff’s brief is construed as raising the following arguments:

3 This court’s LR 83.40.4(b) provides that:
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(1) Substantial evidence does not support the ALJ’s decision to discount
Dr. Berger’s check-box PRT assessment and check-box medical source
statement.
(2) Substantial evidence does not support the ALJ’s decision because he
mischaracterized evidence to support his findings at step three.
(3) The ALJ did not, but should have, discussed Plaintiff’s husband’s
testimony about Plaintiff’s symptoms and limitations.
A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION
In his October 2019 decision, the ALJ evaluated Plaintiff’s application at steps
one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful
activity at any point between October 16, 2018 (Plaintiff’s application date) and

October 28, 2019 (the date the ALJ decision was issued) (“the relevant period”).
(Admin. Tr. 29).
At step two, the ALJ found that, during the relevant period, Plaintiff had the
following medically determinable severe impairments: mood disorder, anxiety

disorder, post-traumatic stress disorder, and schizophrenia. (Admin. Tr. 22).

This statement shall set forth in separate numbered paragraphs the
specific errors committed at the administrative level which entitle
plaintiff to relief. The court will consider only those errors specifically
identified in the briefs. A general argument that the findings of the
administrative law judge are not supported by substantial evidence is
not sufficient.
(emphasis added).
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At step three, the ALJ found that, during the relevant period, Plaintiff did not
have an impairment or combination of impairments that met or medically equaled

the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id.
Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ

found that, during the relevant period, Plaintiff retained the RFC to engage in all
ranges of work defined in 20 C.F.R. § 416.967 subject to the following nonexertional
limitations:
The claimant would have difficulty sustaining highly detailed or highly
complex occupations. She would have difficulty working in a job where
she was dealing directly with the public face-to-face, working as a team
member having face-to-face contact with several other coworkers and
supervisors who are part of that team, and working in close proximity
throughout the workday. The claimant would have difficulty if her job
took her to different locations day in and day out and she would have
to perform her duties among crowds of strangers on a regular basis. The
claimant maintains a baseline ability to have occasional contact with
coworkers, supervisors, and the public and could respond appropriately
with occasional contact. The claimant is able to understand, remember,
and carry out simple instructions and she can make simple work related
decisions. She could respond appropriately to work situations and
changes that you would typically see at simple, routine repetitive type
of job.
(Admin. Tr. 24).
At step four, the ALJ found that, during the relevant period, Plaintiff could
not do her past relevant work. (Admin. Tr. 28).
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At step five, the ALJ found that, considering Plaintiff’s age, education and
work experience, Plaintiff could engage in other work that existed in the national

economy. (Admin. Tr. 28-29). To support his conclusion, the ALJ relied on
testimony given by a vocational expert during Plaintiff’s administrative hearing and
cited the following three representative occupations: laundry worker/folder, DOT

#369.687-018; cleaner/polisher of small parts, DOT #709.687-010; and inserter,
DOT #920.687-138. Id.
B. WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S EVALUATION
OF PLAINTIFF’S SUBJECTIVE STATEMENTS ABOUT HER SYMPTOMS
In his decision, the ALJ summarized Plaintiff’s statements as follows:
The claimant alleged disability based on mental issues, bipolar
disorder, anxiety disorder, and depression (Ex.2E). She reported
difficulty focusing and often fought with her husband about going to
work. The claimant testified she heard voices and saw things that were
not there. She reported some days that she slept all day. The claimant
reported she could prepare sandwiches, otherwise her husband cooked.
The claimant reported she could do laundry. She reported getting
paranoid going out, but did not feel comfortable driving. She reported
she could shop once per month in stores. The claimant reported she did
not socialize with others. The claimant reported she could pay attention
for very limited time (Ex.5E). The claimant testified she had three
children, but only lived with one. She testified she heard voices that told
her to hurt people. Her husband testified the claimant could not be left
alone for eight hours.
(Admin. Tr. 25).
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The ALJ relied heavily on Plaintiff’s statements to support his evaluation of
the paragraph B criteria at step three. In doing so, the ALJ explained:

The severity of the claimant’s mental impairments, considered singly
and in combination, do not meet or medically equal the criteria of
listings 12.03, 12.04, 12.06, and 12.15. In making this finding, the
undersigned has considered whether the "paragraph B" criteria are
satisfied. To satisfy the "paragraph B" criteria, the mental impairments
must result in at least one extreme or two marked limitations in a broad
area of functioning which are: understanding, remembering, or
applying information; interacting with others; concentrating, persisting,
or maintaining pace; or adapting or managing themselves. A marked
limitation means functioning in this area independently, appropriately,
effectively, and on a sustained basis is seriously limited. An extreme
limitation is the inability to function independently, appropriately or
effectively, and on a sustained basis.
In understanding, remembering, or applying information, the claimant
has a moderate limitation. The claimant reported she could follow
written instructions very rarely and spoken instructions depending on
the day. However, she appropriately filled out the Function Report. The
claimant testified she lived with her husband and their two pets,
however, her husband did all of the household chores. During the
claimant’s psychological consultative examination, she had impaired
attention, concentration, and memory skill. Yet, her treatment records
revealed intact attention span and concentration. She had intact
memory. Further, the claimant reported she could perform personal
care and attend church. The undersigned finds the claimant has
moderate limitation in understanding, remembering, or applying
information.
In interacting with others, the claimant has a moderate limitation. The
claimant testified she did not like to go out in public and had one child
she lived with. However, she also reported she enjoyed going to church.
The claimant was repeatedly described as having an anxious affect, but
had good eye contact and intact speech. Within her treatment notes, she
reported anxiety, but she had no delusions. She had intact language
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processing. The undersigned finds the claimant has moderate limitation
in interacting with others.
With regard to concentrating, persisting, or maintaining pace, the
claimant has a moderate limitation. The claimant reported difficulty
paying attention and with following instructions. She reported anxiety
and panic attacks. However, the claimant’s treatment notes revealed
intact attention span and concentration. She had a cooperative attitude
with clear speech and logical thought processes. Nonetheless, the
claimant’s anxiety caused her fatigue and difficulty focusing. During
the psychological consultative examination, the claimant had reduced
cognitive functioning and concentration. The undersigned finds the
claimant has moderate limitation in concentrating, persisting, or
maintaining pace.
As for adapting or managing oneself, the claimant has experienced a
moderate limitation. The claimant reported she could not drive and
could barely ride in the car due to panic attacks. She inconsistently
reported whether she could shop in stores. The claimant testified her
husband performed most of the household tasks, but he also had two
jobs. The undersigned notes the claimant and her husband had a pet
and child living with them. The claimant’s psychological consultative
examination revealed she could perform personal care, but not
housework. However, in the treatment records, the claimant reported
she attended church and could perform some household tasks. She had
intact attention span and concentration. The undersigned finds the
claimant has moderate limitation in adapting or managing oneself.
Because the claimant’s mental impairments do not cause at least two
"marked" limitations or one "extreme" limitation, the "paragraph B"
criteria are not satisfied.
(Admin. Tr. 23-24) (emphasis added).
Plaintiff argues that the ALJ mischaracterized her statements and then relied
on those mischaracterizations throughout his decision. (Doc. 26, p. 10). She alleges
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that she does not live with any of her children, and that she never testified that she
could do laundry or personal care tasks. Id. Plaintiff also argues that the ALJ placed

undue emphasis on the fact that she attends church without developing what
functional skills that required. Id.
The Commissioner does not address this argument in her brief.

Plaintiff correctly notes that some of her testimony was mischaracterized.
Some, however, was not. Although Plaintiff did not testify about doing laundry or
personal care tasks during her administrative hearing, the ALJ says Plaintiff reported
an ability to do those tasks, and cited to a function report form. On that form, in the

area of “personal care” Plaintiff reported that she does not like to get dressed or
shower, and needs to be reminded to eat. (Admin. Tr. 170). During her
administrative hearing, Plaintiff testified that she could not brush her own hair.

(Admin. Tr. 55). The statement about the laundry was accurately characterized, but
the ALJ’s characterization of Plaintiff’s statements about her ability to engage in
personal care tasks was not.
During her administrative hearing, Plaintiff testified that she lives with her

husband and two pets. (Admin. Tr. 55). Plaintiff has three children, but each child
lives full time with their other parent. (Admin. Tr. 57). Full custody of one of the
children was awarded to the father after a legal battle where Plaintiff’s mental health

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was a factor in the decision. (Admin. Tr. 56). Plaintiff’s testimony about the
composition of her household, and the custody status of her children was clearly

mischaracterized.
In his decision, the ALJ cited Plaintiff’s ability to attend church as evidence
that Plaintiff had: moderate difficulty understanding, remembering and applying

information; moderate difficulty interacting with others; and a moderate limitation
adapting and managing herself. (Admin. Tr. 23). Plaintiff correctly points out that,
without some development, Plaintiff’s ability to attend church is not relevant to any
of the paragraph B criteria. It is not clear how much of the services Plaintiff

understands or remembers, it is not clear how large the congregation is or how
crowded the services are, and it is not clear whether Plaintiff is able to schedule and
transport herself or whether it is arranged by someone else.

To support his findings as to several of the criteria, the ALJ relied on
statements that were not accurate or not relevant. (Admin. Tr. 23). Therefore,
substantial evidence does not support his conclusions. Further, the ALJ assessed a
“moderate” limitation in each of the four paragraph B criteria. This is one level

below marked. 20 C.F.R. § 416.920a(c)(4). If properly evaluated, there is at least a
possibility that one or more “marked” limitations could be identified. Accordingly,
the court is compelled to remand this matter for a new administrative hearing.

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To the extent any further error exists, these errors can be addressed on remand.
V. CONCLUSION

Accordingly, I find that Plaintiff’s request for relief will be GRANTED as
follows:
(1) The final decision of the Commissioner will be VACATED.
(2) This case will be REMANDED to the Commissioner to conduct a new
administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g).
(3) Final judgment will be issued in favor of Heather Ann Smales.
(4) An appropriate Order will be issued.

Date: September 27, 2022 BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412287. Public record. Not legal advice.