BROWN v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAULA JEAN BROWN, )

)

Plaintiff, )

)

v. ) Civil Action No. 21-1593

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 10th day of March, 2023, upon consideration of Defendant’s Motion for

Summary Judgment (Doc. No. 17) filed in the above-captioned matter on June 17, 2022,

IT IS HEREBY ORDERED that said Motion is DENIED.

AND, further, upon consideration of Plaintiff’s Motion for Summary Judgment (Doc. No.

15) filed in the above-captioned matter on May 17, 2022,

IT IS HEREBY ORDERED that said Motion is GRANTED. Accordingly, this matter is

hereby remanded to the Commissioner of Social Security (“Commissioner”) for further

evaluation under sentence four of 42 U.S.C. § 405(g) in light of this Order.

I. Background

Plaintiff Paula Jean Brown protectively filed a claim for Supplemental Security Income

(“SSI”) benefits under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. § 1381 et seq.,

effective October 14, 2019, claiming that she became disabled on January 1, 2008,1 due to

Raynaud’s syndrome, bursitis, vision problems, bipolar disorder, depression, and an ankle

1 Despite this claim, because Plaintiff is seeking SSI benefits, she did not become eligible

for benefits until the month following the filing of her application. See 20 C.F.R. § 416.335.

problem. (R. 16, 219-27, 244). After being denied initially on February 26, 2020, and upon

reconsideration on September 4, 2020, Plaintiff sought, and obtained, a telephonic hearing before

an Administrative Law Judge (“ALJ”) on March 29, 2021. (R. 16, 142-46, 148-52, 153, 28-70).

In a decision dated June 9, 2021, the ALJ denied Plaintiff’s request for benefits. (R. 16-32). The

Appeals Council declined to review the ALJ’s decision on August 31, 2021. (R. 2-4). Plaintiff

filed a timely appeal with this Court, and the parties have filed cross-motions for summary

judgment.

II. Standard of Review

Judicial review of a social security case is based upon the pleadings and the transcript of

the record, and the scope of that review is limited to determining whether the Commissioner

applied the correct legal standards and whether the record, as a whole, contains substantial

evidence to support the Commissioner’s findings of fact. See 42 U.S.C. § 405(g); Matthews v.

Apfel, 239 F.3d 589, 592 (3d Cir. 2001) (noting that “‘[t]he findings of the Commissioner of

Social Security as to any fact, if supported by substantial evidence, shall be conclusive’”

(quoting § 405(g)); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)

(stating that the court has plenary review of all legal issues, and reviews the ALJ’s findings of

fact to determine whether they are supported by substantial evidence). If the district court finds

this to be so, it must uphold the Commissioner’s final decision. See Rutherford v. Barnhart, 399

F.3d 546, 552 (3d Cir. 2005). The Court may not set aside a decision that is supported by

substantial evidence “even if [it] would have decided the factual inquiry differently.” Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing § 405(g)); Monsour Med. Ctr. v. Heckler, 806

F.2d 1185, 1190-91 (3d Cir. 1986)).

“Substantial evidence” is defined as “more than a mere scintilla.” Plummer v. Apfel, 186

F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). It

means “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id.; Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). However, a “‘single piece

of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to

resolve, a conflict created by countervailing evidence.’” Morales v. Apfel, 225 F.3d 310, 317 (3d

Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “‘Nor is evidence

substantial if it is overwhelmed by other evidence – particularly certain types of evidence (e.g.,

that offered by treating physicians) – or if it really constitutes not evidence but mere

conclusion.’” Id. So as to facilitate the district court’s review, an ALJ’s findings must “be

accompanied by a clear and satisfactory explication of the basis on which [they] rest[].” Cotter

v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Decisions that are conclusory in their findings or

indicate the ALJ’s failure to consider all the evidence are not supported by substantial evidence.

See id. at 705-06. Moreover, the Court must ensure the ALJ did not “reject evidence for no

reason or for the wrong reason.” Id. at 706 (citing King v. Califano, 615 F.2d 1018 (4th Cir.

1980)).

A disability is established when the claimant can demonstrate some medically

determinable basis for an impairment that prevents him or her from engaging in any substantial

gainful activity for a statutory twelve-month period. See Fargnoli v. Massanari, 247 F.3d 34,

38-39 (3d Cir. 2001). “A claimant is considered unable to engage in any substantial gainful

activity ‘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 . . . .’” Id. at 39 (quoting 42 U.S.C. § 423(d)(2)(A)).

The Social Security Administration has promulgated regulations incorporating a five-step

sequential evaluation process in guiding ALJs in determining whether a claimant is under a

disability as defined by the Act. See 20 C.F.R. § 416.920. At Step One, the ALJ must determine

whether the claimant is currently engaging in substantial gainful activity. See id. at

§ 416.920(a)(4)(i). If so, the disability claim will be denied. See Bowen v. Yuckert, 482 U.S.

137, 140 (1987). If not, the second step of the process is to determine whether the claimant is

suffering from a severe impairment. See 20 C.F.R. § 416.920(a)(4)(ii). “An impairment or

combination of impairments is not severe if it does not significantly limit [the claimant’s]

physical or mental ability to do basic work activities.” Id. at § 416.922. If the claimant fails to

show that his or her impairments are “severe," he or she is ineligible for disability benefits. If

the claimant does have a severe impairment, however, the ALJ must proceed to Step Three and

determine whether the claimant’s impairment meets or equals the criteria for a listed impairment.

See id. at § 416.920(a)(4)(iii). If a claimant meets a listing, a finding of disability is

automatically directed. If the claimant does not meet a listing, the analysis proceeds to Steps

Four and Five.

In considering these steps, the ALJ must formulate the claimant’s residual functional

capacity (“RFC”). A claimant’s RFC is defined as the most that an individual is still able to do

despite the limitations caused by his or her impairments. See Fargnoli, 247 F.3d at 40; 20 C.F.R.

§ 416.945(a). At Step Four, it is the claimant’s burden of demonstrating an inability to perform

his or her past relevant work. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). If the ALJ

determines that the claimant lacks the RFC to resume his or her former occupation, the

evaluation then moves to the fifth and final step. See 20 C.F.R. § 416.920(a)(4)(iv).

At this stage, the burden of production shifts to the Commissioner, who must demonstrate

that the claimant is capable of performing other available work in the national economy in order

to deny a claim of disability. See id. at § 416.920(a)(4)(v). In making this determination, the

ALJ must consider the claimant’s RFC, age, education, and past work experience. See id. The

ALJ must further analyze the cumulative effect of all the claimant’s impairments in determining

whether he or she is capable of performing work and is not disabled. See id. at § 416.923.

III. The ALJ's Decision

In her June 9, 2021 decision, the ALJ applied the sequential evaluation process and found

that Plaintiff had not been engaged in substantial gainful activity since October 14, 2019, the

application date. (R. 18). The ALJ also found that Plaintiff met the second requirement of the

process insofar as she had several severe impairments, specifically left eye vision loss, tip

amputation on both hands, Raynaud’s/Buerger’s disease, bipolar disorder, alcohol abuse, and

cannabis abuse. (Id.). The ALJ found that Plaintiff’s alleged limitations of bursitis, hip pain,

and ankle pain did not qualify as severe impairments. (R. 18-19). The ALJ concluded that

Plaintiff’s impairments did not meet or equal any of the listings that would satisfy Step Three.

(R. 19-21).

The ALJ found that Plaintiff retained the RFC to perform light work, but with the

following non-exertional limitations:

- Plaintiff must have the option to alternate sitting and standing

every hour but remain on task;

- She can occasionally balance, stoop, kneel, crouch, crawl, and

climb ramps and stairs but never climb ladders, ropes, or

scaffolds;

- She is capable of reading newspaper and book print, viewing a

computer monitor, and discerning the size and shape of small

objects such as nuts, bolts, and screws;

- She can frequently handle, defined as gross manipulation, and

work with large objects such as boxes, buckets, and brooms;

- She is capable of frequent fingering, defined as fine

manipulation of items no smaller than the size of a ballpoint

pen;

- She must avoid concentrated exposure to extreme cold and

wetness and must avoid unprotected heights or moving

mechanical parts;

- She is able to understand, remember, and carry out simple

instructions and perform simple routine tasks such as those

akin to the requirements of work at SVP 1 or SVP 2 levels;

- She requires a low stress environment defined as no production

rate pace work, but rather goal-oriented work with occasional

and routine changes in work setting – routine change being that

which does not require alteration to the work method; and

- She is capable of occasional contact with supervisors, the

public, and co-workers.

(R. 21). In so finding, she found partially persuasive the opinion of consultative examiner James

Goodyear, M.D. (R. 710-27), and those of state reviewing agents Henry Scovern, M.D. (R. 106-

10), and Paul Fox, M.D. (R. 126-30). (R. 28-30). After determining that Plaintiff had no past

relevant work at Step Four of the process, the ALJ used a vocational expert (“VE”) to determine

whether Plaintiff could do jobs that exist in significant numbers in the national economy at Step

Five. (R. 31-32). The ALJ promulgated a number of hypothetical questions to the VE to

determine whether there were other jobs Plaintiff could perform, setting forth different

combinations of functional limitations. (R. 63-68). In response to the question setting forth the

limitations ultimately included in the RFC, the VE testified that Plaintiff could perform the

occupations of marker, order caller, and photocopy machine operator. (R. 31-32, 66-67).

Accordingly, the ALJ found that Plaintiff could do jobs that exist in significant numbers in the

national economy and that she, therefore, was not disabled. (R. 32).

IV. Legal Analysis

Plaintiff argues that the ALJ erred in finding that she retained the ability to handle and

finger frequently, rather than just occasionally. Specifically, she asserts that the ALJ’s

consideration of the opinion evidence did not properly consider differences in those opinions

regarding her manipulative capacity. The Commissioner does not dispute that the ALJ’s analysis

failed to account for these key distinctions in the opinion evidence, but rather, argues that the

error was harmless. The Court agrees that an error occurred but disagrees that it was harmless.

Accordingly, the Court will remand for further consideration consistent with this Order.

As noted above, the ALJ found Plaintiff to be limited to light work with additional non-

exertional limitations, including a limitation to frequent handling and fingering. In so doing, she

found partially persuasive the opinion of Dr. Goodyear, the consultative examiner, and those of

state reviewing agents Drs. Scovern and Fox. The ALJ noted that Dr. Goodyear had opined that

Plaintiff was limited to occasional handling, fingering, and feeling (R. 28, 719), but ultimately

found that this part of the opinion was not supported by or consistent with his examination

findings that Plaintiff had only mild finger tenderness, that her finger amputation sites were well-

healed, and that Plaintiff maintained the ability to use a zipper, button, and tie, although the

activities were protracted in duration and Plaintiff reported finger pain while doing them. The

ALJ also noted that Dr. Goodyear had found that Plaintiff had “intact hand and finger dexterity.”

(R. 29, 715). She concluded that a restriction in the RFC to frequent handling and fingering

adequately accounted for Dr. Goodyear’s findings. (R. 30).

The ALJ then considered the opinions of Drs. Scovern and Fox, also finding them to be

partially persuasive. She noted that Dr. Scovern opined that Plaintiff had manipulative

limitations including handling and fingering bilaterally. She further asserted that Dr. Fox’s

opinion was consistent with Dr. Scovern’s in this regard. (R. 30). However, as the parties both

acknowledge, this is not accurate. Though not stated by the ALJ, Dr. Scovern limited Plaintiff to

frequent handling and fingering, consistent with the ALJ’s ultimate RFC findings. (R. 109). Dr.

Fox, however, limited Plaintiff to occasional handling and fingering, inconsistent with the RFC

but consistent with the opinion of Dr. Goodyear. (R. 129). The ALJ does not acknowledge or

discuss this difference and appears to treat the opinions as both being consistent with a limitation

to frequent handling and fingering.

This distinction was material, as the VE testified that a hypothetical individual with the

RFC as stated could perform the jobs of marker, order caller, and photocopy machine operator.

(R. 66-67). However, when the ALJ altered the hypothetical to limit Plaintiff, inter alia, to

occasional handling and fingering, the VE responded, “The only position that would fit within

that hypothetical, Your Honor, would be that of a surveillance system monitor, which is

unskilled, SVP of 2, sedentary exertion.” (R. 68). Therefore, according to the VE, if Plaintiff’s

manipulative capacity was limited to an occasional, rather than a frequent basis, she would not

be able to perform the jobs that the ALJ found she could perform and on which she ultimately

based her Step Five findings. Given the ALJ’s failure to acknowledge or discuss that the state

reviewing agents differed on this crucial issue rendered her consideration of this evidence

insufficient, especially in light of the fact that the other opinion in the record contradicted the

ALJ’s findings on this point.

The Commissioner contends, nonetheless, that this mistake was harmless because the VE

did, in fact, find that a hypothetical individual limited to occasional handling and fingering could

still perform the position of surveillance system monitor. “An error is ‘harmless’ when, despite

the technical correctness of an appellant’s legal contention, there is also ‘no set of facts’ upon

which the appellant could recover.” Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). See

also Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (holding that remand is not

necessary where the error would not affect the outcome of the case). The Court cannot find that

no set of facts would allow Plaintiff to prevail in this case.

First, even assuming that the VE’s testimony would support a finding that Plaintiff could

perform the job of surveillance system monitor even if the ALJ, upon re-evaluation of the

evidence, determined that she was limited to occasional handling and fingering, it does not

necessarily demonstrate that Plaintiff would be able to perform a significant number of jobs so as

to satisfy Step Five. The SSA’s regulations explain how such a determination is made:

How we determine the existence of work. Work exists in the

national economy when there is a significant number of jobs (in

one or more occupations) having requirements which you are able

to meet with your physical or mental abilities and vocational

qualifications. Isolated jobs that exist only in very limited

numbers in relatively few locations outside of the region where

you live are not considered work which exists in the national

economy. We will not deny you disability benefits on the basis of

the existence of these kinds of jobs. If work that you can do does

not exist in the national economy, we will determine that you are

disabled. However, if work that you can do does exist in the

national economy, we will determine that you are not disabled.

20 C.F.R. § 416.966(b). Although “there is no bright line rule as to [what] number of jobs are

‘significant,’” Rhine v. Saul, No. 4:19-CV-1781, 2021 WL 254066, at *18 (M.D. Pa. Jan. 26,

2021), the Court finds that the VE’s testimony here is insufficient in any event.

Courts, including the Third Circuit Court of Appeals, have stated that it is sufficient at

Step Five for an ALJ to identify at least one occupation with a significant number of jobs in

the national economy that the claimant can perform. See Wilkinson v. Comm’r of Soc. Sec., 558

Fed. Appx. 254, 256 (3d Cir. 2014); Ahmad v. Comm’r of Soc. Sec., 531 Fed. Appx. 275, 277–78

(3d Cir. 2013); Harrold v. Berryhill, No. 2:17-CV-592, 2018 WL 658869, at *6 (W.D. Pa. Feb.

1, 2018); Wyman v. Colvin, No. CV 15-5721 (JBS), 2016 WL 9446650, at *9 (D.N.J. Aug. 1,

2016); Johnson v. Colvin, No. 2:14-CV-78, 2014 WL 6063435, at *4 (W.D. Pa. Nov. 12, 2014).

However, although the vocational expert in each such case identified only a single occupation

that the claimant could perform, he or she set forth a specific number of such jobs that would be

available. Here, the VE merely stated that the only position that would fit within the relevant

hypothetical was that of surveillance system monitor, without indicating how many jobs would

be available either locally or in the national economy. (R. 68). The ALJ accepted the VE’s

response without asking for clarification or asking any follow-up questions. In light of the

restrictive RFC in this case, a certain amount of erosion to the number of surveillance system

monitor jobs available to Plaintiff was not just possible but probable. The Court cannot merely

assume that the number of jobs that the VE might have identified would be sufficient to

constitute work that exists in significant numbers in the national economy, especially considering

that the Commissioner has the burden of showing that Plaintiff is capable of performing such

work. See 20 C.F.R. §§ 416.920(a)(4)(v) & (g), 416.960(c). Hence, remand is necessary.

This is particularly appropriate given that the basis for the ALJ’s finding that Plaintiff

could perform other work in the national economy at Step Five was that she could perform the

jobs of marker, order caller, and photocopy machine operator, all of which require the ability to

handle and finger frequently. (R. 31-32). The ALJ did not rely upon, or even mention in the

decision, the surveillance system monitor position. Her decision, therefore, was based on the

finding that Plaintiff could perform these three jobs, a finding that, based on the Court’s findings

herein, is not supported by substantial evidence. Pursuant to the Chenery doctrine, “[t]he

grounds upon which an administrative order must be judged are those upon which the record

discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). See also

Fargnoli, 247 F.3d at 44 n.7. Were the Court to find that the record demonstrates that Plaintiff

could perform a job not relied upon by the ALJ, it would be substituting its own grounds for

those of the Commissioner.

In this regard, the Court finds persuasive the reasoning in those cases addressing the

similar situation where the ALJ erroneously decided the case in the Commissioner’s favor at

Step Four of the sequential process, but the record arguably demonstrated that had the ALJ

continued, he or she would have resolved the case in the Commissioner’s favor at Step Five in

any event. See, e,g., Baines v. Astrue, 781 F. Supp. 2d 228, 237 (D. Del. 2011) (acknowledging

that “erroneous step four findings can be rendered harmless by the identification of other work

consistent with a plaintiff’s RFC at step five,” but noting that “the ALJ never completed the

alternative analysis by making the requisite findings regarding the vocational expert’s testimony

and its potential application to [the claimant].”); Lamb v. Colvin, No. 1:13-CV-00137 GSA, 2014

WL 3894919, at **6-7 (E.D. Cal. Aug. 4, 2014) (holding that, although an alternative Step Five

analysis by the ALJ may have rendered the Step Four error harmless, the ALJ engaged in no

such analysis and that the court, therefore, could not simply perform the Step Five analysis that

the ALJ had not done); Garcia v. Colvin, No. 12-C-4191, 2013 WL 3321509, at *11 (N.D. Ill.

June 28, 2013) (“We reject the Commissioner’s argument that the ALJ's step four finding is

harmless error given the VE's testimony that [the claimant] could perform other work in the

national economy. Not only are there other errors requiring remand here, the ALJ did not make

a step five finding and we cannot simply ’fill that gap.’”) (quoting Getch v. Astrue, 539 F.3d 473,

481 (7th Cir.2008)); Bell v. Barnhart, No. 01-4112-JAR, 2002 WL 31178223, at *2 (D. Kan.

Sept. 30, 2002) (“The Commissioner, and not the Court, should have the opportunity to make a

Step Five determination in the first instance.”).

Although those cases involved situations where the ALJ had rested his or her decision on

a Step Four determination later found to be in error, the same rationale applies here, where the

ALJ’s Step Five finding is not supported by substantial evidence and where the ALJ has made no

alternative Step Five findings that might render the error harmless. As courts have explained, the

harmless error doctrine does not permit the Commissioner to simply ask the court to accept an

alternative basis for a decision, when no such alternative basis was raised at the administrative

level, regardless of the fact that the record might support such a basis. See Spiva v. Astrue, 628

F.3d 346, 353 (7th Cir. 2010). The Court, in finding the VE’s testimony that Plaintiff could

perform other work in the national economy consistent with an RFC free from the tinge of the

ALJ’s error in evaluating the opinion evidence, would not be finding a harmless error, but rather

engaging in its own Step Five analysis.

This is very different than a case such as Walck v. Colvin, No. 1:15-CV-01265-CCC-

GBC, 2017 WL 3405115 (M.D. Pa. Mar. 17, 2017), report and recommendation adopted sub

nom. Walck v. Berryhill, No. 1:15-CV-1265, 2017 WL 3394399 (M.D. Pa. Aug. 8, 2017). There,

the ALJ’s error in finding that the claimant could perform certain jobs without properly

accounting for the frequency of the sit/stand option was harmless because the VE had testified

that the claimant could perform those very jobs regardless of the frequency. See id. at *8. Here,

the Court cannot find that the ALJ’s error in determining that Plaintiff could perform the jobs of

marker, order caller, and photocopy machine operator was harmless because the record does not,

in fact, demonstrate that Plaintiff could perform these jobs regardless of the error. At best, the

record could support an alternative finding that Plaintiff could do a different job based on a

different RFC. The ALJ, and not the Court, needs to perform this analysis in the first instance.

While the Court is not required to order remand “in quest of a perfect opinion” the

harmless error doctrine is one that the Court employs cautiously when reviewing the

Commissioner’s final decisions. Hayes v. Berryhill, No. 3:17-CV-00648, 2018 WL 3596858, at

*7 (M.D. Pa. June 20, 2018), report and recommendation adopted, No. 3:17-CV-648, 2018 WL

3584698 (M.D. Pa. July 26, 2018) (citing Moua v. Colvin, 541 Fed. Appx. 794, 798 (10th Cir.

2013)). Here, such caution requires that the case be returned to the ALJ to appropriately

consider the evidence, including the opinion evidence, in formulating Plaintiff’s RFC and in

determining whether, based on that RFC, Plaintiff could perform sufficient work to satisfy the

requirements of Step Five.

V. Conclusion

Accordingly, the Court remands this matter for further consideration of Plaintiff’s RFC

and the hypothetical question to the VE, including further analysis of the impact of the opinion

evidence, and of what jobs, if any, Plaintiff can perform at Step Five of the sequential analysis.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record