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Pagan v. Commissioner of Social Security

United States District Court, D. New Jersey

January 18, 2018

SOLMA I. PAGAN, Plaintiff,


          KEVIN McNULTY, United States District Judge

         Ms. Solma Pagan brings this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claims to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and Supplemental Security Income ("SSI"), 42 U.S.C. § 1381. For the reasons set forth below, the decision of the Administrative Law Judge ("ALJ") is REMANDED.

         I. BACKGROUND

         Ms. Pagan seeks to reverse a finding that she did not meet the Social Security Act's definition of disability from October 26, 2012 to September 25, 2015. (R. 55; Pl. Br. I).[1] Ms. Pagan applied for DIB and SSI on March 11, 2013. (R. 47). In both applications, she alleged disability beginning October 26, 2012.[2] (R. 47). These claims were denied initially on July 30, 2013, and upon reconsideration on October 30, 2013. (R. 47, 192-205). On November 22, 2013, Ms. Pagan filed a written request for a hearing. (R. 47, 206-08). On April 29, 2015, Ms. Pagan appeared and testified at a hearing before ALJ Richard West. (R. 47, 72-88). Ms. Pagan was represented at the hearing by Ari Nat. (R. 72-88).

         The ALJ then submitted written interrogatories to Vocational Expert ("VE") Rocco J. Meola. (R. 381-88). The ALJ forwarded the VE's responses to Ms. Pagan's then-attorney. (R. 390-99). Ms. Pagan requested a supplemental hearing about those interrogatories. (R. 401). A notice was issued for a supplemental hearing on September 4, 2015 at 3:00pm. (R. 253-55). According to Ms. Pagan, she received a phone call on September 3, 2015 from her representative, stating that the hearing might be rescheduled for 11:30am; she would receive a telephone call if the time changed. (R. 39). At 11:15am on September 4, 2015- i.e., the day of the hearing-Ms. Pagan allegedly received a phone call from her attorney, who asked if she was going to attend the hearing at 11:30am. (R. 39). By that time, Ms. Pagan was unable to attend the hearing because it would take her at least thirty minutes to drive to the hearing office. (R. 39). Ms. Pagan's attorney then allegedly told her that her appearance was not necessary. (R. 39). The supplemental hearing was held on September 4, 2015 at 10:38am, without Ms. Pagan. (R. 47, 39-40, 74-87). VE Meola, Ms. Pagan's attorney Timothy Lodge, and ALJ Richard West attended. (R. 47).

         On September 25, 2015, the ALJ issued a decision which found her "not disabled" for purposes of the Social Security Act. (R. 47-55). Ms. Pagan sought review from the Appeals Council. (R. 1-4). At this time her attorneys terminated their relationship with her. (R. 37-38). Ms. Pagan then contracted with different attorneys. (R. 34; Pl. Br. 3-4). Additional evidence was submitted to the Appeals Council, (R. 1090-1154), which was not before the ALJ. (Pl. Br. 4). The Appeals Council found that there were no grounds for further review. (R. 1-4). Ms. Pagan then appealed to this Court, challenging the ALJ's determination that she was not disabled from October 26, 2012 to September 25, 2015. (PL Br. 1-4).


         To qualify for DIB or SSI, a claimant must meet income and resource limitations and show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted (or can be expected to last) for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382, l382c(a)(3)(A), (B); 20 C.F.R. § 416.905(a); see Ulig v. Comm'r Soc Sec, 570 Fed.Appx. 262, 264 (3d Cir. 2014); Diaz v. Comm'r of Soc. Sec, 577 F.3d 500, 503 (3d Cir. 2009).

         A. The Five-Step Process and This Court's Standard of Review

         Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This Court's review necessarily incorporates a determination of whether the ALJ properly followed the five-step process prescribed by regulation. The steps may be briefly summarized as follows:

Step One: Determine whether the claimant has engaged in substantial gainful activity since the onset date of die alleged disability. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three.
Step Three: Determine whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high level to identify clear cases of disability without further analysis.) If so, the claimant is automatically eligible to receive benefits; if not, move to step four. Id. §§ 404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f). If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to demonstrate that the claimant, considering her age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec, 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded.

         As to all legal issues, this Court conducts a plenary review. See Schaudeck v. Comm'r of Soc. Sec, 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings, this Court adheres to the ALJ's findings, as long as they are supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 4O5(g)). Where facts are disputed, this Court will "determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial evidence "is more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Id. (internal quotation marks and citation omitted).

[I]n evaluating whether substantial evidence supports the ALJ's findings ... leniency should be shown in establishing the claimant's disability, and ... the Secretary's responsibility to rebut it should be strictly construed. Due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.

Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks and citations omitted). When there is substantial evidence to support the ALJ's factual findings, however, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zimsak, 777 F.3d at 610-11 ("[W]e are mindful that we must ...

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