United States District Court, D. New Jersey
Alan
H. Polonsky, Esq. POLONSKY AND POLONSKY Attorney for
Plaintiff
Andrew
Charles Lynch, Special Assistant U.S. Attorney SOCIAL
SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL
Attorney for Defendant
OPINION
JEROME
B. SIMANDLE, U.S. DISTRICT JUDGE
I.
INTRODUCTION
This
matter comes before the Court pursuant to 42 U.S.C §
405(g) for review of the final decision of the Commissioner
of the Social Security Administration (“SSA”)
denying the application of Plaintiff Regina Karge
(“Plaintiff”) for Social Security Disability
Benefits and Supplemental Security Income under Title II and
XVI of the Social Security Act, 42 U.S.C. § 401 et
seq. Plaintiff, who suffers from multiple sclerosis,
degenerative disc disease, depression, and migraines, was
denied benefits for the period of disability from June 24,
2013, the alleged onset date of disability, to January 25,
2016, the date on which the Administrative Law Judge
(“ALJ”) issued a written decision.
In the
pending appeal, Plaintiff contends that the ALJ's
decision must be reversed and remanded on two grounds. First,
Plaintiff argues that the ALJ's finding as to her
Residual Functional Capacity (“RFC”) was not
supported by substantial evidence. Second, Plaintiff argues
that the ALJ abused her discretion by preventing
Plaintiff's counsel from fully cross-examining the
vocational expert and, therefore, the ALJ's step four and
step five determinations were not supported by substantial
evidence. For the reasons stated below, the Court will vacate
the decision of the ALJ and remand for further proceedings
consistent with this Opinion.
II.
BACKGROUND
A.
Procedural History
On
September 12, 2013, Plaintiff filed applications for Social
Security Disability Benefits and Supplemental Security Income
alleging she was disabled as of June 24, 2013. (R. 297-303.)
Plaintiff's claim was denied by the SSA on February 21,
2014. (R. 188-93.) Her claim was again denied upon
reconsideration on April 25, 2014. (R. 200-05.) A hearing was
held before ALJ Karen Shelton on December 16, 2015. (R.
32-104.) The ALJ issued an opinion on January 25, 2016,
denying Plaintiff benefits. (R. 12-27.) On May 7, 2017, the
Appeals Counsel denied Plaintiff's request for review.
(R. 1-5.) This appeal timely follows.
B.
Personal and Medical History
Plaintiff
was 33 years old on the alleged disability onset date and 35
years old at the time of her hearing before the
ALJ.[1](R. at 134.) She graduated from high school
and can speak English. (R. at 144.) From 2001 through 2006
and from 2007 until June 24, 2013, she worked as a child care
provider and teacher aide. (R. at 24-25, 59, 84-86, 155-56,
306-08.) Between 2006 and 2007, Plaintiff stayed home
full-time to take care of her children. (R. at 49.)
On June
24, 2013, Plaintiff was diagnosed by her treating
neurologist, Dr. Sayed Arif Ali Jaffrey, M.D., with multiple
sclerosis (“MS”), chronic migraines, and low back
pain. (R. at 397-99, 411.) Plaintiff met with Dr. Jaffrey
again on July 24, 2013 and reported feeling “all
right” and that she had experienced no side effects
from Rebiff. (R. at 394.) On July 29, 2013, Dr. Jaffrey wrote
that Plaintiff “is able to work with the following
restrictions: no frequent bending, no prolonged standing, no
lifting over 20 lbs, and no prolonged walking.” (R. at
412.) The following week, on August 7, 2013, Dr. Jaffrey
wrote that Plaintiff “is able to work with the
following restrictions: [a]void lifting over 20 lbs, avoid
frequent bending, avoid prolonged standing for more than one
hour at a time, avoid prolonged walking for more than one
hour at a time, [c]hange positions intermittently as
needed.” (R. at 413; see also R. 391-93.) On
August 4, 2014, Dr. Jaffrey opined, among other things, that
Plaintiff could not work full time, was only able to work
four hours per day, that she had limitations in climbing,
stooping, bending, and lifting, and that she would be unable
to work for more than 90 days but less than six months from
June 2014 to December 2014. (R. at 473-75.) Plaintiff
continued to treat with Dr. Jaffrey for her MS, low back
pain, chronic migraines, and depression until at least
November 2014. (R. at 382-90, 425-77.)
In
October and November 2013, Plaintiff met with her primary
care provider, Dr. Joseph Gallagher, D.O., who prescribed her
with Cymbalta for depression. (R. at 380-81, 480-81.)
Plaintiff continued to treat with Dr. Gallagher for
depression, as well as her MS, low back pain, and chronic
migraines. (R. at 486-87.) On January 16, 2015, Dr. Gallagher
opined that Plaintiff could not work full-time, was only able
to work four hours per day, and that she had limitations in
standing, walking, climbing, stooping, bending, and lifting.
(R. at 422-24.)
On
September 9, 2015, Plaintiff was examined by Dr. Francky
Merlin, M.D. (R. at 505-15.) Dr. Merlin confirmed
Plaintiff's MS and migraines diagnoses (R. at 506) and
opined that Plaintiff could only lift and carry up to 10
pounds occasionally, sit for four hours and walk for 30
minutes without interruption, and sit for four hours, stand
for two hours, and walk for one hour during an eight-hour
work day. (R. at 509-10.) Dr. Merlin further opined that
Plaintiff could only use her hands for between 1/3 and 2/3 of
the work day and her feet for up to 1/3 of the work day. (R.
at 511-12.)
C.
State Agency Consultants
Dr.
Melvin Golish, M.D., a State agency medical consultant,
reviewed Plaintiff's medical records and assessed her
physical residual functional capacity. (R. at 134-57.) Dr.
Golish opined that Plaintiff could occasionally lift and
carry 10 pounds, stand and walk for four hours and sit for
about six hours in an eight-hour work day, and occasionally
climb ramps or stairs, balance, stoop, kneel, crouch and
crawl, but could never climb ladders, ropes or scaffolds and
should avoid concentrated exposure to extreme cold, extreme
heat, wetness, humidity, and hazards. (R. at 141-43.)
Dr.
Caroline Shuback, M.D., another State agency medical
consultant, also reviewed Plaintiff's medical records and
assessed her physical residual functional capacity. (R. at
160-83.) Like Dr. Golish, Dr. Shuback opined that Plaintiff
could occasionally lift and carry 10 pounds, stand and walk
for four hours and sit for about six hours in an eight-hour
work day, and occasionally climb ramps or stairs, balance,
stoop, kneel, crouch and crawl, but could never climb
ladders, ropes or scaffolds and should avoid concentrated
exposure to extreme cold, extreme heat, wetness, humidity,
and hazards. (R. at 179-81.)
D.
Plaintiff's Activities
During
a hearing held by the ALJ on December 17, 2015, Plaintiff
testified that she was a single mother of three children who,
at the time of the hearing, were 9, 10, and 13 years old. (R.
at 43.) Plaintiff testified that she regularly drove her
children to and from school, as well as to their sporting
events. (R. at 69, 73.) She also sat with them to assist with
homework, oversaw their breakfast each morning, and prepared
a “family dinner” each night. (R. at 73-75.)
Plaintiff also testified that shortly after she was diagnosed
with MS in June 2013, she stopped working full-time as a
child care provider and teacher aid, but continued to work
part-time until in or around September 2014 when her
employer, Archway Programs, converted her to a
“substitute” and then “never called [her]
back to come in for a subbing position at all.” (R. at
55; see also R. at 414 (“[Plaintiff] was
working 25 hours per week, but as of January 2, 2014 she has
cut her work hours down to 14 hours per week.”)).
E.
Vocational Expert Testimony
During
Plaintiff's hearing in front of the ALJ, the ALJ also
heard testimony from Mitchel Schmidt, a vocational expert.
(R. at 84-103.) Based on Plaintiff's testimony, the
vocational expert classified her past work as a Child
Monitor, DOT 301.677-010, performed as described by DOT at a
medium exertional level, and as a Teacher Aid II, DOT
249.367-074, performed at a sedentary level rather than at a
light level, as described by DOT. (R. at 85-87.) The
vocational expert opined that a person with Plaintiff's
RFC could not work as a Child Monitor, either as performed by
Plaintiff or as defined by the DOT, or the work of a Teacher
Aid II, as defined by the DOT at the light level, but that
the same individual could perform the work of a Teacher Aid
II, as actually performed by Plaintiff at the sedentary
level. (R. 87.) The vocational expert further opined that the
same hypothetical individual could also perform the work of
an addressor, of which there are “approximately 90,
000” jobs in the national economy, nut sorter, of which
there are “about 35, 000 jobs” in the national
economy, and cuff sorter, of ...