Karge v. Commissioner of Social Security

          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 ...