United States District Court, D. New Jersey
L. Linares Chief'Judge
matter comes before the Court by way of the Commissioner of
Social Security's motion to remand Plaintiff Michael
Tawes' appeal of the Commissioner's final decision
denying him social security benefits. (ECF No. 18). Plaintiff
has opposed the Commissioner's motion, and instead urges
the Court to reverse the decision of the Commissioner. (ECF
No. 19). For the reasons set forth below, the Court reverses
the decision of the Commissioner.
suffered a traumatic brain injury in 2005. He applied for and
received social security benefits after the accident until
about 2010 or 2011, when he inherited between $70, 000 and
$80, 000 after his sister passed away. (R. at 46). According
to Plaintiff, he reported this inheritance to the Social
Security Administration, which cut off his benefits due to
the influx of cash. (R. at 46). That money is now gone, and
Plaintiff has reapplied for social security benefits.
August 6, 2013, Plaintiff filed an application for
supplemental social security income ("SSI") based
on his continuing disabilities resulting from the 2005
accident. (R. at 148). The claims were denied at the initial
level on November 19, 2013, and again at the reconsideration
level on March 3, 2014. (R. at 85, 92). Plaintiff then filed
a request for a hearing before an administrative law judge
("ALJ"). (R. at 95). On November 24, 2015,
Plaintiff testified at a hearing before ALJ Dina R. Loewy.
(R. at 36). ALJ Loewy denied Plaintiffs claim at step five,
finding that Plaintiff could perform jobs that exist in
significant numbers in the national economy. (R. at 30-31).
Plaintiff sought review of ALJ Loewy's decision from the
Appeals Council. (R. at 144). The Appeals Council denied
Plaintiffs request for review on July 25, 2017. (R. at 1).
then filed an appeal of the Commissioner's final decision
on August 30, 2017. (ECF No. 1). After the parties filed
their statements of contention pursuant to Local Civil Rule
9.1, and after Plaintiff filed his moving brief, the
Commissioner moved to remand this case to the Commissioner
for further analysis. (ECF No. 18). In her motion to remand,
the Commissioner informs the Court that the Appeals Council
had agreed to accept a voluntary remand of the case "to
further evaluate Plaintiffs RFC and specifically to address
the issue of his post-accident hand dominancy." (ECF No.
18-1 at 4). Plaintiff declines to accept the
Commissioner's voluntary remand, and instead argues that
there is adequate evidence in the record for this Court to
reverse the Commissioner's decision with a direction to
award SSI rather than remand this action for further
proceedings. (ECF No. 19).
STANDARD OF REVIEW
Court must affirm an ALJ's decision if it is supported by
substantial evidence. See 42 U.S.C. §§
405(g), 1383(c)(3). Substantial evidence is "more than a
mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). To determine whether an ALJ's
decision is supported by substantial evidence, this Court
must review the evidence in its totality. Daring v.
Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However, this
Court may not "weigh the evidence or substitute its
conclusions for those of the fact-finder." Williams
v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Consequently, this Court may not set an ALJ's decision
aside, "even if [it] would have decided the factual
inquiry differently." Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999).
the deference due to administrative decisions in disability
benefit cases, 'appellate courts retain a responsibility
to scrutinize the entire record and to reverse or remand if
the [Commissioner]'s decision is not supported by
substantial evidence.'" Morales v. Apfel,
225 F.3d 310, 317 (3d Cir. 2000) (quoting Smith v.
Califano, 637 F.2d 968, 970 (3d Cir. 1981)).
Reversal-rather than remand -is appropriate when "the
administrative record of the case has been fully developed
and when substantial evidence in the record as a whole
indicates that the claimant is disabled and entitled to
benefits." Id. at 320 (quoting Podedworny
v. Harris, 745 F.2d 210, 222 (3d Cir. 1984)).
the Social Security Act, the Social Security Administration
is authorized to pay Social Security Insurance to
"disabled" persons. 42 U.S.C. § 1382(a). A
person is "disabled" if "he is unable 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). A
person is unable to engage in substantial gainful activity
when his physical or mental 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." 42 U.S.C.
parties agree that the ALJ erred at in her RFC determination
and at step five, the Court need not explain the full
five-step sequential analysis that the ALJ must perform when
making a finding as to a claimant's disability. Rather,
in this case, the dispute is whether reversal or remand is
appropriate, so the Court's task is to determine whether
there is substantial evidence in the record indicating that
Plaintiff is disabled.
determined that Plaintiffs RFC was limited to "frequent
feeling with the left upper extremity, and occasional
handling and fingering with the left upper extremity,"
and that pursuant to that RFC, Plaintiff must avoid "all
exposure to hazardous machinery ... or operational control of
moving machinery." (R. at 25). Then at step five, after
being asked by the vocational expert for clarification, the
ALJ informed the vocational expert that Plaintiff has
"frequent use of his dominant hand and occasional use of
non-dominant hand." (R. at 53). Thus, based on the
understanding that Plaintiff had use of his dominant hand,
the vocational expert determined that there were several jobs
available to Plaintiff that required frequent use of
one's dominant hand and only occasional use of one's
non-dominant hand. (R. at 53). These jobs included: final
assembler, laminator I, and dowel inspector. (R. at 53-54).
Commissioner does not dispute that Plaintiff has met his
burden at steps one, two, and four, thus shifting the burden
of proof that Plaintiff is not disabled to the Commissioner
at step five. Sykes v. Apfel,228 F.3d 259, 263 (3d
Cir. 2000). This Court finds that the Commissioner has not
earned her burden here. First, the record establishes that
Plaintiff was left hand dominant prior to his injury. For
example, he testified that he was "left handed [his]
whole life," but that he had to start using his right
hand more after the accident, because his left hand tremors
too much to use it. (R. at 40). Dr. Alexander Hoffman, who
examined Plaintiff on behalf of Hudson County, also
determined that Plaintiff was normally "left hand
dominant, but . . . has had some problems with that hand
since he had the accident." ...