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Tawes v. Commissioner of Social Security

United States District Court, D. New Jersey

February 14, 2019

MICHAEL TAWES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          Jose L. Linares Chief'Judge

         This 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.

         I. BACKGROUND[1]

         Plaintiff 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.

         On 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).

         Plaintiff 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).

         II. STANDARD OF REVIEW

         This 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).

         "Despite 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)).

         III. ANALYSIS

         Under 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. § 1382c(a)(3)(B).

         As the 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.

         The ALJ 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).

         The 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." ...


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