MOLINA VIROLA v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2018cv04778 - Document 28 (E.D. Pa. 2020)
Court Description: MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 1/21/2020. 1/22/2020 ENTERED AND COPIES E-MAILED.(amas)
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MOLINA VIROLA v. COMMISSIONER OF SOCIAL SECURITY Doc. 28 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E EASTERN D ISTRICT OF PEN N SYLVAN IA ROSA H . MOLIN A VIROLA, Pla in tiff, v. COMMISSION ER OF SOCIAL SECU RITY, D e fe n d an t. : : : : : : : CIVIL ACTION N O. 18 -CV-4 778 RICH ARD A. LLORET U .S. Magis trate Ju d ge Jan u ary 2 1, 2 0 2 0 MEMORAN D U M OPIN ION Ms. Rosa Molina Virola (“the Plaintiff” or Ms. Molina) appeals from the denial of her Social Security claim . ECF Doc. No. 2. She contends that rem and is appropriate, because 1) the Adm inistrative Law J udge (“ALJ ”) erred by failing to properly resolve conflicts between the Vocational Expert (“VE”) and the Dictionary of Occupational Titles (“DOT”), 2) the ALJ failed to properly explain his reasons for rejectin g som e lim itations described by a consulting physician, and 3) the ALJ was not properly appointed un der the Constitution’s Appointm ent Clause. Doc. No. 19, Plaintiff’s Brief (“Pl. Br.”) at 2. Before addressing Ms. Molina’s argum ents about whether she is disabled, I m ust address her claim that the presiding ALJ ’s appointm ent was im proper under the Appointm ents Clause of the Constitution. Pl. Br. at 9 (citing to Lucia v. SEC, 138 S. Ct. 20 44 (20 18)). The Com m issioner of Social Security (“the Com m issioner”) argues that Ms. Molina forfeited this claim by not challenging the ALJ ’s appointm ent in the agency proceeding below. Def. Br. at 16. After careful review, I find that the ALJ was im properly appointed under the Constitution, and that Ms. Molina did not forfeit her Appointm ents Dockets.Justia.com Clause claim because there is no requirem ent that a plaintiff exhaust all issues before the SSA. I further find it would have been futile for her to raise the claim before the agency. Therefore, Ms. Molina’s request for review is granted, and this m atter is rem anded to the Com m issioner for further proceedings in accordance with this opinion. Because I am rem anding the case based on the Lucia claim , it m ay be unnecessary for m e to address Ms. Molina’s other claim s. Nevertheless, to expedite the processing of this case in the event of appeal, I find that the ALJ erred by failing to require the VE to explain an in consistency between the VE’s opin ion and inform ation contained in the DOT. I therefore direct that the m atter be rem anded for further review by a Constitutionally appointed ALJ , consistent with this opinion. FACTS AN D PROCED U RAL H ISTORY Ms. Rosa Molina Virola (“the Plaintiff” or “Ms. Molina”) was born on Novem ber 7, 1973, and was therefore a “younger in dividual” under the applicable regulations. R. 232; 20 C.F.R. §§ 40 4.1563(c), 416.963(c). Though she had a twelfth-grade education in Puerto Rico, she could not read, write, or understand English. R. 96-97, 275. Ms. Molina had experience working as a housekeeper/ cleaner an d as a lot attendant, but stopped working in J une 20 10 , allegedly due to her im pairm ents. R. 97, 10 4, 276. Ms. Molina filed an application for Disability Insurance Benefits (DIB) on Decem ber 30 , 20 14 and an application for Supplem ental Security In com e (SSI) on February 20 , 20 15. Adm inistrative Record (“R.”) 16, 232-39, 242-43. After being den ied adm in istratively, R. 127, 128, Ms. Molina requested a hearing before an Adm inistrative Law J udge (ALJ ). R. 127-28, 231. Ms. Molina testified through a Spanish language interpreter at the hearing on Septem ber 26, 20 17, and a vocational expert testified, as well. R. 90 -10 8. On Decem ber 8 , 20 17, the ALJ issued an unfavorable decision, finding 2 that Ms. Molina was n ot disabled. 1 R. 16-32. The Appeals Council received a request for review on J anuary 2, 20 18 and denied the request by an order entered Septem ber 13, 20 18 . R. 6. Ms. Molina brought this civil action for judicial review under 42 U.S.C. §§ 40 5(g), 1383(c)(3). The parties have consented to m y jurisdiction, SSA has filed its answer along with the adm in istrative record, and the parties have subm itted their briefs. ECF Doc. Nos. 11 (consent), 12 (Defendant’s Answer), 13 (adm inistrative record), 19, 22 (Defendant’s Brief (“Def. Br.”)), 23 (Plaintiff’s Reply Brief (“Pl. Reply”). STAN D ARD OF REVIEW In reviewing an ALJ ’s disability determ ination, I m ust “determ ine whether it is supported by substantial eviden ce.” N ew ell v. Com m issioner of Social Security , 347 F.3d 541, 545 (3d Cir. 20 0 3) (citing to Richardson v. Perales, 40 2 U.S. 38 9, 390 (1971)); see also 42 U.S.C. § 40 5(g). “Substantial evidence has been defined as ‘such relevant eviden ce as a reasonable m ind m ight accept as adequate to support a conclusion.’” Id. (quoting Richardson, 40 2 U.S. at 40 1 (quoting Consolidated Edison Co. v. N LRB, 30 5 U.S. 197, 229 (1938))). Substantial evidence is “m ore than a m ere scintilla of evidence but m ay be less than a preponderance.” Id. (citation om itted). I m ay not weigh the eviden ce or substitute m y own conclusions for those of the ALJ . Chandler v. Com m ’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 20 11). Nevertheless, I exercise “plenary review over questions of law.” N ew ell, 347 F.3d at 545 (citation om itted). 1 The ALJ evaluated the case using the fam iliar five-step sequential process until a findin g of “disabled” or “not disabled” was reached. R.17-19; see Hess v. Com m issioner Social Security , 931 F.3d 198 , 20 1 (3d Cir. 20 19). The sequence requires an ALJ to assess whether a claim ant: (1) is en gaging in substantial gainful activity; (2) has a severe “m edically determ inable” physical or m ental im pairm ent or com bination of im pairm ents; (3) has an im pairm ent or com bination of im pairm ents that m eet or equal the criteria listed in the social security regulations and m andate a findin g of disability; (4) has the residual functional capacity to perform the requirem ents of his past relevant work, if any; and (5) is able to perform any other work in the national econom y, taking into consideration his residual functional capacity, age, education, and work experience. See 20 C.F.R. § 40 4.1520 (a)(4)(i)– (v). 3 An ALJ m ust provide sufficient detail in his opinion to perm it m eaningful judicial review. Burnett v. Com m issioner of Social Security Adm in., 220 F.3d 112, 120 (3d Cir. 20 0 0 ). When dealing with conflicting m edical eviden ce, the ALJ m ust describe the eviden ce and explain his resolution of the conflict. See Plum m er v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The Appointm ents Clause challenge is subject to “plenary review.” See N ational Labor Relations Board v. N ew Vista N ursing and Rehabilitation, 870 F.3d 113, 122 (3d Cir. 20 17); W illy v. Adm inistrative Review Bd., 423 F.3d 483, 490 (5th Cir. 20 0 5) (reviewing Appointm ents Clause challenge “de novo.”). D ISCU SSION A. Th is ca s e m u s t be d e cid e d d e n o v o by a p ro p e rly ap p o in te d ALJ. Ms. Molina contends that the ALJ who decided her case was not duly appointed, under the Constitution’s Appointm ent Clause. Pl. Br. at 9 (citing Lucia v. S.E.C., 138 S.Ct. 20 44 (20 18)). The Com m issioner concedes that the ALJ in this case was not properly appointed. Def. Br. at 16-17, n.4. On J uly 16, 20 18, well after the ALJ ’s decision in this case, and well after Ms. Molina’s request for review, the Com m issioner ratified the appointm ents of SSA ALJ s and Appeals Council adm inistrative appeals judges to address any Appointm ents Clause questions. Id. The Com m issioner argues that the Appointm ents Clause error was forfeited by Ms. Molina because she failed to raise it below. Id. at 16-27. The holding in Lucia and its application to Social Security claim s has been the subject of m uch debate in the lower courts. See, e.g., Dove-Richardson v. Berry hill, C.A. No. 19-35-LPS-MPT, 20 20 WL 10 90 34 (D. Del. 1/ 9/ 20 20 ) (rem anding based on a Lucia claim ); Harold v. Saul, 20 19 WL 60 0 3494 *5 n.8 (E.D. Pa. 20 19) (noting cases). The 4 issue is pending before the Third Circuit. See Bizarre v. Com m issioner, No. 19-1773 (April 17, 20 19). I have discussed the issue at length, m ost recently in Harold. As I said in Harold, [i]t rem ains the case, with respect to both the Appeals Council an d the ALJ , that neither the Social Security Act nor the agen cy’s regulations im pose an issue exhaustion requirem ent. Sim s m ade this clear in 20 0 0 . The Com m issioner now asks the lower courts to im pose a judicially created issue exhaustion requirem ent, even though the Suprem e Court has already said in Sim s that such a requirem ent was inappropriate in the absence of a statutory or agency choice to em brace issue exhaustion. What is m ore, neither Congress nor the Agency, in the 19 years since Sim s, have acted to im pose such a requirem ent. This is not a happy historical context for the Com m issioner’s position. If neither the agency nor Congress have seen fit to im pose an issue exhaustion requirem ent, after Sim s, it seem s alm ost forlorn for the Com m issioner to ask the lower courts to im pose one. The sam e reasons that counseled the Suprem e Court, Congress and the Social Security Adm inistration to abstain from im posing issue exhaustion – the non-adversarial nature of the Social Security process – should counsel lower courts to follow the sam e path. Id. at *4. For the reasons explained in Harold, I find that the claim was not forfeited, as there is no issue exhaustion requirem ent under the Social Security statutes or regulations, nor is it appropriate to im pose a judicially created rule. Id. Therefore, I will order a rem and to allow the SSA to assign a different, constitutionally appointed ALJ to review the case and m ake his or her indepen dent decision. B. Re m an d is re qu ire d to p e rm it th e ALJ to re s o lve co n flicts b e tw e e n th e VE’s te s tim o n y an d D OT lan gu age d e ve lo p m e n t re qu ire m e n ts . Plaintiff contends that there was a conflict between DOT language requirem ents and the VE’s opinion that Ms. Molina could perform certain jobs, a conflict that required explanation. Pl. Br. 2-4. The Com m issioner contends that there is no explicit requirem ent in the DOT that a claim ant’s language developm ent be in English, and that therefore there is no “conflict” that m ust be explained by the VE. Def. Br. at 12 (“The 5 DOT does not specifically address illiteracy in English.”). I find the Com m issioner’s argum ent unconvincing. The DOT should be read not as requiring developm ent in any language, but in one particular language, the one in which the requirem ent itself is written: English. This is im plicit in the introduction to the DOT’s “general education developm ent” section, which precedes the description of language developm ent: “[t]he description of the various levels of language an d m athem atical developm ent are based on the curricula taught in schools throughout the United States.” Curricula “taught in schools throughout the United State” are taught in English. Many other languages are taught as subjects, and som e specialized schools teach all courses in a language other than English, but English is the only language that is used in school curricula “throughout the United States.” The SSA regulations also recognize that the language developm ent requirem ent should focus on English language developm ent, com m enting that “the inability to com m unicate in English m ay significantly lim it an individual’s scope . . .” 20 C.F.R. § 40 4, Subpart P, App. 2, ¶ 20 2.0 0 (g). The point seem s obvious. While the inability to com m unicate in English m ay have less significance for jobs at an “unskilled level,” id., the DOT does not presum e that it has no significance, because even unskilled jobs are assigned a language developm ent level of 1. This m akes sense. Even unskilled laborers need to be able to follow sim ple instructions. In short, Ms. Molina’s inability to com m unicate in English needs to be taken into account by the vocational expert, because the DOT presum es that at least som e capacity to com m unicate in English is necessary even for unskilled jobs. 6 In this instance the VE explained that the inability to com m unicate in English did not disqualify Ms. Molina from perform ing a job as a type-copy exam iner, because the job did not involve reading English, but only m aking sure the type was within the proper borders. R. 10 6. What the VE did not explain was how Ms. Molina’s inability to speak or understand spoken English would im pact her ability to do the job. The DOT language requirem ents assum e at least rudim entary com petence in the English language. The VE needs to explain whether, based on her experience, the job can be perform ed even by som eone who can neither speak nor understand English, and therefore cannot follow sim ple instructions given in English. This the VE did not do, nor did the VE explain how Ms. Molina was to function at the table worker and bench hand jobs, which DOT also presum es require som e m inim al com peten ce in English. Reading the DOT language requirem ent this way does not require a “per se” finding of disability for som eone who does not speak or write English. See Def. Br. 12. SSA regulations sim ply require that the VE explain whether, based on her experience, the job can in fact be perform ed without speaking or writing English, notwithstanding the DOT presum ption. That is not an im possible burden, or even a particularly difficult burden, to im pose on an ALJ or VE. If the SSA wishes to am end its regulations to deal with this issue categorically, rather than case by case, it is free to do so. In the m eantim e, when a claim ant does not speak or understand English an ALJ should require evidence addressing the DOT’s presum ptive language developm ent requirem ents as part of the inform ation elicited from the VE about the claim ant’s ability to perform work. 7 C. Th e ALJ an d VE p ro p e rly to o k in to acco u n t Ms . Mo lin a’s le ft-h a n d lim itatio n s . The ALJ lim ited Ms. Molina to occasional reaching and handling on her left hand, but not her right. R. 23. Plaintiff contends that the VE should have explained a discrepan cy between the DOT and the VE’s opinion centering on Ms. Molina’s reaching and handling capabilities. Pl. Br. at. 4-5. The parties agree with the VE that there is no distinction m ade in the DOT between left/ right reaching and handling. Pl. Br. 5; Def. Br. 13; R. 10 7. Thus, there is no definitional requirem ent that a lim itation on the nondom inant left hand determ ines an overall lim itation on reaching an d handling. There is no explicit discrepancy between the DOT job description inform ation and the VE’s opinion. The VE explained that he took into account the lim itation to Ms. Molina’s left hand and opined that she could still perform the jobs identified by the VE. R. 10 7. The RFC determ ined by the ALJ did the sam e. There was no error. D . Th e ALJ an d VE p ro p e rly to o k in to acco u n t Ms . Mo lin a’s re as o n in g le ve l. Plaintiff contends that the RFC did not properly take into account Ms. Molina’s reasoning level, based on DOT requirem ents for the jobs identified by the VE. The ALJ lim ited Ms. Molina “to perform ing routine tasks, [and] to sim ple work-related decisions. . .” R. 23. The job of type-copy exam in er requires reasoning level 2; the jobs of ben ch hand and table worker require reasoning level 1. The DOT defines reasoning level 1 as the ability to [a]pply com m onsense understanding to carry out sim ple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job. See https:/ / occupation alinfo.org/ appendxc_ 1.htm l# III, accessed on 1/ 14/ 20 20 at 11:41. 8 The DOT defines reasoning level 2 as the ability to [a]pply com m onsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problem s involving a few concrete variables in or from standardized situations. Id. The reasoning level determ ined by the ALJ was not lim ited to the ability to follow sim ple one or two-step instructions, which m ight trigger concern about her ability to perform jobs that require reasoning level 2. See Harden v. Com m issioner of Social Sec., No. 13– 90 6, 20 14 WL 4792294, at *5 (W.D. Pa. 20 14). Instead, the ALJ determ in ed that Ms. Molina can perform routine tasks and m ake sim ple work-related decisions. Such a lim itation does not disqualify the plain tiff from work that requires reasoning level 2, which requires the ability to follow “detailed but uninvolved written or oral instructions [and to] [d]eal with problem s in volving a few concrete variables in or from standardized situations.” The ALJ ’s determ in ation certainly does not disqualify Ms. Molina from jobs that only require reason ing level 1. Since two of the jobs identified by the VE require only reasoning level 1, there are jobs in the national econom y for which Ms. Molina is qualified, even if there is a question about her ability to cope with a job that requires reasonin g level 2 (type-copy exam iner). E. Th e n e w ly a p p o in te d ALJ m ay re co n s id e r th e co n s u ltin g e xam in e r’s o p in io n o n re m an d . Because the case will be reviewed by another ALJ on rem and, it is not necessary to decide whether the ALJ properly evaluated the m edical opinion of the consulting exam iner, Dr. Am undson. Pl. Br. at 7. 9 CON CLU SION For the reasons I have given, I conclude that the m atter m ust be reversed and rem anded for consideration by a different, properly appointed ALJ . I also conclude that the ALJ on rem and should take testim ony from the VE about the effect, if any, of Ms. Molina’s language lim itations on her ability to perform jobs identified by the VE and described in the DOT, taking into account the DOT’s language developm ent requirem ents. BY TH E COU RT: s/ Richard A. Lloret RICH ARD A. LLORET U .S. Magis trate Ju d ge 10
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