BARIK v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2018cv09287 - Document 20 (D.N.J. 2019)
Court Description: OPINION. Signed by Judge William J. Martini on 10/21/19. (gh, )
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BARIK v. COMMISSIONER OF SOCIAL SECURITY Doc. 20 UNITED STATES DISTRICT COURT FOR THE DISTRICT Of NEW JERSEY FARIDA BARIK, Civ. No.: 18-9287 Plaintiff, V. OPINION NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. WILLIAM J. MARTINI. U.S.D.J.: This matter comes before the Court on Plaintiff Farida Bank’s (“Plaintiff’) appeal of a decision by Defendant ColmTiissioner of Social Security (“Defendant”) ruling her not disabled. Plaintiffs brief makes clear that the issue presented for review is whether substantial evidence supports the Administrative Law Judge’s (“AU”) “ruling that Plaintiff had the ability to communicate in English.” P1. Br. at 1, ECF No. 15. For the reasons set forth below, the appeal is DENIED. I. BACKGROUND The facts relevant to this appeal are relatively narrow. Plaintiff filed for disability benefits on August 14, 2013, alleging an onset date of November 30, 2012. Admin. Rec. (“AR”) at 154, ECF No. 11. After receiving an unfavorable decision on her initial application and request for reconsideration, Plaintiff requested a hearing before an AU. AR at 73-85, 96. The AU found that despite severe impairments, Plaintiff was not disabled. AR at 19-32. The Appeals Counsel found no reason to review the AU decision, making the AU’s decision the final appealable order. AR at 1-7. In finding no disability, the AU ruled that Plaintiff was “able to communicate in English.” AR at 27. Plaintiff argues that ruling was not supported by substantial evidence and instead, “[t]here is substantial evidence in the file that Plaintiff was unable to speak or understand English and prefers to communicate in Bengali.” P1. Br. at 5. Thus, Plaintiff argues, she was disabled by definition on her forty-fifth birthday under the Social Security Administration’s (“SSA”) medical-vocational guidelines. Id. II. DISCUSSION A. Five-Step Sequential Analysis The SSA has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. § 404.1520, 416.920. In the first step, the Coimnissioner determines whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. Id. § 404.1520(b), 4 16.920(b). If not, the Commissioner 1 Dockets.Justia.com moves to step two to determine if the claimant’s alleged impairment, or combination of impairments, is “severe.” Id. § 404.1520(c), 416.920(c). If the claimant has a severe impairment, the Commissioner inquires in step three as to whether the impairment meets or equals the criteria of any impainhient found in the Listing of ImpainTients. Id. Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive benefits (and the analysis ends); if not, the Commissioner moves on to step four. Id. § 404.1520(d), 4 16.920(d). In the fourth step, the Commissioner decides whether, despite any severe impainnent, the claimant retains the Residual Functional Capacity (“RFC”) to perform past relevant work. Id. § 404.1520(e)-tO, 416.920(e)-(f). The claimant bears the burden of proof at each of these first four steps. At step five, the burden shifts to the Social Security Administration to demonstrate that the claimant is capable of performing other jobs that exist in significant numbers in the national economy in light of the claimant’s age, education, work experience, and RFC. Id. § 404.1520(g), 416.920(g); see Foitlos v. Comm ‘r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007) (citations omitted). B. Standard of Review The Court has plenary review of legal issues. See Chandler v. Comm ‘r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (cleaned up). Findings of fact, on the other hand, will be affinned if “there is substantial evidence to support such findings.” 42 U.S.C. § 405(g) & 1383(c). Courts are not permitted to re-weigh the evidence or impose their own factual determinations. Chandler, 667 F.3d at 359 (cleaned up). Instead, “substantial evidence” only requires “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. C. Substantial Evidence for Finding of English Ability Plaintiff contends that the AU’s determination that she could communicate in English (without providing further explanation) was reversible error. P1. Br. at 5 (citing AR at 27). Plaintiff points to various evidence of her inability to conmiunicate in English, including: (1) a disability report, (2) the fact that Plaintiffs lawyers completed her application on her behalf, (3) the use of a Bengali interpreter at the AU’s hearing, (4) the “Disability Determination Explanation” prepared at the initial application and reconsideration levels, and (5) a case analysis completed in 2014. Id. at 5-6. While the evidence cited by Plaintiff could support a finding that she does not speak English, the standard of review requires the Court to ask whether the AU’s finding was supported by substantial evidence, not whether there is opposing substantial evidence. See Johnson v. Comm ‘r of Soc. Sec., 497 F. App’x 199, 201 (3d Cir. 2012) (“[W]e will uphold the AU’s decision even if there is contrary evidence that would justify the opposite conclusion, as long as the ‘substantial evidence’ standard is satisfied.”). Here, there is substantial evidence that Plaintiff was able to communicate in English. Most significantly, Plaintiff testified as such. At the hearing, the AU said: “And I can tell because you’re answering some of my questions that you do understand and speak a little bit of English. Are you able to read and write English?” AR at 40. Plaintiff responded: “Yes, I do.” AR at 41. Further, earlier in the hearing, despite the presence of a translator, when the AU told Plaintiff “the issue before me is whether you are disabled,” Plaintiff herself responded “Yes, I am.” AR at 38. Plaintiff responded to many more questions in English too. See AR at 41-43. 2 While other evidence may support a contrary conclusion, there is undeniably “substantial evidence” that Plaintiff could communicate in English. See Chandler, 667 f.3d at 359 (requiring “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”). Given the standard of review, the Court will not reverse the AU’s decision to credit Plaintiffs own testimony over descriptions of Plaintiffs language abilities in various reports. See Id. D. Jobs Available Given Plaintiffs Ability Relatedly, Plaintiff argues the AU erred because he failed to account for (1) her difficulty speaking and understanding English and (2) the vocational expert’s (“yE”) testimony that he could not “come up with any jobs that should be appropriate” in response to a hypothetical question posed by the AL AR at 58; P1. Br. at 7; P1. Reply at 2-3, ECF No. 17. 1. Son, e Difficulty Speaking and Understanding English Contptetety As to difficulty speaking English, in posing hypothetical questions to the VE, the AU noted “[w]e’ve seen from the hearing that she does have some difficulty speaking and understanding English completely without assistance.” AR at 58. Plaintiff argues that “the AU failed to acknowledge the fact that [Plaintiffs] limited ability to communicate in English would impact her ability to work[, which is] a reversible and harmful error of law.” P1. Br. at 7. One stray remark, in the context of hypothetical questions, does not render the AU’s ultimate conclusion that Plaintiff could “communicate in English” erroneous. Therefore, the AU did not err in failing to explicitly analyze a limited language ability in his decision. In concluding Plaintiff could communicate in English, the AU cited 20 C.F.R. § 404.1564. That provision explains that: Because English is the dominant language of the country, it may be difficult for someone who doesn’t speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person’s ability to communicate in English when we evaluate what work, if any, he or she can do. 20 C.F.R. § 404.1564(b)(5). As to ability to read and write, the provision states “[w]e consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists.” Id. Therefore, implicit in the AU’s conclusion was that Plaintiff could communicate in English sufficiently to perform a basic job, including reading and writing simple messages. See id. As noted above, that conclusion is supported by substantial evidence. See supra Part II.C. An off-the-cuff remark that Plaintiff had some difficulty understanding English completely withoict assistance does not render the AU’s decision erroneous, particularly where the statement was made during a hearing in which Plaintiff herself testified that she could coiruriunicate in English. See AR at 58. The AU was free to conclude—as he did—that any language difficulties would not hamper her ability to perform basic work. See AR at 27. 2. Vocational Expert Testimony Regarding Available Jobs At the hearing, in response to a hypothetical question, the VE testified: Your Honor, I have some—in looking at the unskilled, sedentary occupational base, with the requirement that would be the educational requirement or the 3 reading and writing requirements I believe that you’re looking at for other positions not in a production oriented setting I don’t believe I’d be able to come with any jobs that should be appropriate. . . . AR at 58. Plaintiff seems to argue that given the VE’s testimony, the AU erred in concluding Plaintiff could still perform widely available jobs. P1. Br. at 6-7; Reply at 2-3. Plaintiff ignores the fact that the VE’s testimony was in response to a series of hypothetical questions posed by the AU. AR at 55-59. The hypothetical at issue assumed Plaintiffs ability to communicate in English “would be limited.” AR at 5$. However, the AU ultimately concluded Plaintiff could communicate in English. AR at 27. Therefore, the hypothetical individual described in the AU’s question does not match the AU’s ultimate conclusion regarding Plaintiffs abilities. See Id. Accordingly, the VE’s testimony that he could not “come up with any jobs that would be appropriate” for the hypothetical individual does not mean the AU erred in finding Plaintiff could work. AR at 58. As set forth in the AU’s decision, given Plaintiffs residual functional capacity and ability to communicate English, Plaintiff could work as a touch up screener, semi-conductor loader, or compact assembler. AR at 2$. The AU’s hypothetical question, and the VE’s answer thereto, does not change that fact. III. CONCLUSION For the reasons set forth above, Plaintiffs appeal of Defendant’s ruling that she is not disabled is DENIED. An appropriate Order follows. Date: October, 2019 4
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