MARQUISE v. COMMISSIONER OF SOCIAL SECURITY (2023)

DECISION AND ORDER

INTRODUCTION

Represented by counsel, Plaintiff Marquise G. (“Plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (the “Act”), seeking review of the final decision of the Commissioner of Social Security (the “Commissioner,” or “Defendant”) denying his applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 8; Dkt. 10), and Plaintiff's reply (Dkt. 11). For the reasons discussed below, Plaintiff's motion (Dkt. 8) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion (Dkt. 10) is denied.

BACKGROUND

Plaintiff protectively filed his applications for DIB and SSI on July 19, 2018. (Dkt. 4 at 59, 132-33).¹ In his applications, Plaintiff alleged disability beginning October 5, 2016, due to hearing problems in both ears, anxiety, and ADHD. (Id. at 59, 248). Plaintiff's applications were initially denied on November 28, 2018. (Id. at 59, 134-41). A telephone hearing was held before administrative law judge (“ALJ”) Mary Mattimore on August 24, 2020. (Id. at 59, 87-131). At the hearing, the ALJ informed Plaintiff of his right to representation, but Plaintiff chose to appear and testify without the assistance of an attorney or other representative. (Id. at 59, 91-92). On November 2, 2020, the ALJ issued an unfavorable decision. (Id. at 56-69). Plaintiff requested Appeals Council review; his request was denied on August 10, 2021, making the ALJ's determination the Commissioner's final decision. (Id. at 5-8). This action followed.

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the [Social Security Administration (“SSA”)], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to “determine de novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, “[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

II. Disability Determination

An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is “severe” within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of “not disabled.” If the claimant does have at least one severe impairment, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”). Id. §§ 404.1520(d), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement, id. §§ 404.1509, 416.909, the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity (“RFC”), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. §§ 404.1520(e), 416.920(e).

The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. §§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. §§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant “retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy” in light of the claimant's age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).

DISCUSSION

I. The ALJ's Decision

In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on September 30, 2018. (Dkt. 4 at 61). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since October 5, 2016, the alleged onset date. (Id.).

At step two, the ALJ found that Plaintiff suffered from the severe impairments of: “bilateral sensorineural hearing loss; asthma; anxiety disorder; major depressive disorder; ADHD and PTSD.” (Id. at 62). The ALJ further found that Plaintiff's medically determinable impairments of idiopathic chest pain, allergies, acute appendicitis, and syncope/palpitations were non-severe. (Id.).

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id.). The ALJ particularly considered the criteria of Listings 2.10, 3.03, 12.04, 12.06, 12.11, and 12.15 in reaching her conclusion. (Id. at 62-63).

Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels, but with the following non-exertional limitations:

no concentrated exposure to fumes, odors, dust, gases or other pulmonary irritants; can work in a moderate noise level environment as defined in Appendix D of the Selected Characteristics of Occupations; is limited to occupations where oral communication is face to face; is limited to jobs where all oral communication is short, simple and clear; limited to occupations where telephones and other audio-visual equipment are not required to perform the work or must have the ability to use volume controls or speaker capability; can have no exposure to hazardous machines, unprotected heights, cannot operate heavy machinery or work in a factory setting; can perform simple routine work and make simple workplace decisions not at production rate pace (assembly line); can tolerate minimal changes in workplace processes and settings; can tolerate occasional interaction with supervisors, co-workers and the public but no tandem or team work on a production line.

(Id. at 63-64). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 68).

At step five, the ALJ relied on the testimony of a vocational expert (“VE”) to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of dishwasher, cafeteria attendant, and cleaner. (Id. at 69). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id.).

II. Remand for Further Administrative Proceedings is Required

Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ failed to abide by the Hearings, Appeals, and Litigation Law (“HALLEX”) Manual, because she admitted into evidence material which Plaintiff was unable to review prior to the hearing, as well as obtained, and relied upon, testimony from the VE when Plaintiff did not have the opportunity to review his resume, and (2) the noise limitations included in the RFC finding are not supported by substantial evidence. (Dkt. 8-1 at 18-25). For the following reasons, the matter is remanded for further administrative proceedings.

A. Plaintiff's Bilateral Hearing Impairment and the Noise Limitations

In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.” Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013). It is well-settled that an ALJ's conclusion need not “perfectly correspond with any of the opinions of medical sources cited in his decision.” Id. However, an ALJ is not a medical professional, and “is not qualified to assess a claimant's RFC on the basis of bare medical findings.” Ortiz v. Colvin, 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words:

An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may not substitute his own judgment for competent medical opinion․’ This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC.

Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citations omitted). “[A]s a result[,] an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence.” Dennis v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted). However, at bottom, “[a]n RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ, as the Commissioner's regulations make clear.” Curry v. Comm'r of Soc. Sec., 855 F. App'x 46, 48 n.3 (2d Cir. 2021).

At step two of the sequential analysis, the ALJ found that Plaintiff had the severe impairment of bilateral sensorineural hearing loss. (Dkt. 4 at 62). In the written determination, the ALJ discussed the evidence pertaining to Plaintiff's hearing impairment, including that Plaintiff used hearing aids and had struggled with a job at McDonald's because he had problems hearing. (Id. at 64). Plaintiff turns on closed captioning when watching television. (Id.). Plaintiff's mother testified that he can hear “sometimes,” she has to repeat things for Plaintiff to understand, and noted that Plaintiff reads lips more. (Id. at 65). The ALJ also noted that Plaintiff did not have hearing aids in at the time of the hearing, but had the phone on speaker.² (Id. at 67). As to medical evidence, Russell Lee, M.D. assessed Plaintiff with hearing loss, and the state agency medical consultant, J. Poss, provided bilateral hearing restrictions, although neither provider gave a meaningful assessment of Plaintiff's work-related functional limitations based on his bilateral hearing loss. (Id. at 65; see also id. at 491-93, 502-04). Further, treatment records from the WCA Department of Speech and Hearing reveal that Plaintiff was diagnosed with bilateral sensorineural hearing loss. (See id. at 65).

As to opinion evidence, the ALJ discussed Plaintiff's November 2, 2018 consultative examination with Hongbiao Liu, M.D. (Id.; see also id. at 495-97). Dr. Liu performed an assessment of Plaintiff's hearing, noting that he had moderate difficulty with faint speech and needed amplification. (Id. at 496). Plaintiff occasionally needed repeat questions when reading lips without hearing aids, and he could keep 30 percent of the conversation without reading lips and without hearing aids. (Id. at 497). Plaintiff had a moderate decreased ability to the hear finger rubs or forced whispers without hearing aids. (Id.). Dr. Liu diagnosed Plaintiff as bilateral hearing impaired and concluded that Plaintiff “has moderate limitation for any activity with auditory accuracy because of bilateral hearing impairment.” (Id. at 496). The ALJ found Dr. Liu's opinion to be “persuasive with regard to moderate limitation for any activity with auditory accuracy because of bilateral hearing impairment,” as it was “consistent with the overall medical record and supported by complete examination.” (Id. at 67).

Based on this evidence, the ALJ assessed the following RFC limitations as they pertained to Plaintiff's bilateral hearing impairment: he can work in a “moderate noise level environment as defined in Appendix D of the Selected Characteristics of Occupations; is limited to occupations where oral communication is face to face; is limited to jobs where all oral communication is short, simple and clear; limited to occupations where telephones and other audio-visual equipment are not required to perform the work or must have the ability to use volume controls or speaker capability.” (Id. at 63-64).

While the RFC plainly incorporates limitations relevant to a hearing impairment, what is less clear to the Court is whether the specific RFC assessed here would account for the somewhat vague limitations assessed by Dr. Liu, i.e., that Plaintiff has a “moderate limitation for any activity with auditory accuracy.” In other words, the ALJ has not tied any of the evidence in the record relating to Plaintiff's bilateral hearing impairment—opinion evidence or otherwise—to the specific restrictions assessed in the RFC. Without further explanation from the ALJ as to how the assessed RFC accounts for Plaintiff's bilateral hearing impairment, the Court cannot meaningfully review whether the RFC is supported by substantial evidence. See, e.g., Cecelia J. v. Comm'r of Soc. Sec., No. 19-CV-1483-HBS, 2021 WL 431673, at *3 (W.D.N.Y. Feb. 8, 2021) (“The Court cannot conduct a meaningful review of the ALJ's decision without some indication of what inferences the ALJ drew from the record evidence and how those inferences led him to his RFC finding.”); Beers v. Comm'r of Soc. Sec., 449 F. Supp. 3d 96, 100 (W.D.N.Y. 2020) (“[I]t is the ALJ's responsibility ․ to build an accurate and logical bridge from the evidence to [his or her] conclusion to enable a meaningful review” (citation omitted)). Accordingly, remand is required on this basis.

B. The HALLEX Manual

Plaintiff further contends that the ALJ erred because she failed to abide by the HALLEX Manual, I-2-6-34, which governs “Examination of Proposed Exhibits on Date of Hearing,” and provides: “If a claimant or representative has not examined the administrative record, including any proposed exhibits, the administrative law judge (ALJ) or hearing office (HO) staff must give them the opportunity to examine the material before the hearing.” HALLEX I-2-6-34, 1993 WL 643027 (May 1, 2017).

The hearing transcript reflects that Plaintiff elected to proceed pro se at his administrative hearing. (Dkt. 4 at 92). At the beginning of the hearing, the ALJ asked Plaintiff if he had the opportunity to review his record. (Id. at 94). Plaintiff initially asked, “which records,” after which he indicated that he had his medical records, but when the ALJ asked if Plaintiff had reviewed his file via an email link, Plaintiff responded, “oh no, no. I don't.” (Id.). The ALJ then stated:

Okay. Let's see. All right, so I will need to have you look at your file. Before I make any kind of a decision in your case, and so we will get those records to you. The way we've been doing it is a link through your email. So, I'm going to have somebody reach out to you, so that you can review all your records, okay?

(Id.). After acknowledging that Plaintiff had not reviewed his file, the ALJ explained to Plaintiff that she would “make sure that he gets a copy of his records in an email link,” and then proceeded with the hearing. (Id. at 97).

In response to Plaintiff's argument, the Commissioner contends that the ALJ did not err because all that is required by HALLEX I-2-6-34 is that Plaintiff have the opportunity to review his records, citing to a letter in the record dated March 4, 2020, enclosing a CD containing the evidence in his electronic folder. (See Dkt. 10-1 at 10-11; see also Dkt. 4 at 292). The Commissioner further contends that the ALJ sent Plaintiff additional letters enclosing CDs with further exhibits after the hearing in September and October 2020, which informed Plaintiff that he was entitled to a supplemental hearing. (Dkt. 10-1 at 11).

“The HALLEX is a manual that provides the Social Security Administration with a set of guidelines and procedures and district courts within the Second Circuit have found that HALLEX policies are not regulations and therefore not deserving of controlling weight.” Louisiana S. v. Comm'r of Soc. Sec., No. 3:20-cv-00130 (BKS/CFH), 2021 WL 911691, at *5 (N.D.N.Y. Mar. 10, 2021) (quotations and citations omitted). Accordingly, “a failure to follow HALLEX does not necessarily constitute legal error.” Gallo v. Colvin, No. 15-CV-9302 (AT) (BCM), 2016 WL 7744444, at *12 (S.D.N.Y. Dec. 23, 2016).

Although failure to follow the HALLEX procedures does not constitute per se legal error, given the circumstances of this case, the Court concludes that remand is necessary. As noted above, Plaintiff was not represented by counsel at his administrative hearing. The hearing transcript reflects that certain medical records were not included in the record at the time of the hearing, including records relating to Plaintiff's hearing impairment (see, e.g., Dkt. 4 at 99-101), which underscores the Court's conclusion regarding the sufficiency of the RFC as it relates to Plaintiff's bilateral hearing impairment. Accordingly, to the extent the record is at all unclear as to whether Plaintiff had the opportunity to review the record prior to his administrative hearing and assert any objections, and given Plaintiff's pro status, the Court finds that the ALJ should have afforded Plaintiff the opportunity to review his record prior to proceeding with the administrative hearing.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 8) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 10) is denied.

SO ORDERED.

FOOTNOTES

1.   When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.

2.   Plaintiff's mother explained that Plaintiff's hearing aids were broken at the time of the administrative hearing, and they were attempting to get his insurance back so that the hearing aids could be fixed. (See Dkt. 4 at 90-91).

ELIZABETH A. WOLFORD, Chief Judge