Tavales v. Colvin

JOSE TAVALES, Plaintiff v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

CIVIL ACTION No. 16-2000

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 27, 2017

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE

Jose Tavales ("Plaintiff"), seeks judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), denying his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. Plaintiff has filed a brief in support of his request for review, the Commissioner has responded to it, and Plaintiff has filed a reply. For the reasons set forth below, it is recommended that Plaintiff's Request for Review be granted and this case remanded for further proceedings consistent with this court's recommendation.

I. PROCEDURAL HISTORY¹

On March 8, 2010, Plaintiff filed applications for DIB and SSI alleging disability, since November 20, 2009 on his DIB claim, and May 27, 2009 on his SSI claim, based upon physical and mental health impairments. R. 43. His claims were denied initially, so Plaintiff requested a hearing. Id. On May 11, 2011, a hearing was held before Deborah Mande, Administrative Law Judge, sitting in Philadelphia. Id. Plaintiff, represented by Rita Bonner, Esquire and assisted by aSpanish interpreter, and Nancy Harter, a vocational expert ("the VE"), testified at that hearing. R. 137-54. On May 20, 2011, the ALJ, using the sequential evaluation process for disability,² issued an unfavorable decision. R. 43-53. The Appeals Council denied Plaintiff's request for review, and Plaintiff commenced a civil action in this court on January 29, 2013. R. 594.

In the interim, on July 8, 2011, Plaintiff filed subsequent applications for DIB and SSI. R. 594. Following a hearing on April 10, 2013, on May 30, 2013, Jennifer M. Lash, Administrative Law Judge, issued a favorable decision, finding Plaintiff disabled. R. 594; R. 688-93. Specifically, ALJ Lash determined that a finding of disabled was appropriate under Medical-Vocational Rule 201.17, in that (1) Plaintiff retained the residual functional capacity to perform a range of sedentary work, (2) no jobs existed in the national economy that Plaintiff could perform, (3) Plaintiff was illiterate and unable to communicate in English, and (4) Plaintiff's past work was unskilled. R. 594; R. 691-93.

On July 3, 2013, the District Court remanded the case arising from the initial denial of benefits for further proceedings in light of the contradictory findings as to disability in ALJ Lash's decision. R. 594, 655. On November 26, 2013, the Appeals Council remanded ALJ Lash's decision, noting the following: (1) her finding as to Plaintiff's illiteracy and inability to communicate in English was inconsistent with ALJ Mande's previous findings; (2) her decision did not reference record evidence in support of her finding that Plaintiff was illiterate; and (3) her reliance on the Medical Vocational Rule indicating that Plaintiff's past work was unskilled was inconsistent with ALJ Mande's decision because the VE in that case testified that Plaintiff's past work as a butcher was skilled. Thus, the Appeals Council determined that ALJ Lash's decision finding Plaintiff disabled was not supported by substantial evidence. R. 595. The cases were consolidated for a new hearing addressing the entire period of alleged disability at issue. R. 653.

On March 20, 2014, a second hearing was held before ALJ Lash. R. 611-646. Plaintiff, represented by Nicholas Feden, Esquire, and Christine A. Carrozza, a VE, testified at the hearing. A Spanish interpreter, Michelle Galasso, was also present. R. 611-46. On May 29, 2014, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 594-605. On March 3, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's findings the final determinations of the Commissioner. R. 574-78. This case was referred to the undersigned by the Honorable Eduardo C. Robreno, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a Report and Recommendation.

II. FACTUAL BACKGROUND

A. Personal History

Plaintiff, born on October 5, 1964, was forty-five (45) years old on the alleged disability onset date and forty-nine (49) years old at the time of the last administrative hearing. R. 603. He has past relevant work as a butcher, short order cook, cabinet maker, and cow milker. R. 603.

B. Plaintiff's Testimony³

At the time of the hearing, Plaintiff was 5 feet 6 inches tall and weighed 356 pounds. R. 616. He was living with his girlfriend, who received disability for physical and mental impairments. Id. Plaintiff does not have a driver's license and relies on public transportation. R. 617. He obtained a GED in Puerto Rico⁴, but testified that he speaks and reads little English. Id. He is able to write his name but cannot complete paperwork in English. R. 618. Social Security provided Plaintiff's only means of support, his welfare having been terminated in December 2013. Id.

Plaintiff last worked in November 2009,⁵ as a butcher at North Broad Foods, where he cut and repackaged meat and served customers who spoke Spanish. R. 621-22. He had worked as a butcher for a short period in 2007. R. 623. Other past employment includes supermarket handyman (2008); grill chef at Ruby Tuesday's (2007); cabinet maker (2006), a job that required lifting up to 25 pounds and standing and walking all day, and measuring and cutting wood with a wood cutter; cow ordainer (milker) in Puerto Rico (2002), a job that required Plaintiff to bringcows in from the field, hook up milking machines, and clean milk containers. This job required lifting items up to 40 pounds and standing and walking all day. R. 622-28.⁶

Plaintiff's counsel elicited testimony from him, primarily about his language skills.⁷ On a scale of 1 (poor) to 10 (excellent), Plaintiff rates his ability to understand spoken English at between 2 and 3. He has some understanding when he visits doctors and hospitals, but his girlfriend generally accompanies him to interpret. R. 629. Similarly, when working, Plaintiff had some understanding of what was spoken to him, but relied on Spanish-speaking co-workers to explain what he did not understand. R. 630. Plaintiff rates his ability to speak English at 3 to 4. Id. He confirmed that he believes he speaks English better than he understands it. R. 631. Plaintiff rates his ability to write in English at a 1. R. 632. When he worked, if he needed to write down any information, he wrote it in Spanish and asked a co-worker to translate his writings to English. Id. He rated his ability to read in English at 0. Id. At work, Spanish-speaking co-workers would translate written English to Spanish when necessary, though this was not a frequent occurrence. Id.

Plaintiff confirmed that, at hospitals and doctors' offices, his girlfriend interpreted for him; when she was unavailable, he requested an interpreter. R. 631-32.

C. Vocational Testimony

The VE described Plaintiff's past work as a butcher as heavy⁸ work, performed as medium⁹ and skilled¹⁰, SVP:¹¹ 6. R. 634. The VE noted, however, that the work would reach SVP: 6 only after a year of experience. She opined also that if Plaintiff had performed such work for 10 months, in all likelihood, he had reached SVP: 6, but that 6 or 9 months would not be enough. Id. Plaintiff's work at Ruby Tuesday's as a short order cook was light¹², semi-skilled¹³ work, SVP: 3. R. 634-35. The VE described Plaintiff's work as a cabinet maker as medium, skilled work, SVP: 6. R. 635. Plaintiff's work as a cow ordainer or milking machine operator was medium, unskilled¹⁴ work, SVP: 2. Id.

The ALJ asked the VE to consider the following individual of the same age, education, and work background as Plaintiff:

At least able to communicate in English. . . . can lift and carry 10 pounds, stand and walk two hours, and sit six hours in an eight hour work day with occasional balancing, stooping, crouching, and climbing of ramps and stairs, no crawling, kneeling, or climbing of ladders, ropes, or scaffolds. Must avoid frequent exposure to fumes, odors, dust, gases, and poor ventilation. Must avoid all exposure to hazards, including moving machinery, and unprotectedheights and can perform routine repetitive tasks with no public interaction.

R. 636. The ALJ inquired whether any unskilled occupations would be available for that individual. The VE responded that the positions would be sedentary and identified stuffer (of, for example, toy products, quilting products, supporting products) (417 jobs available locally, 37,000 nationally); table worker (described as a sedentary inspector of small parts) (516 jobs available locally, 46,000 nationally); and sorter of agricultural products (516 jobs available locally, 46,000 nationally). R. 636-37. The VE confirmed that she had identified a representative sampling of jobs available with a reasoning level of 2 or less, and that her testimony was consistent with the DOT. R. 637.

The ALJ then asked the VE to consider the same hypothetical individual, with the same residual functional capacity, but further limited in that "the individual requires the use of a cane as needed throughout the work day and can have no more than occasional interaction with supervisors and coworkers." Id. The VE opined that unskilled positons, including those previously identified, would be available, and explained that because they were performed seated, the use of a cane would be allowable; these jobs typically did not require more than occasional contact with coworkers and supervisors. R. 637-38. The VE clarified that the DOT does not address the use of a cane, such that her opinion was based on professional experience. R. 638.

The ALJ also...