Brittany N. Sczepanski, Plaintiff-Appellant,
v.
Andrew Saul, Commissioner of Social Security, Defendant-Appellee.[1]
Argued: November 25, 2019
Plaintiff-appellant
Brittany N. Sczepanski appeals from a judgment of the United
States District Court for the Western District of New York
(Schroeder, M.J.), affirming the Commissioner of Social
Security's denial of her application for Supplemental
Security Income. On appeal, Sczepanski argues that the
administrative law judge who reviewed her claim, and whose
decision the Commissioner adopted, erred in assuming that
Sczepanski's ability to complete a probationary period
was irrelevant to her ability to perform significant numbers
of jobs in the national economy. We agree, and we
VACATE the district court's judgment
with instructions to REMAND the matter to
the Commissioner for further development of the evidence.
Timothy Hiller, Law Offices of Kenneth Hiller, PLLC, Amherst,
NY, for Plaintiff-Appellant.
Peter
W. Jewett, Special Assistant U.S. Attorney (Ellen E. Sovern,
Acting Regional Chief Counsel-Region II, Office of the
General Counsel, Social Security Administration, on the
brief), for James P. Kennedy, Jr., United States Attorney,
Western District of New York, Buffalo, NY, for
Defendant-Appellee.
Before: Katzmann, Chief Judge, Calabresi and Lohier, Circuit
Judges.
KATZMANN, CHIEF JUDGE:
This
case calls upon us to determine whether, in the context of
consideration of an application for Supplemental Security
Income ("SSI") under Title XVI of the Social
Security Act, 42 U.S.C. § 1381 et seq., the
ability to complete a probationary period is relevant to a
claimant's disability status.
Plaintiff-appellant
Brittany N. Sczepanski challenges the Social Security
Commissioner's denial of her application for SSI. An
administrative law judge ("ALJ") determined that
Sczepanski was not disabled after finding that she could
perform significant numbers of jobs in the national economy,
and a federal district court affirmed that decision. On
appeal, Sczepanski argues that the ALJ erred because it
assumed that Sczepanski's inability to complete a
probationary period at the identified jobs was irrelevant to
the ALJ's disability determination. We agree, and we
therefore VACATE the district court's
judgment affirming the Commissioner's denial of
Sczepanski's application. However, because the
Commissioner should be given the opportunity to show that
Sczepanski can perform significant numbers of jobs in the
national economy, we instruct the district court to
REMAND the matter to the Commissioner for
further development of the evidence.
Background
On
February 27, 2013, Sczepanski filed an application for SSI
under Title XVI of the Social Security Act, 42 U.S.C. §
1381 et seq.[2] In her application, Sczepanski stated that
she had been disabled since March 1, 2009. After
Sczepanski's claim was initially denied, she requested a
hearing before an ALJ. The hearing was held on March 13,
2015, and Sczepanski was represented by a
non-attorney.[3] Sczepanski testified that she suffered
from social anxiety and depression, and that her symptoms
were exacerbated by social interaction and stress. In
addition, Sczepanski testified that she suffered from
selective mutism and auditory processing problems, and that
she was unable to concentrate in environments with background
noise.
A
vocational expert also testified at the hearing. The ALJ
asked the expert whether there would be any jobs available to
a hypothetical person of Sczepanski's age, education, and
work experience who had no exertional limitations and who
"should have essentially no contact with the general
public and no more than occasional contact with supervisors
or co-workers, no fast paced or assembly line or high quota
work and no significant noise at the work place."
Certified Administrative Record 53 ("CAR"). The
expert responded that the hypothetical individual would be
able to work as a laundry laborer, of which there were 419,
840 jobs in the national economy, an industrial cleaner, of
which there were 2, 097, 380 jobs in the national economy,
and a shirt folder, of which there were 426, 670 jobs in the
national economy.
Sczepanski's
representative also questioned the vocational expert. The
representative asked how much absenteeism was typically
tolerated at a sedentary, unskilled, entry-level job, and the
expert responded, "[n]o more than two days per month
every single month." Id. at 59.
Sczepanski's representative also asked how much
absenteeism or tardiness was typically tolerated during a
probationary period, and the expert responded, "[d]uring
the probationary period of 90 to 120 days there is typically
no tolerance for absence." Id. at 58. Regarding
this latter point, the ALJ interjected to say, "we
don't really look at probationary issues. We just, the
job, doing the job." Id. The ALJ then
reiterated that "probationary time doesn't really
make any difference in the determination of disability under
our regulations." Id. And when Sczepanski's
representative responded that "it does go to ability to
sustain employment if [Sczepanski] can't make it through
a probationary period," the ALJ responded:
I actually don't see that. The question is whether or not
they can do a job. If they can't do it they can't do
it. If they can do it but can't do it for a continuous
period of time, say, 90 days or 180 days then they can't
do it but if they can do the job then probationary period, I
don't see makes any difference.
Id. at 59 (quotation reproduced verbatim from
hearing transcript).
On May
26, 2015, the ALJ issued a decision denying Sczepanski's
application. The ALJ's decision followed the Social
Security Administration's five- step sequential
evaluation process for determining whether an adult is
disabled. See 20 C.F.R. § 416.920(a). As
relevant here, the ALJ found that Sczepanski suffered from
severe impairments of anxiety, depression, and selective
mutism. The ALJ also found that Sczepanski:
ha[d] the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: [Sczepanski] can have no contact
with the general public; no more than occasional contact with
coworkers or supervisors; no fast-paced or assembly line or
other high quota work; no more than mild exposure to ...