Sczepanski v. Saul

          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 ...