Krchak v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the action be REVERSED and REMANDED to the Social Security Administration for further administrative proceedings consistent with this opinion, to include, at a minimum, a supplemental hearing for the gathering of evidence regarding Plaintiff's ability to work. Signed by Magistrate Judge Bert W. Milling, Jr on 4/25/2011. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENDA JO KRCHAK,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

CIVIL ACTION 10-0482-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 12).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 20).
argument was heard on April 25, 2011.

Oral

Upon consideration of the

administrative record, the memoranda of the parties, and oral
argument, it is ORDERED that the decision of the Commissioner be
REVERSED and that this action be REMANDED for further
administrative proceedings not inconsistent with the Orders of
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the Court.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-nine years old, had completed a high school education (Tr.
34),1 and had previous work experience as a convenience store
cashier, security guard, room attendant, and short order cook
(Tr. 52-53).

In claiming benefits, Plaintiff alleges disability

due to major depression, alcohol dependence by history,
personality disorder, Hashimoto’s thyroiditis, and degenerative
disc disease (Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability benefits

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Error! Main Document Only.Plaintiff testified that she had

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and SSI on April 10, 2008 (Tr. 109-16).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although Krchak could not return to her past
relevant work, there were specific sedentary jobs in the
national economy which she could perform (Tr. 15-26).

Plaintiff

requested review of the hearing decision (Tr. 5-8) by the
Appeals Council, but it was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Krchak alleges

the single claim that the ALJ failed to pose a complete
hypothetical question to the Vocational Expert (hereinafter VE)
at the evidentiary hearing (Doc. 12).

Defendant has responded

to—and denies—this claim (Doc. 16).
Plaintiff claims that the ALJ failed to pose a complete
hypothetical question to the VE at the evidentiary hearing.

The

Eleventh Circuit Court of Appeals has held that an ALJ's failure
to include severe impairments suffered by a claimant in a
hypothetical question to a VE to be reversible error where the
ALJ relied on that expert's testimony in reaching a disability
decision.

Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985).

In his decision, the ALJ found that Krchak had the residual

received a Graduate Equivalency Degree (Tr. 40).

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functional capacity to perform sedentary work “except that [she]
is limited to simple unskilled work requiring no more than
simple one step instructions, but will allow for a sit or stand
opinion” [sic] (Tr. 22).

During the ALJ’s questioning of the VE

at the evidentiary hearing, the following exchange occurred:

Q
If we have a hypothetical
individual who has the same age, education
and work experience as the claimant, and
this individual is able to perform light
exertion as it’s defined in the Dictionary
of Occupational Titles, and the individual
also has some non-exertional limitations,
can understand, remember and carry out
short, simple instructions, attend for
periods of at least two hours, but changes
in the work routine should be minimal, and
the individual would also need assistance
with goal setting and goal planning.
Would
that individual be able to perform any of
these jobs that the claimant has performed?
A
Yes. Yes, your Honor. The past
work as a cashier and room attendant would
fit those limitations.
Q
All right. Let me have a second
hypothetical. Again the hypothetical
individual has the same age, education and
work experience as the claimant, and I’m
going to build on the limitations in number
one. It would be the same as number one,
but additionally this individual would be
able to grip and perform fine manipulation
no more than occasionally, and would need a
sit/stand option, but would be able to
alternate positions and perform for a full
eight-hour day. Would there be any of the
claimant’s past work that that individual
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could perform?
A

No, Your Honor.

Q
Would there be other jobs that this
individual could perform?
A

Yes, sir.

Q
Would you give me a representative
example, please?
A
Yes, sir. Some examples would be
surveillance system monitor, which is
classified as DOT code 379.367-010. It
would be classified as sedentary, unskilled,
SVP of two. There’s 102,000 in the nation,
1,950 in the state of Alabama. There’d be a
call-out operator, which is DOT code
237.367-014, which is also classified as
sedentary and unskilled, and there are
85,000 in the nation, 17,000 – I’m sorry,
1,750 in the state of Alabama.
Q
All right. If we have a third
hypothetical individual, and this individual
has the same age, education, and work
experience as the claimant, and this
individual, I’m going to build on
hypothetical number two, has all of those
limitations but additionally this individual
has pain that would be characterized as
moderately severe to severe on occasions
such that the pain, when it occurs, would
cause the individual to lose concentration,
essentially need a break from performing
work activities, would there be any jobs for
that individual?
A

No, Your Honor.

Q

And what would be the reason for

that?
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A
It would be due to a lack of
ability to complete tasks in a timely
fashion, and be productive in the workforce.

(Tr. 54-56) (emphasis added).
The Court finds that Plaintiff is correct in arguing that
there are differences in the hypothetical questions posed to the
VE and in his ultimate finding.

The first one is that the ALJ

queried about an individual capable of performing light work,
while finding that Krchak can perform only sedentary work; this
difference is of no moment, though, as the VE’s responses were
for jobs requiring sedentary work, which is what the ALJ
ultimately found.
The second difference is that the ALJ’s questions involved
a person who could “remember and carry out short, simple
instructions” (Tr. 54) while his finding was that Plaintiff was
“limited to simple unskilled work requiring no more than simple
one step instructions” (Tr. 22).

Plaintiff asserts that this

inconsistency is not mere harmless error, arguing that the
Dictionary of Occupational Titles (hereinafter DOT) breaks down
the reasoning ability requirements of the two jobs and that they
demand more of her than she is capable (Doc. 12, pp. 5-8).
Defendant, however, argues that the inconsistency between the
ALJ’s finding and his question to the VE is a distinction
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without a difference, asserting that Krchak’s arguments are
misguided (Doc. 16, pp. 5-8).
Both Plaintiff and Defendant rely on the DOT in making
their arguments.

The Court, however, will not decide between

the two, finding instead that the ALJ’s hypothetical questions
and the determination rendered are inconsistent with one
another.

Any conclusion the Court reached concerning the

specific of the Parties’ arguments would be speculation as to
what the ALJ meant.

That is not the business of the Court.

Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that the action be REVERSED and

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s ability to work.

Final

judgment will be entered by separate Order.
DONE this 25th day of April, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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