Wojciechowski v. Berryhill

Filing 31

FINAL JUDGMENT entered. It is hereby ORDERED this case is REVERSED and REMANDED for further proceedings. Signed by Magistrate Judge William E. Cassady on 6/19/2018. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LESLIE F. WOJCIECHOWSKI,
Plaintiff,

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vs.

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NANCY A. BERRYHILL,

:

Defendant.

Civil Action No. 1:17-cv-00240-C

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FINAL JUDGMENT

Social Security Claimant/Plaintiff Leslie F. Wojciechowski brought this action
under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of
the Defendant Commissioner of Social Security (the “Commissioner”) denying her
applications for supplemental security income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. § 1381, et seq. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Doc. 18 (“In accordance with the provisions of 28 U.S.C.
§ 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have a United
States Magistrate Judge conduct any and all proceedings in this case, including the
trial, order the entry of a final judgment, and conduct all post-judgment
proceedings.”)).
Upon consideration of the briefs of the parties, (Docs. 13 & 20), the
administrative record, (Doc. 10), the arguments that were presented during the
hearing that was held on June 14, 2018, (see Doc. 26), and for those reasons

announced by the Court on the record during the hearing, the decision of the
Commissioner of Social Security should be reversed, and the case should be
remanded for further proceedings.
Vocational expert James N. Cowart (“VE Cowart”), who appeared at the
hearing before the ALJ, on April 18, 2016, was posed with a hypothetical by the ALJ
that assumed an individual of Plaintiff’s age, education, and past job history; who is
limited to the medium level of exertion; who is not able to climb ladders, ropes, or
scaffolds; who can frequently climb ramps or stairs, stoop kneel, crouch, and crawl;
who is able to be occasionally exposed to pulmonary irritants including dust, fumes,
odors, and gases; and who cannot be exposed to unprotected heights or hazardous
machinery.

VE Cowart opined the hypothetical individual could not perform

Plaintiff’s past job as a registered nurse because of the restrictions in regard to
pulmonary irritants, but the individual could perform unskilled work as a
checker-in, linen room attendant, and laundry worker. VE Cowart opined, within
the limitations of the hypothetical, there would not be transferable skills, but if the
pulmonary irritants restrictions were removed from the hypothetical, there would be
transferable skills.
At the second hearing that was held on August 17, 2016, the ALJ elicited
testimony from another vocational expert, Eric Anderson (“VE Anderson”). When
VE Anderson was posed with the ALJ’s hypothetical that was posed to VE Cowart
with the modification that the hypothetical individual could occasionally be able to
climb ramps or stairs, stoop, kneel, crouch, crawl, and reach overhead with the left
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upper extremity, VE Anderson opined the hypothetical individual could perform
Plaintiff’s past job as a registered nurse and there were transferable skills at the
medium and light exertional levels. At the light exertional level, VE Anderson
opined the hypothetical individual would be able to perform the jobs of school nurse,
office nurse, and industrial nurse.
At the fourth step of the five-step, sequential evaluation process, the ALJ
found Plaintiff is unable to perform her past relevant work as a registered nurse and
stated the vocational expert testified Plaintiff could not perform her past relevant
work with her residual functional capacity.

Given the contradictions between the

testimony of VE Cowart and VE Anderson, and how the ALJ’s decision is unclear
upon which of the vocational experts’ testimony she relied when she determined
whether Plaintiff could perform her past work and if Plaintiff had transferable
skills, the ALJ’s decision is not supported by substantial evidence.
Therefore, it is hereby ORDERED this case is REVERSED and
REMANDED for further proceedings.1

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DONE and ORDERED this the 19th day of June 2018.
Any appeal taken from the judgment herein shall be made to the Eleventh Circuit Court of
Appeals. (See Doc. 24 (“An appeal from a judgment entered by a Magistrate Judge shall be
taken directly to the United States Court of Appeals for this judicial circuit in the same
manner as an appeal from any other judgment of this district court.”)).
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Because the Court determines the decision of the Commissioner should be reversed and
remanded for further proceedings based on Plaintiff’s first claim of error in regard to the
ALJ’s failure to resolve discrepancies in testimony of the vocational experts, there is no need
for the Court to consider Plaintiff’s other claims of error. See Robinson v. Massanari, 176 F.
Supp. 2d 1278, 1280 n.2 (S.D. Ala. 2001); cf. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th
Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone warrants reversal,’ we do
not consider the appellant’s other claims.”).
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s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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