Krykewycz v. Berryhill

Filing 16

MEMORANDUM. Signed by Judge Richard G. Andrews on 9/28/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DENISE KR YKEWYCZ,
Plaintiff,
Civil Action No. 17-821-RGA

V.

NANCY A. BERRYHILL, Acting
Commissioner Of Social Security,
Defendant.

MEMORANDUM
This social security appeal comes before the Court on the Magistrate Judge's Report and
Recommendation. (D.I. 13). The Magistrate Judge recommended that the Court rule in favor of
Defendant. Plaintiff filed Objections. (D.I. 14). I review the objections de novo.
The first objection is that the ALJ did not incorporate into his Residual Functional
Capacity (RFC) determination any mental limitations from the ALJ's findings that she had the
severe mental impairments of anxiety, posttraumatic stress disorder, and personality disorder.
These impairments led the ALJ to find, "With regard to concentration, persistence or pace, the
claimant has moderate difficulties. (Tr. 22).
Plaintiff raised this issue before the Magistrate Judge. (D.I. 13 at 27). Plaintiff there
argued, as she does now, that it was legal error to include no mental limitations, and that limiting
Plaintiffs RFC to "unskilled work" is not a mental limitation. In support of this argument,
Plaintiff cites Ramirez v. Barnhart, 372 F.3d 546, 555 (3d Cir. 2004).
Ramirez is Plaintiffs best case. There, the Third Circuit held that the hypothetical
question asked of the vocational expert "did not accurately convey all of [claimant' s]

impairments, and the limitations they cause," which meant that the ALJ's decision was not
supported by substantial evidence. Id. at 552. The hypothetical question included the limitation
that claimant could perform "no more than simple one or two-step tasks." Id. at 554. The ALJ
had found that the claimant "often suffered from deficiencies in concentration, persistence, or
pace." Id. The Court explained that "deficiencies in pace" would impact whether an individual
who could perform simple tasks could perform them "over an extended period ohime." Id. The
Court also noted, " [T]here may be a valid explanation for [not including deficiencies in pace]
from the ALJ's hypothetical." Id. at 555. It might not "limit her ability to perform tasks under a
production quota." Id. I take it from this discussion that the reason for the reversal in Ramirez
was premised on an inadequate explanation for the omission of a mental limitation in a
hypothetical question. Thus, I think it would be incorrect to read Ramirez as requiring either that
a finding of a moderate deficiency in concentration, persistence or pace had to appear in the
hypothetical question once such a finding is made in the "Steps 2 and 3" analysis, or that a
limitation to "unskilled work" cannot account for the mental impairments a clai'mant has.
The ALJ's hypothetical questions to the vocational expert included the limitations that
Plaintiff was limited to "medium exertional level" work that is "unskilled, must be reasoning
level one or two, there' s no more than occasional interaction with co-workers and supervisors
and there's no interaction with the general public." (Tr. at 75). Plaintiffs attorney questioned
the vocational expert with hypothetical questions that included limitations for difficulty
following a schedule and being easily distracted. (Tr. at 81-82). If Plaintiffs attorney' s
hypothetical question were accurate, the vocational expert' s answers would lead to the
conclusion that Plaintiff was disabled.

2

In the briefing before the Magistrate Judge, the parties cited and argued about the impact
of various non-precedential Third Circuit opinions. 1 The Commissioner also cited a precedential
Eleventh Circuit case, Winschel v. Commissioner, 631 F.3d 1176 (11 th Cir. 2011), which seems
to me to be consistent with the non-precedential Third Circuit cases. The Eleventh Circuit held:
Other circuits have also rejected the argument that an ALJ generally accounts for
a claimant's limitations in concentration, persistence, and pace by restricting the
hypothetical question to simple, routine tasks or unskilled work. [Citing three decisions,
including Ramirez]. But when medical evidence demonstrates that a claimant can engage
in simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace, courts have concluded that limiting the hypothetical to include
only unskilled work sufficiently accounts for such limitations.
Id. at 1180.

Plaintiff has the burden of proof to show what her RFC is. See Goffv. Barnhart, 421
F.3d 785, 790 (8 th Cir. 2005). The ALJ examined the record and explained which medical
evidence about mental impairments he was crediting and which he was not. (D.I. 4-2, Tr. at 2526). In particular, he credited evidence that "the claimant is not precluded from understanding,
remembering, and carrying out simple instructions, maintaining attention for two-hour periods,
sustaining an ordinary routine, and interacting with detailed tasks, but that she is limited in
working with detailed tasks. " (Id. at 26). The ALJ also took into account that, "after her
hearing," "(d]ue to the lack of evidence addressing the claimant' s mental impairments, she was
scheduled for consultative examinations with a psychiatrist and a psychologist," but she "did not
appear for [them] in April or June 2015 ." (Id.).

The most pertinent are: Holley v. Commissioner, 590 F. App 'x 167 (3d Cir. 2014);
Menkes v. Astrue, 262 F. App 'x 410 (3d Cir. 2008); McDonaldv. Astrue, 293 F. App 'x 941 (3d
Cir. 2008).
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Thus, the ALJ explained why he was not imposing any express mental limitations. It
follows that the RFC description limiting her to "unskilled work" provided substantial evidence
for the ALJ's conclusion that there was work that Plaintiff could perform (whether that
conclusion was based on the vocational expert' s testimony or the Medical-Vocational Grids).
Plaintiffs second objection is essentially a variation on the first objection. The ALJ used
the Medical-Vocational Grids to determine that Plaintiff was not disabled. (Id. at 29). Such
reliance on the grids is permissible under some circumstances. When the claimant's properlydetermined RFC consists of exertional limitations only, the Grids can be used to determine how
many jobs exist in the national economy for individuals with the same exertional limitations.
Plaintiffs argument is that she had non-exertional limitations, and it was therefore error
to mechanically apply the Grids. See Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000). Plaintiffs
premise, however, is that there should have been non-exertional limitations, which is also the
premise of his first objection. Since I do not accept it in connection with the first objection, I
also do not accept it in connection with this objection. 2

Entered this ~

day of September 2018.

It appears as though the ALJ could have relied upon the testimony of the vocational
expert, but chose not to do so. It does not seem to me to be relevant, as I interpret the vocational
expert' s testimony as being consistent with the Grids. Thus, if Plaintiffs premise (that there
should have been non-exertional limitations in the RFC) is correct, then the vocational expert' s
testimony would not be substantial evidence as it would be based on an inaccurate hypothetical
question.
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