Struna v. Commissioner of Social Security
Filing
22
FINAL ORDER AND OPINION re 1 Complaint. The Commissioner's decision is affirmed pursuant to sentence four as set forth herein. The Clerk is directed to enter judgment consistent with this ruling and close the file. Signed by Magistrate Judge Thomas E. Morris on 7/16/2012. (DLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JON STRUNA,
Plaintiff,
vs.
CASE NO. 8:11-cv-1515-T-TEM
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
____________________________________
ORDER AND OPINION
This case is before the Court on Plaintiff’s complaint (Doc. #1). Plaintiff seeks review
of the final decision of the Commissioner of Social Security that denied Plaintiff’s claims for
disability insurance benefits (DIB) and supplemental social security income (SSI) disability
payments. This Court has authority to conduct the requested review. 42 U.S.C. § 405(g).
Plaintiff filed a legal brief in opposition to the Commissioner’s decision (Doc. #19,
Plaintiff’s Brief). Defendant filed his brief in support of the decision to deny disability
benefits (Doc. #21, Defendant’s Brief). The Commissioner has filed the transcript of the
underlying administrative proceedings and evidentiary record (hereinafter referred to as
“Tr.” followed by the appropriate page number). Both parties consented to the exercise of
jurisdiction by a magistrate judge, and the case has been referred to a magistrate by the
Order of Reference dated September 19, 2011 (Doc. #14). The case was reassigned to
the undersigned on February 24, 2012 (Doc. #20).
Upon review of the record in its entirety, the Court found the issues raised by Plaintiff
were fully briefed and concluded oral argument would not benefit the Court in making its
determinations. Accordingly, the matter has been decided on the written record. For the
reasons set out herein, the Commissioner’s decision is AFFIRMED.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI with the Social Security Administration on
April 22, 2008 (Tr. 138-44). Plaintiff alleged a disability onset date of January 31, 2008 (Tr.
138, 141). In an undated Disability Report-Adult, Plaintiff alleged he was unable to work
due to a heart attack, degenerative disc disease, anxiety, and high blood pressure (Tr.
158).
The DIB and SSI applications were denied initially and upon reconsideration. An
administrative hearing was held on August 16, 2010 in Tampa, Florida before
Administrative Law Judge (ALJ) Michael S. Maram (Tr. 25-50). Plaintiff appeared and
testified at the hearing, as did vocational expert (VE) William Harvey (Tr. 28, 46-49).
Plaintiff was represented at the administrative hearing by a non-attorney representative,
Ms. Raquel Asuncion (Tr. 25, 121-22).
ALJ Maram issued the decision denying Plaintiff’s claims on September 23, 2010
(Tr. 9-19). Plaintiff requested review of the hearing decision by the Appeals Council, but
the request was denied (Tr. 1-3). Thus, the ALJ’s decision became the final decision of the
Commissioner. Thereafter, Plaintiff’s legal counsel, Mr. Michael E. Steinberg, Esq., filed
the instant complaint in federal court on July 8, 2011.
SOCIAL SECURITY ACT ELIGIBILITY, THE ALJ DECISION,
AND THE STANDARD OF REVIEW
A plaintiff is entitled to disability benefits under the Social Security Act only when he
or she is unable to engage in substantial gainful activity by reason of any medically
2
determinable physical or mental impairment which can be expected to either result in death
or last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c (a)(3)(A),
20 C.F.R. § 404.1505.1 For purposes of determining whether a claimant is disabled, the
law and regulations governing a claim for disability benefits are identical to those governing
a claim for supplemental security income benefits. Patterson v. Bowen, 799 F.2d 1455,
1456, n.1 (11th Cir. 1986). The Commissioner has established a five-step sequential
evaluation process for determining whether a plaintiff is disabled and therefore entitled to
benefits. See 20 C.F.R. § 404.1520(a)(4); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th
Cir. 1997). Plaintiff bears the burden of persuasion through step four, while at step five the
burden temporarily shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146
(1987).
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity
since the January 31, 2008 alleged onset date of disability (Tr. 14). ALJ Maram found
Plaintiff met the insured status requirements for DIB under the Social Security Act through
December 31, 2011 (Tr. 14).
At step two, the ALJ found Plaintiff had the severe
impairments of degenerative disc disease of the lumber spine, coronary artery disease and
anxiety disorder (Tr. 14). At step three, the ALJ found Plaintiff’s impairments did not meet
or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Tr. 15).
The ALJ next determined that Plaintiff had the residual functional capacity (RFC) to
1
Unless otherwise specified, all references to 20 C.F.R. will be to the 2011 edition.
As the Regulations for SSI disability payments mirror those set forth for DIB on the matters
presented in this case, from this point forward the Court may refer only to those sections
in 20 C.F.R. pertaining to part 404 and disability insurance benefits.
3
perform light work, “except that he is to have the option to alternate at will between sitting
and standing; he is to avoid climbing, commercial driving, exposure to unprotected heights
or repetitive bending or stooping; he is to work in a temperature-controlled, non-production
environment; he is restricted to simple, routine, repetitive tasks; and he is to avoid
interaction with the general public” (Tr. 16). At step four, the ALJ determined Plaintiff could
not perform any of his past relevant work (Tr. 18). However, relying in part on vocational
expert testimony, the ALJ determined at step five that there were other jobs with sufficient
available positions that Plaintiff could perform (Tr. 18). Thus, the ALJ determined Plaintiff
was not disabled within the meaning of the Social Security Act from Plaintiff’s alleged onset
date through the date of the decision (Tr. 19).
The scope of this Court's review is limited to determining whether the ALJ applied
the correct legal standards and whether the findings are supported by substantial evidence.
See Richardson v. Perales, 402 U.S. 389, 390 (1971); McRoberts v. Bowen, 841 F.2d
1077, 1080 (11th Cir. 1988).
The Commissioner’s findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than
a scintilla, but less than a preponderance. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is
comprised of relevant evidence that a reasonable person would accept as adequate to
support a conclusion. Foote, 67 F.3d at 1560; Moore, 405 F.3d at 1211.
Where the Commissioner’s decision is supported by substantial evidence, the Court
will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that the evidence preponderates against the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan,
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932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision. Foote, 67
F.3d at 1560.
The Commissioner must apply the correct law and demonstrate that he has done
so. While the Court reviews the Commissioner’s decision with deference to the factual
findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &
Human Serv’s., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d
1143, 1145 (11th Cir. 1991). Therefore, in determining whether the Commissioner’s
decision is supported by substantial evidence, the reviewing court must not re-weigh the
evidence, but must determine whether the record, as a whole, contains sufficient evidence
to permit a reasonable mind to conclude that the plaintiff is not disabled. Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
In all Social Security disability cases, the plaintiff bears the ultimate burden of
proving disability, and is responsible for furnishing or identifying medical and other evidence
regarding his impairments. Bowen, 482 U.S. at 146 n.5; Carnes v. Sullivan, 936 F.2d 1215,
1218 (11th Cir. 1991); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); 42 U.S.C. §
423(d)(5) (“An individual shall not be considered to be under a disability unless he [or she]
furnishes such medical and other evidence of the existence thereof as the Commissioner
of Social Security may require.”). It is a plaintiff’s burden to provide the relevant medical
and other evidence that he or she believes will prove the existence of disabling physical or
mental functional limitations. 20 C.F.R. § 404.704.
BACKGROUND AND ANALYSIS
Plaintiff, Jon Struna, was born on November 26, 1956 (Tr. 138). Therefore, he was
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fifty-three (53) years old on the date of the ALJ’s decision. Plaintiff completed the sixth or
seventh grade (Tr. 31,162). Plaintiff has past relevant work as a janitor/maintenance
worker and construction laborer (Tr. 30, 34, 159). Plaintiff raises one issue on appeal.
Plaintiff argues the ALJ erred by relying on answers by a vocational expert to a hypothetical
question which did not include all of Plaintiff’s limitations. See Plaintiff’s Brief at 5.
The Court has reviewed the record in its entirety, including the arguments of the
parties in their briefs and the underlying administrative record containing the evidence
before the ALJ. The Court finds the ALJ’s decision is supported by substantial evidence
and Plaintiff has not identified any reversible error. Accordingly, the decision will be
affirmed.
The Residual Functional Capacity Assessment
The residual functional capacity, or “RFC,” is an assessment, based upon all of the
relevant evidence, of a claimant’s remaining ability to do work despite the claimant’s
impairments. 20 C.F.R. § 404.1545. The Eleventh Circuit has noted that the focus of an
RFC assessment is on the doctors’ evaluations of a claimant’s condition and the resulting
medical consequences. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
In making the RFC determination in this case, the ALJ noted and considered the
medical evidence, including the records from Plaintiff’s primary treating physician, Dr. Jatin
Sheth (see Tr. 14). According to Dr. Sheth’s records, he treated Plaintiff between April 17,
2008 and March 15, 2010 (Tr. 388-403). The ALJ acknowledged the two year treating
relationship with Dr. Sheth, who monitored, treated and assessed Plaintiff’s complaints
during that time (Tr. 14-15; see also Tr. 388-403). Dr. Sheth followed-up with Plaintiff after
a hospitalization in December 2009 (Tr. 14, 531-39). The ALJ noted Plaintiff’s several-year
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history of chronic lower back pain (Tr. 14), for which Plaintiff underwent pain management
treatment from approximately 2001 through 2005, and monitoring by magnetic resonance
imaging (MRI) (Tr. 14, 241-274). The MRI on June 12, 2001 revealed severe multilevel
degenerative disc disease and anterior spondylosis, which the ALJ acknowledged (Tr 14,
254).
The ALJ also accounted for reports throughout the record that Plaintiff had a
myocardial infarction in 1997 (Tr. 14; see also Tr. 33-34 (Plaintiff’s testimony about a heart
attack at age 40), Tr. 172-74 (Plaintiff’s completion of Division of Disability Determinations
form M-44C on heart conditions)). The ALJ noted that subsequent evaluations of chest
pain precluded further heart abnormalities, with the exception of a systolic murmur
discovered during a consultative examination by Dr. Andrew Rutherford, M.D., on June 28,
2008 (Tr. 15; see also Tr. 280-86, 344-57, 545).
The ALJ acknowledged evidence that the Plaintiff’s complaints of chest pain may
have been caused by panic disorder, as was noted by the consultative examiner, Dr. Billie
Jo Hatton, Ph.D. on June 19, 2008 (Tr. 14-15, 275-79).
Dr. Hatton, a licensed
psychologist, diagnosed Plaintiff had a panic disorder without agoraphobia, and noted
possible borderline intellectual functioning (Tr. 275-79). On the day of the examination, Dr.
Hatton found Plaintiff had a global assessment of functioning (GAF)2 of 65 (Tr. 279). In the
2
The Global Assessment of Functioning Scale (GAF) was designed by mental health
clinicians to rate the psychological, social and occupational functioning of an individual on
a mental health scale of 0-100. A GAF score of 41-50 describes “serious symptoms” and
includes “serious impairment in the social, occupational or school functioning.” A GAF
score of 51-60 describes “moderate symptoms” and includes only moderate difficulty in
functioning. A GAF score of 61-70 indicates “some mild symptoms,” but generally
functioning “pretty well, has some meaningful interpersonal relationships.” A GAF score
of 71-80 indicates that if symptoms are present, they are transient and expectable reactions
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Psychiatric Review Technique reports completed by reviewing psychologists Drs. Jill
Rowan and Sharon Ames-Dennard, both found the record supported the diagnosis of a
panic disorder (see Tr. 296-308, 330-343).
On November 12, 2008, Dr. Rowan also completed a Mental Residual Functional
Capacity Assessment and rendered the following opinion:
A. [Plaintiff’s] comprehension and memory appear adequate for simple RRT’s
[or routine repetitive tasks]. B. [Plaintiff’s attention and concentration] appear
compromised. He, however, appears capable of maintaining an adequate
amount of [concentration, persistence, and pace] to fulfill obligations in [a]
work setting that requires simple skills. C. [Plaintiff] appears to have
adequate social skills to perform in a work setting the majority of the time as
objective evidence described [Plaintiff] as friendly and sociable. D. [Plaintiff]
appears capable of adjusting to simple changes in a work setting that are
introduced gradually over time.
(Tr. 328).
Reviewing the physical side of Plaintiff’s impairments, on November 12, 2008, Dr.
Efren Baltazar, M.D., a consulting state agency physician, completed a Physical Residual
Functional Capacity Assessment and found Plaintiff could: (1) occasionally lift or carry up
to twenty pounds; (2) frequently lift or carry up to ten pounds; (3) stand or walk about six
hours, with normal breaks, during an eight hour workday; (4) sit for a total of about six
hours, with normal breaks, during an eight hour workday; and (5) has an unlimited push or
pull capability (Tr. 318-25). He also ascertained Plaintiff could occasionally climb ramps
and stairs, balance, stoop, kneel, crouch and crawl (Tr. 320). Dr. Baltazar noted that
Plaintiff’s symptoms appeared credible and related to a medically determinable impairment,
to psycho-social stressors with no more than slight impairment in social, occupational or
school functioning. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, DSM-IV,
32-34 (4th ed., American Psychiatric Assoc. 2000).
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but added, “with available objective findings, [Plaintiff] appears to be capable of performing
activities within the parameters of this RFC [assessment]” (Tr. 323).
In August 2008, reviewing physician, Dr. James Andriole, D.O., found Plaintiff could
occasionally lift fifty pounds and could frequently lift twenty-five pounds (Tr. 311). Except
for determining Plaintiff should never climb ladders, ropes or scaffolds, the remainder of Dr.
Andriole’s findings are consistent with those of Dr. Baltazar (compare Tr. 310-17 with Tr.
318-25).
The ALJ’s decision demonstrates he considered and weighed the medical opinion
evidence and other evidence of record in assessing Plaintiff’s RFC and finding Plaintiff was
not disabled under the Social Security Act (see Tr. 14-17). In doing so, he stated, “Having
viewed the evidence in the light most favorable to the claimant, the undersigned has given
great weight to the more restrictive physical assessment and great weight to the mental
assessment of Dr. Hatton, the consultative examiner” (Tr. 17).
ALJ Maram found Plaintiff could perform light work, “except that he is to have the
option to alternate at will between sitting and standing; he is to avoid climbing, commercial
driving, exposure to unprotected heights or repetitive bending or stooping; he is to work in
a temperature-controlled, non-production environment; he is restricted to simple, routine,
repetitive tasks; and he is to avoid interaction with the general public” (Tr. 16). The Court
finds substantial evidence supports the RFC determination. Plaintiff does not attack the
RFC per se, but rather attacks the hypothetical question that formed the basis for the VE’s
opinion testimony as differing significantly from the RFC. As stated below, the Court finds
this argument is without merit.
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Work Restrictions as Stated in the RFC and the Hypothetical Question
It is well established in the Eleventh Circuit that when a vocational expert is utilized
at the fifth step in the sequential evaluation process, the hypothetical questions posed must
include all impairments of the particular claimant/plaintiff. Pendley v. Heckler, 767 F.2d
1561, 1562 (11th Cir. 1985). Therefore, the Court must determine whether the ALJ failed
to include any limitations resulting from Plaintiff’s severe impairments in the hypothetical
question that formed the basis of the VE’s testimony, and if so, whether such failure
constitutes grounds for reversal. “Hypothetical questions adequately account for a
claimant's limitations ... when the questions otherwise implicitly account for them.”
Forrester v. Comm'r of Soc. Sec., 455 F. App'x 899, 903 (11th Cir. 2012) (emphasis
added).3 The Court may affirm the ALJ’s opinion when “the ALJ's hypothetical to the VE
properly comprised, expressly or by implication, all of [the Plaintiff’s] impairments, and the
VE's answer constituted substantial evidence that [the Plaintiff] could perform work in the
national economy.” Id. If the ALJ had “asked the vocational expert a hypothetical question
that failed to include or otherwise implicitly account for all of [the Plaintiff’s] impairments,
the vocational expert's testimony,” would not be substantial evidence for a disability
determination. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1181 (11th Cir. 2011). The
ALJ, however, is not required to include in the hypothetical question the non-severe
impairments, or the limitations that were properly rejected as unsupported. See Crawford
3
Unpublished opinions may be cited throughout this order as persuasive on a
particular point. The Court does not rely on unpublished opinions as precedent. Citation
to unpublished opinions on or after January 1, 2007 is expressly permitted under Rule 32.1,
Fed. R. App. P. Unpublished opinions may be cited as persuasive authority pursuant to
the Eleventh Circuit Rules. 11th Cir. R. 36-2.
10
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004); McSwain v. Bowen, 814 F.2d
617, 619-20 (11th Cir. 1987); Loveless v. Massanari, 136 F.Supp.2d 1245, 1250-51 (M.D.
Ala. 2001).
At the August 16, 2010 administrative hearing, vocational expert William Harvey
testified (Tr. 46-49). The VE was present throughout the entire hearing, heard the Plaintiff’s
testimony, was sworn in prior to giving testimony (Tr. 27, 46). ALJ Maram specifically
asked VE Harvey if he had been at the hearing since the beginning and had heard and
understood the testimony (Tr. 46). VE Harvey responded in the affirmative. Id. ALJ
Maram then referred back to his questioning of Plaintiff by asking VE Harvey if the
“hypothetical that I presented to the claimant during testimony essentially provided for a
restrictive range of light work activities. . . ” (Tr. 47). Again, the VE responded affirmatively.
Id. At which point, the ALJ further detailed the operative hypothetical question by stating:
The hypothetical provided for both a exertional as well as nonexertional limitations. The exertional limitations included the
need to alternate sitting and standing.
There were
environmental limitations precluding exposure to temperature
extremes. I’m going to add gases or fumes or other toxins or
pollutants. Non-exertionally, the claimant would be precluded
from complex and detailed job tasks but permitted to perform
simple, routine, repetitive tasks embraced by the unskilled and
lowest and semi-skilled occupational base. And finally, the
claimant would have a moderate socialization deficit that would
preclude jobs other than those considered vocationally as low
stress. And low stress, for the purposes of your analysis,
would include the absence of public contact or stringent
production goals or time targets.
(Tr. 47-48.) Upon inquiry if he needed further clarification, the VE responded, “No, thank
you” (Tr. 48).
When stating the hypothetical question to the Plaintiff, the ALJ detailed:
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This job would require you to lift no more than 20 pounds on occasion.
Occasionally would be about one third of an eight-hour workday. And
frequently, or two-thirds of a, of an eight-hour workday, you’d be lifting less
than 20 pounds. The job would allow you to work either in a sitting position
or in a standing position or alternating between the two. In other words, you
could sit for as long as you want and then stand and vice-versa, stand for as
long as you want and then sit. The job would not require you to do any
repetitive bending, no repetitive stooping, no climbing, no working at heights,
no driving. Job would be indoors so you would not be exposed to any type
of temperature extremes, either hot or cold. It would be a temperaturecontrolled environment such as you’re in right now. ... The job would not
involve any type of complicated or detailed job tasks. It’d be primarily simple,
routine, repetitive type duties. And finally, and very important in your case,
the job would be considered vocationally as a low-stress job. And the reason
it would be low-stress would be for the following reasons. Number one, you’d
have no contact with the public. And secondly, there’d be no stringent
production goals or time targets. It’d be a job that you could do more at your
own pace. ... What I’m talking about is an eight-hour a day job, five days a
week, with breaks of about 15 minutes each in the morning and the afternoon
and another break between 30 and 60 minutes at the meal hour.
(Tr. 44-45). The ALJ had directed Plaintiff to listen very carefully to the requirements of the
job as he described it and to ask questions or have the ALJ repeat anything he did not
understand (Tr. 44). With this understanding, Plaintiff initially stated he could do such a job
as the ALJ described (Tr. 45). These hypothetical details, as well as those set forth
specifically to the VE, were before the VE when he responded to the ALJ’s inquiries.
Plaintiff’s counsel argues that certain phrasing used in the RFC was not used in the
hypothetical given the VE and that the inconsistencies create a reversible error. According
to Plaintiff’s argument, the ALJ’s hypothetical mentioned the phrase, “precluding exposure
to temperature extremes,” while the RFC determination used the phrase, “temperaturecontrolled environment” in describing the environmental restrictions under which Plaintiff
could work. See Plaintiff’s Brief at 6-7. Plaintiff claims the difference in phrasing is
significant to the VE’s response. Id. Plaintiff additionally argues the ALJ’s terminology in
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the hypothetical of restricting the individual from a job with “stringent production goals or
time targets” runs afoul Plaintiff’s RFC that limits Plaintiff to a “non-production
environment.” Id.
The Southern District of Ohio rejected substantially same argument regarding
different phrasing in the RFC and the hypothetical question on an individual’s restriction
from work with productivity quotas. See Deaton v. Astrue, No. 1:10-CV-00461, 2011 WL
4064028 (S.D. Ohio Sept. 13, 2011). In Deaton, “the VE was asked ... to consider a person
who could lift ten pounds frequently, and a person who was limited to jobs with no strict
production quotas.” Id. at *5. Deaton’s residual functional capacity determination limited
him to work with “no production quotas or fast-paced jobs.” Id. at *1. The court in Deaton
found there was “no significant difference between a restriction against ‘production quotas,’
and a restriction against ‘strict production quotas.’ Clearly any reference to a quota means
a number that must be met, and so these references are essentially the same in meaning.
There is no error in the hypothetical question posed to the VE that calls into question the
ultimate conclusion that Plaintiff can perform a reduced range of light work.” Id. at *5. This
Court finds the logic in Deaton applies with equal force to this case. There is no significant
difference between having no stringent production goals or time targets and a nonproduction environment.
In Seever v. Barnhart, 188 Fed. Appx. 747 (10th Cir. 2006), the court addressed a
similar situation when the hypothetical question did not precisely match the claimant’s RFC
determination. In Seever, the ALJ’s operative hypothetical described an individual with
“moderate limitation in his abilities to interact with co-workers and to respond to work
pressures,“ but the plaintiff’s RFC limited the plaintiff to performing light work “where there
13
is no direct contact ... with co-workers.” Id. at 750-51. Plaintiff argued the failure to discuss
“the work-pressures opinion” in the ALJ’s written decision, and hence the RFC, was
reversible error. Id. The court disagreed and found that the ALJ had committed “at most
harmless error.” Id. at 752.
Although Plaintiff attempts to distinguish the ALJ’s finding of Plaintiff’s RFC from the
work limitations stated in the hypothetical question posed to the VE, such distinction is
without meaning. In his written decision, the ALJ found Plaintiff retained the capacity to
work in a temperature-controlled, non-production environment (Tr. 16). In describing these
same limitations to Plaintiff during the hearing, the ALJ stated the job would be “in a
temperature controlled environment such as you’re in right now ... [and] there’d be no
stringent production goals or time targets; ...[i]t’d be a job that you could do more at your
own pace” (Tr. 44-45). Having heard the ALJ’s description to Plaintiff, the ALJ recounted
his description of the hypothetical restrictions when addressing the VE by stating, “There
were environmental limitations precluding exposure to temperature extremes ... [a]nd low
stress for the purpose of your analysis would include the absence of public contact or
stringent production goals or time targets” (Tr. 47-48). The Court does not find a significant
inconsistency between the RFC stated in the ALJ’s written decision and the hypothetical
questions posited to the VE and Plaintiff during the hearing. The differences Plaintiff
highlights in his brief are more a matter of semantics than true distinction. It is sufficient that
“the ALJ’s hypothetical questions closely tracked his written RFC finding.” See Hodge v.
Astrue, No. 3:10-cv-1419, 2012 WL 589984, at *19 (S.D.W. Va. Feb. 22, 2012) (finding
hypothetical questions that “closely track” the RFC finding accurately present all of the
claimant’s severe impairments). Verbatim recitation of the claimant’s RFC assessment is
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not required to accurately portray all of a claimant’s severe impairments in the hypothetical
questions presented to the vocational expert. See Forrester v. Comm'r of Soc. Sec., 455
Fed. Appx. at 903 (a claimant’s limitations may be implicitly accounted for in the
hypothetical questions).
In sum, the Court finds the hypothetical questions in this case adequately addressed
work limitations that are congruent with Plaintiff’s vocational profile and severe
impairments. Plaintiff’s arguments to the contrary are without merit. Having heard the ALJ
restrict an individual, among other things, to work without stringent production goals or time
targets in a temperature controlled environment with absence of public contact, the VE
identified jobs in the national economy that Plaintiff could perform. Having posed a proper
hypothetical question, the VE’s testimony in response constitutes substantial evidence to
support the ALJ’s determination that Plaintiff is not disabled under the Social Security Act.4
See id.
CONCLUSION
For the foregoing reasons, the undersigned finds the decision of the ALJ that Plaintiff
is not disabled within the meaning of the Social Security Act is supported by substantial
evidence. Accordingly, the Commissioner’s decision is hereby AFFIRMED pursuant to
sentence four of 42 U.S.C. § 405(g). The Clerk of the Court is directed to enter judgment
consistent with this Order and Opinion and, thereafter, to close the file. Each party shall
bear its own costs.
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DONE AND ORDERED at Jacksonville, Florida this 16th day of July, 2012.
Copies to all counsel of record
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