Magaha v. Astrue
Filing
35
MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 9/9/2011. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MICHELLE MAGAHA,
Plaintiff
v.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration
Defendant.
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Civil Action No. CBD-09-1624
MEMORANDUM OPINION
Michelle Magaha (“Plaintiff”) brings this action under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”), denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-433, and Supplemental Social
Security Income (“SSI”) payments under Title XVI of the Social Security Act, 42 U.S.C. 1382 et
seq. Before the Court are Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) and
Commissioner’s Motion for Summary Judgment (“Commissioner’s Motion”). The Court has
reviewed said motions and the applicable law. No hearing is deemed necessary. Local Rule
105.6 (D. Md.). For the reasons presented below, the Court hereby DENIES Plaintiff’s Motion,
DENIES Commissioner’s Motion, and REMANDS this case for further proceedings consistent
with this opinion.
I. Background
Plaintiff filed an application for DIB and SSI on December 16, 2006, alleging disability
from November 30, 2004. (R. 18). The claims were both denied initially and upon
reconsideration. (R. 18). On June 6, 2008, Plaintiff testified at a hearing by video, held before
an Administrative Law Judge (“ALJ”), in Richmond, Virginia. (R. 18). Pharmacy records were
added to the record subsequent to the hearing. (R. 18).
The ALJ also arranged for Plaintiff to have a musculoskeletal/neurological consultative
examination after the hearing. (R. 18). The subsequent report, found at Exhibit 12F, was made
part of the record. (R. 18). Plaintiff’s counsel was proffered the report and invited to comment
on it. (R. 18). However, as of the date of the ALJ’s decision, counsel had not responded. (R.
18).
II. ALJ’s Decision
The ALJ evaluated Plaintiff’s claim using the five-step sequential process set forth in 20
C.F.R. §§ 404.1520 and 416.920.1 At the first step, the ALJ determined that Plaintiff has not
engaged in substantial gainful activity (“SGA”) since November 30, 2004, the alleged onset date.
(R. 20). At the second step, the ALJ determined that Plaintiff has the following severe
impairment: “degenerative disc disease of the thoracic and lumbosacral spine with lumbosacral
radiculopathy, a left wrist fracture with residual pain subsequent to surgery, and degenerative
joint disease of her knees.” (R. 21). At the third step, the ALJ determined that Plaintiff does not
have an impairment or combination of impairments that meets or medically equals one of the
listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1 (the “Listings”). (R. 21). Next,
the ALJ determined Plaintiff’s residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except that
she is limited to lifting weights of five pounds. She can work on level surfaces
only, cannot bend, push, pull, climb steps, crawl, kneel or squat, and must avoid
working around heights and moving machinery. Due to her musculoskeletal pain
and the effects of prescription pain medication, she can understand, carry out and
1
20 C.F.R. § 404.1520 pertains to DIB and 20 C.F.R. § 416.920 pertains SSI. While DIB and SSI are not one in the
same, for all practical purposes, the analytical framework used to determine if a claimant qualifies for either
involves the same sequential five-step process.
2
remember only simple instructions as found in entry-level skilled work.
(R. 22). At step four, the ALJ found that based on her RFC, Plaintiff was not capable of
performing her past relevant work (“PRW”) as a cashier. (R. 26). At step five, the ALJ found
that given Plaintiff’s age, education, work experience, and RFC, there are jobs in significant
numbers in the national economy that she can perform. (R. 26). Therefore, the ALJ concluded
that Plaintiff was not under a disability, as defined by the Act from November 30, 2004, through
the date of the decision, August 20, 2008. (R. 27-28).
III. Standard of Review
The role of this Court is to determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the correct legal standards. 42
U.S.C. §405(g); Hayes v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more
than a scintilla, but less than a preponderance, of the evidence presented. Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984). “If there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is substantial evidence.” Johnson v. Califano, 434 F.
Supp. 302, 307 (D. Md. 1977). The Court’s role is a limited one within the Act. Freeman v.
Harris, 509 F. Supp. 96, 99 (D.S.C. 1981). Thus, ordinarily if there is substantial evidence to
support the decision of the Commissioner, then that decision must be upheld. Smith v.
Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). This Court cannot try the case de novo or resolve
evidentiary conflicts, but rather must affirm a decision supported by substantial evidence. Id.
The Court must also determine whether the Commissioner followed correct procedures.
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“A factual finding by the ALJ is not binding if it was reached by means of an improper standard
or misapplication of the law.” Coffman, 829 F.2d at 517. After review, the Court has the power
to affirm, modify, or reverse the decision of the Commissioner, with or without remanding the
case for rehearing. 42 U.S.C. § 405(g); Virek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971).
Finally, it must be noted that hearings on applications for Social Security disability
entitlement are not adversary proceedings. Easley v. Finch, 431 F.2d 1351 (4th Cir. 1970).
Moreover, the Social Security Act is a remedial statute, which is to be broadly construed and
liberally applied in favor of beneficiaries. Dorsey v. Bowen, 828 F.2d 246 (4th Cir. 1987). A
claimant is entitled to a full and fair hearing and failure to have such a hearing may constitute
sufficient cause to remand the case. Sims v. Harris, 631 F.2d 26 (4th Cir. 1980).
IV. Analysis
Plaintiff raises five arguments.2 First, by not considering Plaintiff’s obesity, Plaintiff
contends the ALJ failed to evaluate all of Plaintiff’s impairments. Second, Plaintiff suggests that
there is support in the record for Plaintiff to meet or equal a Listing. Third, Plaintiff objects to
the ALJ’s decision to give “one-time” consultative examiner, neurologist Seth Tuwiner, greater
weight than the opinion of Plaintiff’s treating doctor, Larry Shranatan. Fourth, Plaintiff argues
that if sedentary hypotheticals are presented to the Vocational Expert (“VE”), then sedentary jobs
must be produced, which was not done in this case. Finally, Plaintiff claims the ALJ’s decision
is not supported by the medical evidence because the questions presented to the VE by Plaintiff’s
attorney and by the ALJ were very similar yet resulted in noticeably different responses. This in
turn makes the testimony of the VE inconsistent and unreliable. Plaintiff asserts that to the
2
Plaintiff’s Motion presents these questions in a different order. The Court finds this altered order is more
consistent with the five-step sequential inquiry as stated within the regulations and therefore facilitates the overall
discussion more efficiently.
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extent the ALJ relied on the VE’s testimony, the decision is not supported by substantial
evidence.3
1. The ALJ Did Not Fail To Evaluate Plaintiff’s Obesity
Plaintiff claims the ALJ failed to contemplate obesity as an impairment. The severity of
a medical impairment is initially determined at step two.4 20 C.F.R. § 404.1520(a)(4)(ii). A
seemingly obvious requirement of step two is that a claimant has an identifiable impairment. If
an impairment has not been identified either by the claimant or by a medical source in the record,
then it is not an obvious issue for the ALJ to consider. Here, the question is whether the mere
mention of Plaintiff’s weight and height alone triggers the ALJ’s duty to address Plaintiff’s
purported obesity. Under the regulations and facts of this case, the Court finds that the answer is
“no.”
The regulations at step two clearly state that a claimant will be found not disabled if a
claimant does not have a severe medically determinable impairment. 20 C.F.R. §
404.1520(a)(4)(ii) (“If you do not have a severe medically determinable physical or mental
impairment that meets the duration requirement in § 404.1509, or a combination of impairments
that is severe and meets the duration requirements, we find that you are not disabled.”). Obesity
is identified as a medically determinable impairment and generally addressed by Social Security
Ruling 02-1P, “Evaluation of Obesity.” It states, “When establishing the existence of obesity,
we will generally rely on the judgment of a physician who has examined the claimant and
reported his or her appearance and build, as well as weight and height.” 2000 WL 628049 *3
(SSA). In addition, “When the evidence in a case does not include a diagnosis of obesity, but
3
Because arguments four and five extensively overlap, the Court will address them together.
4
Step three also considers severity but in the context of whether a “severe impairment” meets a Listing; and only
after it has been properly found at step two.
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does include clinical notes or other medical records showing consistently high body weight or
BMI,[5] we may ask a medical source to clarify whether the individual has obesity.” Id. This
explicitly gives the ALJ the discretion to seek an opinion in the absence of a diagnosis of obesity.
Therefore, the Court does not agree with Plaintiff’s interpretation that SSR 02-1p “requires the
ALJ to consider obesity.” Here, the record does not reflect a diagnosis of obesity.
Equally true, the record does not demonstrate a “consistently high weight or BMI” such
that the ALJ should have sought clarification on the issue. Plaintiff asserts in her motion that her
“BMI has consistently been above 30.” (Pl. Mot. 6). SSR 02-1p acknowledges that BMI values
alone are not determinative. It is possible for a person to have a BMI of 30 or above but be of a
more muscular build and, therefore, not obese. Likewise, a person with a BMI below 30 could
be obese if the weight comes from having a large percentage of body fat. The ALJ has the
discretion to pursue the issue or not, particularly when there is no actual diagnosis or mention of
weight as a factor of Plaintiff’s poor health.
Significantly, Plaintiff does not reference a single instance in the record in which either
she or a medical source states that she is obese. The first time that Plaintiff presents obesity as
an issue is in Plaintiff’s Motion. There, Plaintiff identifies obesity as a condition and sets forth
instances in the record where her “BMI has consistently been above 30.” (Pl. Mot. 6). However,
none of these instances states that she is obese or actually lists her BMI. Following a
consultative exam by Dr. Twuiner, he did not opine that Plaintiff was obese, nor whether her
weigh posed an impairment.
Absent the single note suggesting that Plaintiff should exercise to lose weight for her
5
BMI stands for body mass index. “BMI is the ratio of an individual’s weight in kilograms to the square of his or
her height in meters (kg/m2). For adults, both men and women, the [National Institutes of Health] Clinical
Guidelines describe a BMI of 25-29.9 as ‘overweight’ and a BMI of 30.0 or above as ‘obesity.’” SSR 02-1p, 2000
WL 628049 *2 (September 12, 2002).
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back pain, the Court has not been made aware of anything in the record that would require the
ALJ to consider obesity as an impairment. At this step of the analysis, Plaintiff still bears the
burden of proof. While Plaintiff correctly notes that the record does technically reflect a BMI
over 30 (by calculating her purported weight and height), SSR 02-1P states that assumptions will
not be made “about the severity or functional effects of obesity combined with other
impairments. Obesity in combination with another impairment may or may not increase the
severity or functional limitations of the other impairments. We will evaluate each case based on
the information in the case record.” SSR 02-1p, 2000 WL 628049 *5 (September 12, 2002).
In this instance, the Court does not find that either regulations or the facts require the ALJ
to evaluate Plaintiff’s obesity as she suggests. Plaintiff did not raise this issue in her Social
Security application, at the hearing, or elsewhere in the record. The mere existence of a
condition does not necessarily require that the ALJ consider it. See France v. Apfel, 87 F. Supp.
2d 484, 488 (D. Md. 2000) (noting that while there was evidence to establish that the plaintiff
experienced symptoms that are often associated with HIV, the plaintiff “failed to establish that
these symptoms were HIV-related.”).
2. The ALJ’s Conclusion That Plaintiff Does Not Meet Or Equal A Listing Is
Supported By Substantial Evidence
The regulations state that at step three, “If you have an impairment(s) that meets or equals
one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find
that you are disabled.” 20 C.F.R. § 404.1520(a)(4)(iii). Plaintiff claims that the circumstances
surrounding her back impairment are in line with what is required to meet or equal a listing per
20 C.F.R. § 404 Subpart P. Appendix I Section 1.04.6 In addition to continued back pain,
Plaintiff alleges the factual basis arises from her back surgery in February of 2005, at least two
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Plaintiff has not argued that her other impairments meet or equal a Listing, instead choosing to focus exclusively
on her back impairment. The Court likewise will address the issue only as it pertains to her back impairment.
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positive straight leg test results and an MRI done in May of 2008. With regards to the two the
positive straight leg test results, Plaintiff states that one of them was recorded by consultative
examiner Dr. Tuwiner, to whom “the ALJ afforded controlling weight,” and which occurred after
the administrative hearing. (Pl.’s Mot. 5). The other specific positive result was performed in
November of 2006. The Court notes that this represents a span of nine months between results
and the import is they reflect ongoing limitations. Plaintiff also shows that as recently as May of
2008, Plaintiff obtained an MRI of her lumbar spine, which showed “impingement of her S1
right root.” (Pl.’s Mot. 6). Even assuming all these facts are true, it does not vitiate the ALJ’s
determination that Plaintiff does not meet or equal a Listing.
It is important to address the evidentiary requirements, which apply to all musculosketal
system Listings. To satisfy any such Listing, the regulations require a physical examination,
which must:
Include a detailed description of the rheumatological, orthopedic, neurological,
and other findings appropriate to the specific impairments being evaluated. These
physical findings must be determined on the basis of objective observation during
the examination and not simply a report of the individual’s allegation . . . .
Because abnormal physical findings may be intermittent, their presence over a
period of time must be established by a record of ongoing management and
evaluation. Care must be taken to ascertain that the reported examination findings
are consistent with the individual’s daily activities.
§ 404 Subpart P. Appendix I section 1.00 (2)(D).
The Listing for degenerative disc disease, § 404 Subpart P. Appendix I Section 1.04
(“1.04”), states that a claimant must have degenerative disc disease with:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
associated with muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine);
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
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tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in
position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to ambulate
effectively, as defined in 1.00B2b.
Here, while the ALJ could have provided a more in depth analysis regarding his decision
at step three, his efforts to articulate his findings are not wholly inadequate. The ALJ
specifically explains that the record does not provide the necessary evidence needed to meet
section 1.04A, 1.04B or 1.04C. While Plaintiff correctly observes that there are at least two
incidences of a positive straight leg test in the record, a positive straight leg test is but one part of
the criteria of satisfying subsection 1.04A. This is a factual determination. Factual findings are
out of the purview of this Court. Thus, the Court finds that the ALJ’s determination that Plaintiff
does not meet or equal a Listing is supported by substantial evidence.
3. The ALJ’s Decision to Give Controlling Weight to a One-Time Examiner is Not
Supported by Substantial Evidence
Plaintiff claims that “[t]he ALJ gave controlling weight to the one-time consultative
examiner, Seth Tuwiner, noting that [Plaintiff] indicated to Dr. Tuwiner that she had no
limitations in [ADLs] and limitations driving [R. 24].” (Pl.’s Mot. 4). The decision indicates
that the ALJ afforded only some weight to Plaintiff’s treating doctor. With regards to the “onetime consultant,” the ALJ explains that he “gave greater weight to the assessment of Dr. Tuwiner
because it was accompanied by objective findings to support his conclusions, including normal
neurologic function and no impairment of muscle tone or strength despite [Plaintiff’s] subjective
complaints of pain.” (R. 25). The only inquiry for this Court is whether the ALJ complied with
the regulations in reaching his decision. For the reasons provided below, the Court finds that
remand is appropriate.
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The regulations provide the framework for how medical opinions are to be weighed.
“Unless we give a treating source’s opinion controlling weight under paragraph (d)(2) of this
section, we consider all of the following factors in deciding the weight we give to any medical
opinion.” These factors are: 1) examining relationship; 2) treatment relationship; 3) length of
treatment relationship; 4) nature and extent of the treatment relationship; 5) consistency; 6)
specialization; and 7) other factors. 20 C.F.R. § 404.1527(d)(1)-(6). The explanation regarding
“treatment relationship” is particularly germane:
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such
as consultative examinations or brief hospitalizations.
§ 404.1527(d)(2).
It is clear that the regulations favor a medical source opinion with a more complete
perspective rather than an isolated report or exam. The regulations express that a longer
relationship allows for a more holistic picture of a claimant’s impairment, which by contrast is
not possible from objective medical findings viewed in isolation or through a report of an “onetime consultative examiner.” It is equally clear is that great deference is afforded the ALJ. That
said, the ALJ has a duty to provide “specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the [ALJ] gave the treating source’s
medical opinion and the reasons for that weight.” SSR 96-2p, 1996 WL 374188 *4.
With this in mind, the Court now examines the ALJ’s decision. In relevant part, the ALJ
states:
Dr. Shranatan opined on March 8, 2007 that the claimant could lift/carry no more
10
than five pounds, that she could stand/walk only an hour in an eight-hour workday
(and only ten minutes without interruption), sit only ten minutes without
interruption, occasionally balance, crouch and kneel, and never climb, stoop or
crawl. He also noted limitations on handling, pushing, pulling, and working
around heights and moving machinery (Exhibit 7F). Consulting examiner Dr.
Tuwiner opined on July 12, 2008 that Ms. Magaha could stand/walk up to four
hours in an eight-hour workday, that she had no limitations on sitting, and that she
could lift weights of ten pounds occasionally and five pounds frequently. He
opined further that her limitations on bending, stooping, and crouching due to her
lumbosacral radiculopathy, and that she was limited to occasional handling,
fingering and grasping with her left upper extremity. He noted that she had
normal fine motor coordination on the left but that frequent handling and grasping
may exacerbate her pain symptoms (Exhibit 12F).
The undersigned notes that there is substantial conflict between these
assessments. The medical opinion of a treating source is given controlling weight
if it is well-supported and not inconsistent with the other substantial evidence in
the case record. However, controlling weight may not be given unless the opinion
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques (20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2) and SSR 96-2p). In
this case, the undersigned gave the assessment of Dr. Shranatan some, but not
controlling, weight because the assessment was made over a year ago and because
his treatment notes through March 19, 2008 reflect only conservative medical care
(i.e., prescription of medication) with no objective signs of impaired neurologic
function (Exhibit 10F). The undersigned gave greater weight to the assessment of
Dr. Tuwiner because it was accompanied by objective findings to support his
conclusions, including normal neurological function and no impairment of muscle
tone or strength despite the claimant’s subjective complaints of pain.
In sum, the above [RFC] assessment is supported by the actual objective findings
of treating and consulting examiners, results of diagnostic studies, the assessment
of Dr. Tuwiner, and the claimant’s admitted [ADL’s] despite her allegedly severe
and chronic pain.
(R. 25).
The reasoning provided by the ALJ conflicts with the regulations. The fact that an
assessment was made over one year ago is not mentioned as a factor for consideration. The
reasoning provided cannot be reconciled with the regulations, which state, “When the treating
source has seen you a number of times and long enough to have a longitudinal picture of your
impairment, we will give the source’s opinion more weight than we would give it if it were from
a nontreating source.” § 404.1527(d)(2)(i).
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In addition, the ALJ characterizes the treatment by Plaintiff’s doctor as “conservative.”
Plaintiff claims that to the extent Dr. Shranatan’s treatment was “conservative,” it was because
“despite his recommendation, [Plaintiff] declined to have a second surgery on her back since the
first surgery made her pain worse.” (Pl.’s Mot. 4). The ALJ claims that that record says nothing
with regards to a subsequent surgery, but this is factually incorrect. (R. 24). A progress note by
Dr. Sharanatan from March of 2007 states the purpose of the visit was to follow up on back pain.
(R. 189). Further, it states that Plaintiff “desires not to pursue surgery at this time.” (R. 189)
(emphasis in the original). The Court acknowledges that the ALJ’s mistake does not necessarily
render the ALJ’s ultimate characterization wrong. Upon remand the ALJ may still find the
course of treatment conservative, but he must provide a better explanation.
What is equally as troubling to the Court is the ALJ’s reliance on Dr. Tuwiner’s note,
which suggests that Plaintiff had no limitations in ADLs.7 (R. 24). This statement is vehemently
opposed in Plaintiff’s Motion. Plaintiff asserts that there is nothing in the record to support the
notion that Plaintiff ever made such a statement to Dr. Tuwiner. (Pl.’s Mot. 4). The Court notes
that Plaintiff reported significant limitations in ADLs in Exhibit 4F. Plaintiff filled out this
“Disability Report” and states “I can not get comfortable it hurts to stand or sit for long periods
of time.” (R. 99).
The issue of determining the extent to which Plaintiff can sit is directly related to
determining the availability of work in the national economy – a step five determination. At the
lowest end of physical exertion requirements spectrum is “sedentary work.” 20 C.F.R. §
404.1567(a). According to the regulations, while “a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often necessary in carrying out job
7
In Exhibit 12F, Dr. Tuwiner states that with regards to the impact on ADLs “[t]he claimant could do all ADLs,”
and that “[s]he can drive without limitation.” (R. 220). Dr. Tuwiner later also states that “[s]he has no limitation
with sitting.” (R. 220).
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duties.” § 404.1567(a). In addition, “[s]itting would generally total about 6 hours of an 8-hour
workday.” SSR 96-9p, 1996 WL 374184 *3 (July 2, 1996). Therefore an inability to sit as
described would preclude Plaintiff from working. If there are no jobs at step five that Plaintiff
can perform then the ALJ has not met his burden and Plaintiff should be found disabled under
the Act.
With that in mind, the idea that Plaintiff has no limitations in ADLs is seemingly
contradicted by the ALJ’s own observations at the hearing. At the hearing, the ALJ noted on the
record that he observed Plaintiff get up three or four times in a half hour period. (R. 298-99, Tr.
22-23). The ALJ further commented that this observation was consistent with Plaintiff’s
testimony that when she is at the kitchen table she has to get up “a half dozen times an hour.” Id.
Certainly the ALJ, in making a determination regarding Plaintiff’s credibility, may
conclude that this observed conduct was merely for show. However, the ALJ must explain why
despite the observations he made at the hearing, he finds Dr. Tuwiner’s statements regarding
ADLs more credible than contrary statements in the record or his own observations at the
hearing.
4. The Court Rejects the VE’s Testimony
The entire questioning of the VE is difficult to decipher. In turn, the VE’s responses
based on that line of questioning does not inspire confidence. The Court notes even the
Commissioner concedes that “the VE initially listed three jobs in response to the ALJ’s
hypothetical; however, according to the [Dictionary of Occupational Titles], only one of the
three satisfied the RFC requirement for sedentary work.” (Def.’s Mot. 6 n.7). Clearly there was
confusion by some or all participating. Therefore, the Court rejects the testimony of the VE.
Remanding the ALJ’s decision for the reasons previously stated will necessarily have an
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impact on the ALJ’s RFC. Whether this will in turn have some effect on the testimony of the VE
cannot be determined here. The Court does not find it necessary to delve into the myriad of
issues surrounding both the questioning and testimony of the VE.
V. Conclusion
Based on the foregoing, the Court DENIES Plaintiff’s Motion and DENIES
Commissioner’s Motion and REMANDS this case for further proceedings consistent with this
opinion.
September 9, 2011
__________/s/ ____________
Charles B. Day
United States Magistrate Judge
CBD/sm
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