MARSHALL v. COMMISSIONER OF SOCIAL SECURITY
Filing
24
OPINION. Signed by Judge Renee Marie Bumb on 2/24/2015. (drw)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BARBARA E. MARSHALL,
Plaintiff,
Civil No. 13-05731 (RMB)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
Philip Wolf
Wolf & Brown, LLC
228 Kings Highway East
Haddonfield, NJ 08033
Attorney for Plaintiff
Paul J. Fishman
Tomasina DiGrigoli
Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Barbara E. Marshall (the “Plaintiff”) seeks
judicial review pursuant to 42 U.S.C. §§ 405(g) of the final
decision of the Acting Commissioner of Social Security (the
“Commissioner”) denying her application for social security
benefits. For the reasons set forth below, the Court will vacate
the decision and remand for further proceedings consistent with
this Opinion.
I.
Background
a. Procedural Background
Plaintiff applied for social security benefits on March 9,
2010, alleging a disability onset date of May 8, 2009 (the
“alleged disability onset date”). (Administrative Record “R”
13.) The claim was denied on June 17, 2010, and again on
reconsideration on September 1, 2010. (Id.) Plaintiff requested
a hearing before an Administrative Law Judge (“ALJ”), and a
hearing was held before the Honorable Daniel N. Shelhamer on
November 23, 2011. (Id.) Plaintiff testified at the hearing and
was represented by counsel. (Id. at 40.)
On December 15, 2011, the ALJ issued a decision finding
that Plaintiff has not been under a disability from the alleged
disability onset date, May 8, 2009, through the date of decision
and denying Plaintiff’s application. (Id. at 32-33.) Plaintiff
timely filed an appeal, which was denied on July 25, 2013. (Id.
at 1.) At that time, the ALJ’s decision became the final
decision of the Commissioner.
b. Factual Background
Plaintiff was 52 years old, which is defined as an
individual closely approaching advanced age, 20 C.F.R.
§ 404.1563, on the alleged disability onset date. (R. 31.) She
2
resides with her husband, daughter, and two grandchildren. (Id.
at 44.) Plaintiff previously worked as a court administrator,
but was terminated in May 2009 as a cost-saving measure. (Id. at
157.) Plaintiff graduated from high school and took certificate
courses at the Justice Center but failed the state test twice
before she became ill. (Id. at 49.) She now receives a
disability pension. Plaintiff has been diagnosed with rheumatoid
arthritis, steroid dependent Stage II thoracic sarcoidosis,
depression, and anxiety. (Id. at 15.) She also has suffered from
gastroesophageal reflux disease (“GERD”), migraines, and vision
problems. (Id. at 15-18.)
In her Adult Function Report, completed on April 20, 2010,
Plaintiff reported that she helps her daughter raise Plaintiff’s
two grandchildren, and also cares for her pets. (Id. at 164.)
She has no problem completing her personal care activities, such
as dressing and bathing herself. (Id. at 165.) She also does
most of the food preparation, including preparing complete
meals, though her son cooks at times. She also completes
household chores, such as dusting and vacuuming, though she
indicates that these tasks take her longer to complete than
prior to her illness. (Id. at 166.) Plaintiff also leaves her
home two to three times a week, occasionally shops, and drives a
car. (Id. at 167.) She goes to dinner with friends and regularly
attends sports events for her grandchildren. She also states
3
that she can lift things as long as they are not heavy, and can
walk and climb stairs slowly. (Id. at 168.) According to her
doctor’s instructions, Plaintiff exercises a few times a week by
walking around the block. (Id. at 171.)
c. Plaintiff’s Testimony
At the hearing, Plaintiff testified that she has vision
problems due to her long-term steroid therapy but she continues
to drive locally. (Id. at 44-45.) She testified that she
experiences exertional shortness of breath on a daily basis when
completing household tasks, such as laundry. (Id. at 49.) She
does the laundry but it takes her nearly a full day to carry the
loads up the stairs and she must rest after each trip upstairs.
(Id.) She also stated that, while she has less difficulty on
flat surfaces, she can walk only about a quarter of a block and
she could only do this about two-and-a-half times per day. (Id.
at 50-51.) As for standing, she can only stand about 10-15
minutes at a time, about 6 times a day. (Id.) She can sit for
about 15 minutes at a time before getting “antsy” and “very
tired,” although she acknowledged that she experiences no pain
or discomfort while sitting. (Id. at 51.) She testified she
could do this about 6 times a day. (Id. at 54.) Plaintiff also
testified that she is frequently fatigued and nauseous. She
takes medication for the nausea and also takes ginger ale, which
helps. (Id. at 52.) Moreover, Plaintiff testified that the
4
heaviest thing she is able to lift is a gallon of milk and that
her husband helps her to lift the heavier things. (Id. at 57.)
As to her daily activities, Plaintiff testified that she
has a big house that she cleans. (Id. at 54.) She can only
vacuum one room at a time because of her fatigue and shortness
of breath, but she vacuums approximately twice a week. (Id. at
53.) She also dusts, which does not cause her any difficulties,
though her three children sometimes help her with vacuuming or
cleaning the bathrooms. (Id. at 54, 57.) Plaintiff testified
that she tries to garden, but is only able to spend 15 minutes
at a time outside. She further testified that she does not go
outside that much anymore because she is afraid of being around
sick people. (Id.)
Plaintiff testified that she takes medication for her
anxiety issues, which helps. She does not receive any other
treatment for her anxiety. (Id. at 56.)
In addition, she used to have migraines but lately she only
experiences “regular headaches” a few times a week. (Id. at 57.)
However, once she takes aspirin, the headaches go away. (Id.)
She also has arthritis “all over,” which causes weakness in
her hands and for which she takes Arthrotech. (Id. at 58.)
d. The ALJ’s Decision
Applying the requisite five-step analysis, the ALJ
concluded that Plaintiff met the insured status requirements of
5
sections 216(i) and 223 1 of the Social Security Act through
December 31, 2014 (the “date last insured”), and that Plaintiff
has not engaged in substantial gainful activity since the
alleged disability onset date, May 8, 2009. (R. 15.) The ALJ
also found that Plaintiff had severe impairments consisting of
rheumatoid arthritis, steroid dependent Stage II thoracic
sarcoidosis, depression, and anxiety. (Id.) The ALJ also
addressed Plaintiff’s complaints of GERD, cor pulmonale,
migraines, and an eye impairment, but found that “the record
does not support a conclusion that they caused significant
vocationally relevant limitations.” (Id.)
The ALJ next determined that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, App. 1. (Id. at 18.) Furthermore,
based on his findings, the ALJ determined that Plaintiff had the
residual functional capacity to perform sedentary work but
should have no more than occasional interaction with co-workers
and the general public. (Id. at 23.) In making these findings,
1
Sections 216(i) and 223(d), of the Social Security Act
define “disability” as the inability “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.”
6
the ALJ thoroughly addressed the extensive medical record,
including
•
records and function reports of Plaintiff’s treating
physician, Dr. Carl Vitola (Exs. 5F, 17F, 18F, 23F,
25F);
•
treatment records of Plaintiff’s treating pulmonary
specialist, Dr. James Giudice (Exs. 4F, 24F);
•
Plaintiff’s hospital records (Exs. 3F, 15F, 20F-22F);
•
treatment records of examining physician, Dr. John
Chiesa regarding Plaintiff’s gastrointestinal issues
(Ex. 15F, 25F, 24F);
•
treatment records of examining physician, Dr. Ralph
Lanciano, Jr. regarding Plaintiff’s vision
difficulties (Exs. 6F, 16F);
•
report of psychiatric consultative physician, Dr.
David Bogacki (Ex. 8F);
•
treatment records of examining physician, Dr. James
Mamary (Ex. 16F);
•
opinions of state consultative physicians and
psychologists (Exs. 7F, 13F, 9F, 10F, 12F); and
•
various x-rays, CT scans, and pulmonary function tests
(see, e.g., Exs. 2F, 4F).
Moreover, the ALJ stated that Plaintiff’s subjective complaints
regarding the intensity, persistence, and limiting effects of
her alleged symptoms were not credible to the extent they were
inconsistent with the assessed RFC. Specifically, the ALJ found
that Plaintiff’s reports of pain and associated exertional
limitations were not consistent with the longitudinal medical
7
record as well as her own prior statements in her Function
Report. (Id. at 28, 29.)
After performing the RFC assessment, the ALJ determined
that Plaintiff was unable to return to her past relevant work as
a court administrator, which is skilled and light, because it
exceeds her RFC. (Id. at 31.) Furthermore, the ALJ concluded
that Plaintiff was an individual closely approaching advanced
age as of the alleged disability onset date, had at least a high
school education and was able to communicate in English. He
further determined that Plaintiff had acquired telephone skills
from her past relevant work as a court administrator. (Id. at
31-32.) Then, considering Plaintiff’s age (52 years old as of
the alleged disability onset date (id. at 31)), education, work
experience, and RFC as determined, the ALJ found that there were
jobs that existed in significant numbers in the national economy
that Plaintiff could have performed. (Id. at 28-29.) In
particular, the ALJ relied upon the testimony of vocational
expert, William Slaven, who testified that Plaintiff could
perform certain jobs, including contact clerk (DOT 209.387.018),
which would require no in-person contact with the general
public. ((Id. at 32.) Using the medical-vocational rules as a
framework, the ALJ found that Plaintiff was not disabled under
Rule 201.15. Thus, Plaintiff’s application was denied.
II.
Standard of Review
8
A reviewing court must uphold the Commissioner of Social
Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “Substantial evidence” means
“‘more than a mere scintilla. It means 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 Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahearn v. Comm’r, 165 F. App’x 212, 215 (3d Cir. 2006) (citing
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984); Monsour Med.
Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)).
If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)). Stated differently,
[U]nless the [Commissioner] has analyzed all
and has sufficiently explained the weight he
to obviously probative exhibits, to say that
decision is supported by evidence approaches
abdication of the court’s duty to scrutinize
9
evidence
has given
his
an
the
record as a whole to determine whether the conclusions
reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted); see also Guerrero v.
Comm’r, No. 05-1709, 2006 WL 1722356, at *3 (D.N.J. June 19,
2006) (“The ALJ’s responsibility is to analyze all the evidence
and to provide adequate explanations when disregarding portions
of it.”), aff’d, 249 F. App’x 289 (3d Cir. 2007).
While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm’r, 220 F.3d 112,
122 (3d Cir. 2000). See also Fargnoli, 247 F.3d at 42 (“Although
we do not expect the [administrative law judge] to make
reference to every relevant treatment note in a case where the
claimant . . . has voluminous medical records, we do expect the
ALJ, as the factfinder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities
under the regulations and case law.”).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
10
445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). The court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r, 181 F.3d
429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
11
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a). If a claimant
is found to be engaged in substantial activity, the
disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether
the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that [his] impairments are “severe,” [he] is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R.
§ 404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with [his] medical impairments, age, education, past
work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether [he] is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).
12
III. Analysis
Plaintiff contends that the ALJ erred in (1) failing to
specifically identify Plaintiff’s transferrable work skills and
to obtain appropriate testimony from the vocational expert
regarding Plaintiff’s transferrable work skills; (2) failing to
present an accurate and complete hypothetical vocational profile
to the vocational expert; (3) failing to accord controlling or
great weight to the opinions of Dr. Vitola, Plaintiff’s treating
physician; and (4) failing to give appropriate weight to the
conclusion of State Agency psychological consultant, Dr. Joseph
Bencivenne, that Plaintiff was moderately limited in her ability
to complete a workday and workweek without interruptions due to
her psychological symptoms, which would have limited Plaintiff
to unskilled work. Because the Court agrees that the ALJ’s
conclusion regarding Plaintiff’s transferable work skills is not
supported by the evidence of record and, relatedly, that the
hypothetical posed to the vocational expert was incomplete, the
Court will remand for further proceedings.
a. The ALJ Erred in Determining that Plaintiff Had
Transferable Skills
Plaintiff first argues that the ALJ failed to specifically
identify Plaintiff’s transferable work skills or to obtain
testimony from the vocational expert as to Plaintiff’s
transferable work skills, thus necessitating remand. Because
13
Plaintiff has non-exertional limitations in her assessed RFC,
the ALJ may only use the medical-vocational guidelines as a
framework for his decision. See SSR 83-12, 83-14. Using those
guidelines as a framework, which the ALJ properly did here,
whether Plaintiff had transferable work skills was material to
the determination of whether Plaintiff was disabled because the
ALJ concluded that Plaintiff was unable to return to her past
relevant work, which was skilled with specific vocational
preparation (SVP) code of 8. 2 Compare Part 404, Subpart P, App.
2, Rule 201.14 (directing conclusion of “disabled” where skills
are not transferable), with id. at Rule 201.15 (directing
conclusion of “not disabled” where skills are transferable); see
also SSR 82-41. SSR 82-41 defines a skill as
knowledge of a work activity which requires the
exercise of significant judgment that goes beyond the
carrying out of simple job duties and is acquired
through performance of an occupation which is above
the unskilled level (requires more than 30 days to
learn). It is practical and familiar knowledge of the
principles and processes of an art, science or trade,
combined with the ability to apply them in practice in
a proper and approved manner. This includes activities
like making precise measurements, reading blueprints,
and setting up and operating complex machinery. A
2
“To perform a job that is classified as SVP 3 and above,
the individual must have the necessary skills to do so. An
administrative law judge cannot assume that a person whose past
relevant work was skilled can perform any other skilled or
semiskilled work having a lower SVP level.” Oldenburgh v.
Astrue, No. 08-1671, 2009 WL 812010, at *4-5 (M.D. Pa. March 26,
2009) (citing Podedworny, 745 F.2d at 219–221).
14
skill gives a person a special advantage over
unskilled workers in the labor market.
Under the Regulations, skills are transferable “when the skilled
or semi-skilled work activities you did in past work can be used
to meet the requirements of skilled or semi-skilled work
activities of other jobs or kinds of work.” 20 C.F.R.
§ 404.1568(d)(1). The transferability determination “depends
largely on the similarity of occupationally significant work
activities among different jobs.” Id. As Plaintiff points out,
SSR 82–41 also requires the ALJ to make certain findings of fact
when transferability of job skills is an issue, including
identifying the acquired work skills and the specific
occupations to which the acquired work skills are transferable.
SSR 82-41; see also Oldenburgh, 2009 WL 812010, at *4-5. The ALJ
must also ensure his determination is appropriately supported
with citations to the record. SSR 82-41.
In the instant matter, the ALJ identified Plaintiff’s past
relevant work as court administrator, which was skilled work
with an SVP code of 8. (R. 32.) The ALJ then concluded that the
court administrator job allowed Plaintiff to acquire telephone
skills. (Id.) Contrary to Plaintiff’s argument, the ALJ did
explain how Plaintiff’s telephone skills would transfer to one
of the jobs identified by the vocational expert as jobs that
15
Plaintiff could perform. 3 Specifically, the ALJ referred to the
vocational expert, who testified that the contact clerk job
required constant contact with the general public via the
telephone. (Id. at 32, 60.)
However, the Court finds that the ALJ’s determination is
not supported by substantial evidence in the current record.
During the hearing, the ALJ noted that he had “some knowledge of
court administrators” but proceeded to ask Plaintiff to describe
her past work as she performed it. (Id. at 47.) Plaintiff stated
that she worked as a court administrator for approximately 15
years and during that time she was in charge of her department:
I was in charge of all the tickets coming in, all the
criminal cases; making sure that all the clients that
wanted attorneys, made sure all the responses were,
were current and properly put into the computer; set
them up court; making sure the people at the window
paying their tickets, which was my deputy – she, she
did that, but if she had any questions, helping her
out; pulling files when we needed to; setting up
court; my job, budgeting, doing the finances, you know
. . . .
Plaintiff also testified that she worked primarily in the
office. (Id. at 48.) At no point in her testimony did Plaintiff
identify any work activities that occurred via the telephone.
3
The vocational expert testified that a person with
Plaintiff’s acquired skills could perform the following jobs:
personnel administrator, DOT 166.167-018; administrative
assistant, DOT 169.167-010; appointment clerk, 237.367-010; and
contact clerk, DOT 209.387-018. (R. 59-60.)
16
Nor did the vocational expert testify that a court administrator
position ordinarily necessitates extensive use of a telephone in
a manner consistent with that required by the contact clerk
position. Moreover, the DOT job description of a court
administrator contains no mention of any telephone skills or
activities conducted over the telephone. Although in this day
and age, the Court certainly believes that Plaintiff’s position
required frequent use of the telephone, without a shred of
evidence in the record regarding Plaintiff’s phone usage, the
Court is constrained to find that the ALJ’s conclusion is not
supported by substantial evidence.
On remand, however, the ALJ may certainly inquire of
Plaintiff’s telephone experience and may in fact reach the same
conclusion regarding the transferability of Plaintiff’s work
skills. Indeed, a comparison of the job description for a court
administrator and a contact clerk, which the ALJ determined was
a position Plaintiff could perform, reflects significant
similarities in job tasks, suggesting that the ALJ could find
several transferable skills. For example, both positions require
general data compilation and analysis, 4 as well as review to
4
Compare Court Administrator, DOT 188.117-130
(“Investigates problems that affect case flow and recommends or
implements corrective measures. Compiles and analyzes data on
court activity to monitor management performance and prepare
activity reports.”), with Contact Clerk, DOT 209.387-018 (“Sorts
17
ensure compliance with procedures. 5 Plaintiff’s testimony
regarding her daily tasks as a court administrator also suggests
that she developed customer service skills that would likely
translate into the position of contact clerk, which the
vocational expert testified requires telephone communications
with the general public. 6 (R. 60.) But, such findings must be
made by the ALJ with appropriate citation to supporting
materials and/or testimony.
b. The ALJ Erred in Posing a Hypothetical Vocational
Profile to the Vocational Expert
and lists gas- and electric-power service-connection orders for
distribution to various service centers and compiles data from
completed orders for reports: Sorts orders into groups for
delivery to service centers, locating address of customer on
zoned map to determine appropriate center.”).
5
Compare Contact Clerk, DOT 209.387-018 (“Reviews completed
orders for compliance with reporting procedures and compiles
data for various reports. Reviews incompleted orders and
forwards them for processing.”), with R. 47 (“I was in charge of
all the tickets coming in, all the criminal cases; making sure
that all the clients that wanted attorneys, made sure all the
responses were, were current and properly put into the
computer . . . .”).
6
In addition, any general clerical skills that Plaintiff
acquired while a court administrator would probably transfer to
a new position. See SSR 82-41 (“On the other hand, a semiskilled
general office clerk (administrative clerk), doing light work,
ordinarily is equally proficient in, and spends considerable
time doing, typing, filing, tabulating and posting data in
record books, preparing invoices and statements, operating
adding and calculating machines, etc. These clerical skills may
be readily transferable to such semiskilled sedentary
occupations as typist, clerk-typist and insurance auditing
control clerk.”).
18
Plaintiff next argues that the ALJ failed to pose an
appropriate hypothetical based upon Plaintiff’s RFC to the
vocational expert for consideration and, thus, the determination
that Plaintiff could perform other jobs that exist in
significant numbers in the national economy is not supported by
substantial evidence. After inquiring as to whether the
vocational expert had reviewed the “relevant portions of the
file,” the ALJ requested that the expert provide Plaintiff’s
vocational profile. The vocational expert identified Plaintiff’s
prior relevant work as a court administrator, DOT 188.117-130
with an SVP code of 8, performed according to both Plaintiff and
the DOT description at the light exertional level. (R. 59.) The
ALJ then queried whether, in the absence of any functional
limitation, 7 Plaintiff had “any acquired skills that transfer
into sedentary jobs?” (Id.) The vocational expert replied in the
affirmative and proceeded to identify four skilled or semiskilled, sedentary positions that Plaintiff could perform. (Id.)
However, at no point did the ALJ inform the vocational expert
what the Plaintiff’s transferable skills were; nor did the
vocational expert disclose the nature of Plaintiff’s
transferable skills on which he relied in reaching his opinion.
7
The transcript actually records this phrase as “[a]nd the
abstract of any limitation, functional limitation . . . .” (R.
59.) However, this appears to be a transcription error.
19
The ALJ then inquired whether the four jobs identified by the
vocational expert required contact with coworkers or the general
public. (Id. at 60.) The vocational expert explained that the
contact clerk position requires constant contact with the public
but only over the phone. (Id.)
“When an ALJ poses a hypothetical to a VE, that
hypothetical must include all of the plaintiff's impairments
that are supported by the record. If the hypothetical does not
include all of the plaintiff’s impairments, then it is
deficient.” Davis v. Comm’r of Soc. Sec., No. 11-3036, 2012 WL
2594354, at *11 (D.N.J. July 5, 2012) (citing Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). However, the
hypothetical need only “fairly set forth every credible
limitation established by the physical evidence.” Plummer, 186
F.3d at 431; see also Rutherford v. Barnhart, 399 F.3d 546, 55354 (3d Cir. 2005) (“Fairly understood, such references to all
impairments encompass only those that are medically established
(see, for example, Reg. § 929(b)). And that in turn means that
the ALJ must accurately convey to the vocational expert all of a
claimant’s credibly established limitations . . . .” (citing
Plummer, 186 F.3d at 431)).
Here, the ALJ determined that Plaintiff has the RFC to
perform sedentary work but should have no more than occasional
interaction with co-workers and the general public to address
20
her concerns with contracting infections from others. (R. 20.)
Based upon this RFC, it is clear that the ALJ asked the
vocational expert about the relevant limitation – i.e., limiting
in-person interactions with others. Moreover, the vocational
expert was present during Plaintiff’s testimony regarding her
age, education, and past relevant work. (Id. at 44, 47-49, 58.)
What causes this Court concern, however, is the fact that the
vocational expert’s testimony regarding the availability of jobs
appears to depend upon the transferability of Plaintiff’s
acquired skills. Yet, neither the ALJ nor the vocational expert
identified any such skills on the record. While the ALJ later
identified what he viewed as Plaintiff’s transferable skills
(i.e., telephone skills), he did not present this information to
the vocational expert prior to the vocational expert proffering
his opinion. Thus, as above, the Court has no other choice but
to remand this matter so that the ALJ may present the vocational
expert with a complete and accurate hypothetical upon which the
expert may rely in rendering an opinion about the other jobs in
the national economy that Plaintiff may perform. Again, the same
conclusion may in fact be reached on remand, but it must be
based on a proper foundation.
IV.
Analysis
For the reasons set forth above, the Court is constrained
to remand this matter to the ALJ for further consideration
21
consistent with this Opinion. Moreover, because remand is
necessitated on these two grounds, the Court need not reach
Plaintiff’s remaining arguments.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 24, 2015
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