PARADISE v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION. Signed by Judge Susan D. Wigenton on 11/17/14. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN PARADISE,
Civil Action No. 13-05987 (SDW)(SCM)
Plaintiff,
v.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
November 17, 2014
Defendant.
WIGENTON, District Judge.
Before the Court is Plaintiff John Paradise’s (“Plaintiff” or “Paradise”) appeal of the final
administrative decision of the Commissioner of Social Security (“Commissioner”) that he is not
disabled under Title II, 42 U.S.C. § 1614(a)(3)(A), of the Social Security Act (the “Act”). This
appeal is decided without oral argument pursuant to Local Civil Rule 9.1(b). This Court has subject
matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C. § 1391(b).
For the reasons set forth below, this Court REMANDS the Commissioner’s decision.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
On March 30, 2009, Plaintiff filed a Title II application for Disability Insurance Benefits
and a Title XVI application for Supplemental Security Income. (R. 12.) Plaintiff’s claim was
denied both initially and upon reconsideration. (R. 12.) Subsequently, Plaintiff requested a hearing,
which was held on March 2, 2011 before Administrative Law Judge Donna Krappa (“ALJ Krappa”
or “ALJ”). (Id.) On August 24, 2011, the ALJ issued a decision denying the Plaintiff’s applications,
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concluding that Plaintiff was not disabled at step five of the sequential analysis. (R. 12-22.)
Thereafter, Plaintiff sought an Appeals Council review, and on August 8, 2013 the Council upheld
the ALJ’s decision. (R. 1-4.) On October 8, 2013, Plaintiff commenced this action, seeking a
determination that the ALJ improperly evaluated his treating physician’s opinions, and that her
hypothetical question to the vocational expert was improper. (Plaintiff’s Brief (“Pl. Br.”) 2.)
B. Personal and Employment History
Plaintiff is a forty-six-year-old male with a G.E.D. (R. 152, 175.) He is single with no
children, and resides with his parents. (R. 17.) Prior to his application for disability benefits,
Plaintiff held several jobs, including telemarketer, construction laborer, bartender, stockbroker,
electrician, and loan officer. (R. 171.)
Most recently, Plaintiff worked as an auto parts
deliveryman. (Id.) Plaintiff has not worked since December 1, 2006. (R. 12, 170.) He alleges that
he became disabled as of January 1, 2007, based primarily upon bipolar disorder and depression,
as well as osteoarthritic changes in both knees, back pain, and breathing difficulties. (Id.) Plaintiff
is 6’2” tall and weighs between 220 and 230 pounds. (R. 17, 169.)
On February 25, 2009, 1 as a condition for probation on a drug possession charge, Plaintiff
was enrolled in outpatient treatment at the Mental Illness Chemical Abuse Program (“MICA”) at
Bergen Regional Medical Center. 2 (R. 294.) He was discharged from the program on April 30,
2009 with a diagnosis of bipolar disorder and was prescribed Wellbutrin, Lamictal, and Seroquel.
(Id.) At that time, Plaintiff received a Global Assessment of Functioning (“GAF”) score of 52. (R.
307.)
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Although the treatment notes from Bergen Regional Medical Center are the earliest medical notes in the record,
Plaintiff alleges that he started receiving psychiatric treatment relating to his bipolar disorder and depression from
Dr. Acquaviva in 2000. (See Pl.’s Br. 5; R. 55-56.)
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Plaintiff has a history of drug abuse and has been jailed three times for drug possession. (R. 18.)
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On June 6, 2009, Plaintiff was evaluated by consultative physician Dr. Harold Goldstein.
(R. 237.) Dr. Goldstein noted that Plaintiff had a GAF of 60. (R. 239.) Dr. Goldstein reported that
although Plaintiff was irritable, he was cooperative and responsive to all questions, had no apparent
psychomotor impairment, and displayed intact judgment and a good fund of knowledge. (R. 23739.) He diagnosed Plaintiff with mood and personality disorders, but concluded that Plaintiff’s
symptoms did not rise to the level of a bipolar disorder. (Id.)
On June 11, 2009, consultative physician Dr. Robert Starace completed a Psychiatric
Review Technique form and a Mental Residual Functional Capacity (“RFC”) form based on prior
evaluations of Plaintiff by other physicians and his own evaluation of the Plaintiff. (R. 240-54.)
Dr. Starace found that Plaintiff had mild to moderate limitations in daily living activities,
maintaining social functioning, concentration, persistence, and pace, and had no episodes of
decompensation. (R. 248.) Dr. Starace also noted that Plaintiff would have mild limitations
interacting with the public, accepting instructions and criticisms from supervisors, and maintaining
relationships with coworkers. (R. 253.) Ultimately, Dr. Starace concluded that Plaintiff’s “mood
difficulties” satisfied none of the diagnostic criteria. (R. 240-54.)
Regarding Plaintiff’s physical limitations, on July 22, 2009, during an examination by Dr.
Richard Mills, a consultative examiner, Plaintiff reported that he had had three knee surgeries and
complained of knee and neck pain. (R. 258.) Dr. Mills found that Plaintiff had minimal crepitus in
both knees, left patellar crepitus accompanied by pain, decreased cervical range of motion and no
reflexes in his lower extremities. (R. 259.) Also, on August 22, 2009, Dr. Benjamin Cortijo,
medical consultant for the state, examined Plaintiff and opined that Plaintiff could “lift 10 pounds
frequently, 20 pounds occasionally, as well as sit, stand or walk about six hours in an eight-hour
workday.” (R. 267.)
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In November 2009, Plaintiff allegedly resumed mental treatment with treating physician
Dr. Joseph Acquaviva—Dr. Acquaviva indicated that he treated Plaintiff monthly beginning in
March of 2000, but there are no treatment notes on the record before November of 2009. (R. 3133, 334.) Dr. Acquaviva performed a Mental RFC assessment of Plaintiff and concluded Plaintiff
was bipolar, and identified nine different symptoms he suffered from, including: poor memory,
mood disturbance, difficulty thinking or concentrating, and generalized persistent anxiety. (Id.)
Dr. Acquaviva also indicated that the side effects of Plaintiff’s prescribed medications, Lamictal
and Seroquel were fatigue and lethargy. (R. 335.) Dr. Acquaviva opined that Plaintiff’s treatment
would cause him to miss more than three days of work per month, and that Plaintiff had poor to
no ability to perform jobs requiring unskilled work. (R. 337.) However, Dr. Acquaviva did not
complete the last portion of the assessment regarding Plaintiff’s functional ability with respect to
daily living, difficulties in maintaining social functioning, deficiencies of concentration, and
episodes of decompensation. (R. 338.)
On February 2, 2011, Plaintiff returned to Dr. Acquaviva for another functional capacity
assessment, specifically regarding drug and alcohol abuse. (R. 494.) Dr. Acquaviva noted many of
the same symptoms highlighted in his original assessment, but found significant improvements in
Plaintiff’s ability to perform unskilled and other types of work. (R. 488-99.) Additionally, this time
around, Dr. Acquaviva completed the functional limitation matrix, noting that Plaintiff had slight
limitations in activities of daily living and social functioning, and frequent concentration issues,
and repeated episodes of decompensation. (R. 499.) Lastly, he noted Plaintiff’s GAF was 52, which
was lower than his previous two GAF assessments of 55 and 65. (R. 334, 495.)
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II.
LEGAL STANDARD
A. Standard of Review
Under 42 U.S.C. § 405(g) district courts have plenary review of the ALJ’s decision to deny
a plaintiff’s application for Social Security benefits. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
A reviewing court must uphold the ALJ’s factual determinations if they are supported by
“substantial evidence.” 42 U.S.C. § 405(g); Fargnoli v. Massanari, 247 F.3d 24, 38 (3d Cir. 2001);
Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial evidence means more than “a mere
scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). It means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. Furthermore, “[t]his standard is not met if the Commissioner
‘ignores, or fails to resolve, a conflict created by countervailing evidence.’” Bailey v. Comm’r of
Soc. Sec., 354 F. App’x 613, 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The ALJ must consider and weigh all the pertinent medical and non-medical evidence, and
“adequately explain in the record his reasons 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)); see also Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
However, if the factual record is adequately developed, “the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Consol. v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). Additionally, a reviewing court may not set aside an ALJ’s decision simply because a
reviewing court would have reached a different decision. Cruz v. Comm’r of Soc. Sec., 244 F.
App’x 475, 479 (3d Cir. 2007) (citation omitted). The court is required to give substantial weight
and deference to the ALJ’s findings. See Scott v. Astrue, 297 F. App’x 126, 128 (3d Cir. 2008).
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In considering an appeal from a denial of benefits, remand is appropriate “where relevant,
probative and available evidence was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). A decision to
“award benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984).
B. Standard for Determining Eligibility of Disability Benefits
The Social Security Administration has promulgated a five-step evaluation to be used in
determining whether an individual is entitled to Social Security disability benefits. See 20 C.F.R.
§ 404.1520. If the ALJ finds that the claimant is disabled or not disabled at a given step the inquiry
does not proceed any further. 20 C.F.R. § 404.1520(a)(4). At the first step of the evaluation, the
ALJ determines whether the claimant is currently engaged in substantial gainful activity (“SGA”),
which is defined as work that involves doing significant and productive physical or mental duties
for pay or profit. 20 C.F.R. § 404.1520(a)-(b). If the claimant engages in SGA, she is not disabled,
for purposes of the receiving social security benefits, regardless of the severity of his
impairment(s). 20 C.F.R. § 404.1520(b). If the claimant establishes that she is not currently
engaged in SGA, the ALJ then determines whether, at step two, the claimant suffers from a severe
impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A claimant is not
disabled, and therefore does not qualify for disability benefits, if the ALJ finds that the claimant is
not suffering from a severe impairment. 20 C.F.R. § 404.1520(c).
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At step three of the evaluation, the ALJ must determine whether the claimant’s severe
impairment meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant
suffers from a listed impairment or the claimant’s severe impairment is equal to a listed
impairment, the claimant is disabled and is automatically entitled to disability benefits. 20 C.F.R.
§ 404.1520(d). However, if the claimant does not suffer from a listed impairment or an equal
impairment, the ALJ assesses the claimant’s RFC based on all the relevant evidence in the record
before proceeding to step four. 20 C.F.R. § 404.1520(e). At step four, the ALJ determines whether
the claimant retains the RFC to perform their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv).
If the claimant can perform their past relevant work, the ALJ’s inquiry ends and the claimant is
not eligible for disability benefits. 20 C.F.R. § 404.1520(f). If the claimant cannot perform their
past relevant work, the ALJ proceeds to step five and must consider the claimant’s RFC, age,
education, and work experience to determine if the claimant can make an adjustment to other work.
20 C.F.R. § 404.1520(a)(4)(v).
III.
DISCUSSION
The ALJ’s Decision
In this case, the ALJ concluded that Plaintiff had not engaged in SGA for the required
period of time, and that none of his impairments, though severe, considered individually or
collectively, met or medically equaled any of the listed impairments in 20 C.F.R. Part 404, Subpart
P, App. 1. (See R. 15.) In her RFC analysis, between steps three and four, the ALJ accorded treating
physician Dr. Acquaviva’s assessments and medical opinions no deference, and instead concluded
that Plaintiff has the RFC to perform the full range of light work as defined by 20 C.F.R. §§
404.1567(b) and 416.967(b). (See R. 16.) At step four, the ALJ found that Plaintiff could not
perform his past relevant work. (R. 20.) At step five, the ALJ called a vocational expert, and based
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on the expert’s testimony, as well as Plaintiff’s age, education, work experience, and RFC,
concluded that Plaintiff was not disabled. (R. 21.)
Plaintiff argues that the ALJ failed to give his treating physician’s functional capacity
assessment due deference, displayed bias in a footnote, and failed to properly utilize the vocational
expert’s testimony. (Pl.’s Br. 1-2.) The Commissioner contends that the ALJ’s reasoning for
rejecting the treating physician’s assessment was supported by the totality of the medical evidence,
and that since the ALJ found Plaintiff’s subjective complaints not credible based on all the medical
evidence, omitting them from her hypothetical questions to the vocational expert does not
constitute error. (Comm. Br. 13.)
A. Treating Physician’s Opinion
An ALJ has a duty to evaluate all relevant evidence in the record, and must explain the
reasons for discounting the evidence he rejects. See Diaz v. Comm’r of Soc. Sec., 577 F.3d 500,
505-06 (3d Cir. 2009); Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001). The Social Security
Regulations describe the amount of weight an ALJ must give to the treating physician’s opinion.
See 20 C.F.R. § 404.1527; 20 C.F.R. § 416.927. The opinion of a treating physician is generally
entitled to great weight, and in some cases controlling weight, when the opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence” of record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also
Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (A treating physician’s
opinion should be given “great weight, ‘especially when their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over a prolonged period of time.’”
(quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000))).
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Courts in this Circuit grant a treating physician’s opinion substantial weight, and in order
for the ALJ to reject such an opinion, she must adequately explain her reasoning. Brownawell, 554
F.3d at 355; see also Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)). In denying
Plaintiff’s application, the ALJ rejected Dr. Acquaviva’s opinion and greatly credited the opinions
of the state physician Dr. Starace, and consultative examiners Drs. Goldstein and Mills. (R. 18.)
While there was a question regarding Dr. Acquaviva’s status as Plaintiff’s treating physician, given
that there is no evidence on the record to substantiate Plaintiff’s claim that he had been treated
regularly by Dr. Acquaviva since 2000, ALJ Krappa discredited Dr. Acquaviva’s opinion for other
reasons.
In discussing Dr. Acquaviva’s findings, ALJ Krappa stated,
“[a]lthough Dr. Acquaviva reported significant limitations
regarding the claimant’s mental capacity, I do not find his
limitations fully supported by the record. Review of the overall
record indicates that the claimant is never given a GAF below 50. A
GAF of 52 indicates only a moderate difficulty with social and/or
occupational functioning. Dr. Acquaviva’s limitations regarding
concentration, persistence and pace and episodes of decompensation
would suggest a much more limited GFA [sic] than those given.” 3
(R. 19.) This represents the full extent of the ALJ’s explanation for disregarding Dr. Acquaviva’s
opinion. In other words, the ALJ reasoned that Dr. Acquaviva’s opinion did not warrant deference
because it was incongruent with the GAF assessments of the other physicians in this case. This
Court declines to determine, at this juncture, whether a treating physician’s opinion may be
discounted on incongruent GAF findings alone, however, this Court does find that the ALJ’s
explanation of the basis for rejecting Dr. Acquaviva’s opinion is woefully insufficient.
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It should be noted that the record does not reflect that Dr. Acquaviva’s assessment is wholly inconsistent with that
of the other physicians. For example, while being treated at Bergen Regional Medical Center in February of 2009,
one physician gave Plaintiff a GAF of 52, same as Dr. Acquaviva reported in November of 2009. (Compare R. 307
and 334.)
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Therefore, upon remand, because the substantial evidentiary weight accorded to the
opinions of treating physicians stems from the belief that “their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over a prolonged period of time[,]”
Morales, 225 F.3d at 317, the ALJ is first directed to develop the record regarding the extent of
Dr. Acquaviva’s treating relationship with Plaintiff. Next, the ALJ should conduct a thorough
credibility evaluation comparing Dr. Acquaviva’s opinion with that of the physicians upon whose
opinions she relied, while being mindful that a treating physician’s opinion is entitled to controlling
weight only “when it is well-supported by medical evidence and is consistent with other evidence
in the record.” Johnson v. Comm’r of Soc. Sec., 398 Fed. Appx. 727, 732 (3d Cir. 2010).
B. The ALJ’s Footnote Regarding Treating Physicians
In a footnote to her discussion of Dr. Acquaviva’s findings, ALJ Krappa described several
reasons why a treating physician might be inclined to exaggerate a patient’s limitations. (R. 19
n.1.) She explained that,
“when presented by a patient with a form requiring assessment of a
patient’s functioning, a doctor or psychologist may be tempted to
overstate the severity of the patient’s limitation(s) out of sympathy
for the patient’s financial circumstances or the patient’s lack of
insured medical treatment—both of which could be significantly
improved were a patient to be awarded disability benefits. A doctor
or psychologist may provide a patient with a favorable disability
assessment as a reward for the patient’s choosing the
doctor/psychologist for treatment[,] . . . [or] for personal gain, as
either new or improved health insurance coverage (i.e. Medicare as
opposed to Medicaid) may enable or assist the patient’s return for
future treatment[,] . . . [or] in the hopes of encouraging the patient
to choose the doctor for future services and/or encouraging the
patient or the patient’s representative to recommend the
doctor/psychologist to others.”
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Id. The purpose of this footnote is unclear. ALJ Krappa did not clarify whether she was making a
specific finding that Dr. Acquaviva overstated Plaintiff’s limitations in a quid pro quo scheme.
Contrary to the Commissioner’s argument that the footnote was merely a general statement that
treating physicians, like other witnesses, are not immune to bias, it is difficult to deny the
connection between the paragraph in which the ALJ declared that Dr. Acquaviva’s opinion lacked
credibility because he exaggerated Plaintiff’s condition and the corresponding footnote in which
she suggests that treating physicians may be guided by personal interest when opining on their
patient’s medical condition. There is no evidence on the record regarding what Dr. Acquaviva
stands to gain from Plaintiff’s success in this matter. While this Court is not convinced that this
footnote necessarily connotes bias against Dr. Acquaviva or Plaintiff, the ALJ should refrain from
such inflammatory commentary in the future unless it is supported by evidence on the record.
C. The ALJ’s Hypothetical Questions to the Vocational Expert
The ALJ decided the case at step five of the sequential analysis after soliciting testimony
from a vocational expert. (R. 21.) “Testimony of vocational experts in disability determination
proceedings typically includes, and often centers upon, one or more hypothetical questions posed
by the ALJ to the vocational expert.” Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). An
ALJ can only consider the vocational expert’s testimony “for purposes of determining disability if
the question accurately portrays the claimant’s individual physical and mental impairments.” Id.
(citation omitted); see also Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004) (“‘A
hypothetical question must reflect all of a claimant’s impairments [(or limitations)] that are
supported by the record; otherwise the question is deficient and the expert’s answer to it cannot be
considered substantial evidence.’” (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.
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1987))). “In order for the answer to be considered substantial evidence, all of the plaintiff’s
impairments supported in the record must be reflected in the hypothetical.” Chrupcala, 829 F.2d
at 1276. Moreover, challenges “to the adequacy of hypothetical questions posed to a vocational
expert often boil down to attacks on the RFC assessment itself.” Rutherford v. Barnhart, 399 F.3d
546, 554 n.8 (3d Cir. 2005).
Here, the hypothetical questions submitted to the vocational expert were deficient. In
addition, the ALJ inexplicably gave partial credence to Dr. Acquaviva’s opinion by incorporating
some of his findings into the hypothetical questions even after disregarding his opinion entirely in
determining Plaintiff’s RFC. For instance, the ALJ asked the vocational expert to assume, in part,
that Plaintiff, “is able to perform light work, . . . unskilled and repetitive work that permits three
breaks during the workday . . . and can only have occasional contact with supervisors and coworkers but no contact with the general public.” 4 (R. 70-71.) Thereafter, the ALJ asked the
vocational expert follow-up questions that introduced some of the findings by Dr. Acquaviva: (1)
ability to maintain mental concentration during the entire workday; (2) the effect of missing
multiple workdays during the month because of unpredictable symptoms; and (3) dealing with
normal stress. (R. 72.) Whereas, in his Mental RFC assessment, Dr. Acquaviva rated Plaintiff poor
in several other categories regarding his abilities to perform unskilled work, such as: remembering
work-like procedures, maintaining attention for two-hour segments, and sustaining an ordinary
routine without special supervision. (R. 337.)
As discussed supra, while the ALJ is permitted to credit or discredit medical evidence on
the record, she must provide an adequate explanation for such a decision. Because the ALJ failed
to adequately explain her reasoning for discrediting Dr. Acquaviva’s findings, in the RFC analysis,
4
The vocational expert concluded that the Plaintiff could not perform his past relevant work, but that there are
employment opportunities in Northern New Jersey and Metro New York area that he could perform. (R. 71-72.)
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the hypothetical questions submitted to the vocational expert were therefore deficient as they were
not based on all medically supported impairments. See, e.g., Burns v. Barnhart, 312 F.3d 113, 12324 (3d Cir. 2002) (citing Chrupcala, 829 F.2d at 1276) (requiring “greater specificity” in
conveying a claimant’s disabilities to a vocational expert, and concluding that vocational expert
testimony did not provide substantial evidence because the ALJ’s hypothetical questions failed to
incorporate specific findings).
Furthermore, the ALJ’s decision to include some of Dr.
Acquaviva’s discredited findings in her hypothetical questions is confusing.
On remand, the ALJ is instructed to explicitly identify which of Plaintiff’s physical and
mental impairments are supported by the record and ensure that her hypothetical questions to the
vocational expert clearly and adequately convey the characteristics of said limitations.
CONCLUSION
For the foregoing reasons, the ALJ’s decision is REMANDED for further proceedings
consistent with this Opinion.
SO ORDERED.
s/ Susan D. Wigenton
Susan D. Wigenton, U.S.D.J.
cc: Steven C. Mannion, U.S.M.J.
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