RIVERA v. COMMISSIONER OF SOCIAL SECURITY
Filing
12
OPINION. Signed by Judge Jose L. Linares on 12/9/2015. (anr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SAMARY RIVERA,
Plaintiff,
v.
Civil Action No. 15-1447(JLL)
OPINION
:CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
¶
Defendant.
LINARES, District Judge.
This matter comes before the Court upon the appeal of Samary Rivera (“Plaintiff’) from
the final decision of the Commissioner upholding the final determination by Administrative Law
Judge (“AU”) Barbara Dunn denying Plaintiff’s application for Supplemental Security Incom
e
(“SSI”) under the Social Security Act (the “Act”). AU Dunn found that Plaintiff did not have
a
disability under the Act from May 20, 2009 to the time of the decision.
The Court has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g), and resolves
this matter on the parties’ briefs pursuant to Local Civil Rule 9.1(f).
After reviewing the
submissions of both parties and for the following reasons, this Court remands the matter
to the
AU for further consideration.
I.
BACKGROUND’
A.
Factual History
“R.” refers to the Administrative Record, which uses continues pagination and can be found
at ECF No. 6.
Plaintiff was born on April 15, 1971. (R. 29.) She received a formal education through
the seventh grade. (Id.) At the hearing in this matter on July 1, 2013, Plaintiff testified that she
lives with three of her children, two of whom are autistic. (Id. 36-37.) She stated that she suffers
from Attention Deficit Hyperactivity Disorder (“ADHD”), which has made it difficult for her to
work and hold down a job. (Id. 31.) Plaintiff also testified that her ADHD makes it difficult to
“understand certain things” and that it also causes her to be “forgetful” and to not “get things
done.” (Id. 35.) She provided the AU with an example of this forgetful behavior, stating that “[i]f
I start cooking.
mom, you left.
.
.
.
.
rice, I walk away and I forget that it’s on the stove and my daughter is like,
the rice cooking.” (Id. 36.) Plaintiff takes medication to treat her ADHD. (Id.
35, 45.) Plaintiff also reported that she gets panic attacks. (Id. 33-34.) She testified that these
panic attacks occur both at home and when she is outside her home. (Id.) Plaintiff testified that
the panic attacks happen roughly three times per week and generally last between twenty and thirty
minutes. (Id. 34-3 5.) In addition to the panic attacks and ADHD, Plaintiff also testified that she
has diverticulitis, “a gallbladder issue” that requires surgery, asthma, and back pain. (Id. 42-43,
44, 47.)
Plaintiff also testified that she had been receiving treatment from Dr. Castillo at the
University Behavioral Health Care (“UBHC”) once a month for about two years. (Id. 38-39.) She
claimed that she sees Dr. Castillo “just for prescription medication,” and that he also treats her two
sons and her daughter. (Id. 39, 40.) Plaintiff also sees Mr. Henry, a therapist at UBHC. (Id. 39.)
Plaintiff reported that she had been seeing Mr. Henry once a month for two years. (Id. 39-40.)
She testified that she was referred to these health professionals by the “people helping my son...
so [that] I could be able to function, [and] be able to do the things that I have to do.” (id. 40.)
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Plaintiff stated that the diverticulitis has caused her to lose weight because of her restricted diet
and that the medication she takes to treat the condition had given her side effects. (Id. 43.)
Plaintiff further reported that she gets migraine headaches, and that the migraines occur
twice per week and last approximately half a day. (Id. 45.) She said that she prefers not take
Excedrin for the migraines, as it would counteract with the medications she was taking for her
other medical conditions. (Id.)
Plaintiff testified that she worked in 2010 selling Avon products. (Id. 50-51.) She was also
self-employed and provided childcare services from 2008-2010. (Id. 49-51.) Prior to 2008,
Plaintiff stated that she worked at Wal-Mart, and had briefly been employed at Toys R Us. (Id.
49-54.)
B.
Procedural History
Plaintiff filed applications for Disability Insurance Benefits (“DIB”) on October 3, 2011
and for Supplemental Security Income (“SSI”) on October 24, 2011. (Id. 13.) In both of these
applications, Plaintiff claimed she had been disabled beginning May 20, 2009. (Id.) These claims
were initially denied on December 6, 2011 (Id. 62-72), and upon Reconsideration on May 16,
2012. (Id. 86-94.) Plaintiff filed a written request for a hearing, and the hearing was held on July
1, 2013. On August 22, 2013, AU Dunn held that Plaintiff did not have a disability as defined
under the Act. (Id. 10-22.)
On October 19, 2013, the Appeals Council denied Plaintiff’s requested review of the AU’s
decision (Id. 1-6) and Plaintiff thereafter commenced this action in forma pauperis on February
25, 2015 (ECF No. 1-2.) Both parties filed briefs in accordance with Local Civil Rule 9.1. (ECF
No. 10 (Brief of Plaintiff (“P1.’s Br.”)); ECF No. 11 (Defendant’s Brief Pursuant to Local
Civil
Rule 9.1 (“Def.’s Br.”)).)
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4
II.
STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported
by “substantial evidence.” 42 U.S.C.
§ 405(g), 1 383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). Substantial evidence is “more than a mere scintilla but may be less than a
preponderance.” Woody v. Sec ‘y ofHealth & Human Servs., 859 F.2d 1156, 1159 (3d Cir. 1988).
It “does not mean a large or considerable amount of evidence, but rather such relevant eviden as
ce
a reasonable person might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (citation omitted). Not all evidence is considered substantial. For instance,
[a] single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence
particularly certain types of
evidence (e.g. that offered by treating physicians) or if it really
constitutes not evidence but mere conclusion.
—
—
Wallace v. Sec ‘y ofHealth & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (quoting Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). The AU must make specific findings of fact
to
support his ultimate conclusions. Stewart v. Sec y ofHealth, Educ. & Welfare, 714 F.2d 287, 290
(3dCir. 1983).
The “substantial evidence standard is a deferential standard of review.” Jones v. Barnhart,
364 F3d 501, 503 (3d Cir. 2004). It does not matter if this Court “acting de novo might
have
reached a different conclusion” than the Commissioner. Monsour Med. Ctr. V. Heckle
r, 806 F.2d
1185, 1190-91 (3d Cir. 1986) (citing HunterDouglas, Inc. v. Nat’l Labor Relations Bd.,
804 F.2d
808, 812 (3d Cir. 1986)). “[T]he district court.
.
.
is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d
1178, 1182
(3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)). A Court
must
5
nevertheless “review the evidence in its totality.” Schonewolfv. Callahan, 972 F. Supp. 277, 284
(D.N.J. 1997) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984)). In doing so, the Court
“must ‘take into account whatever in the record fairly detracts from its weight.” Id. (citing
Wi//banks v. Sec’y ofHealth & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988)).
A court must further assess whether the AU, when confronted with conflicting evidence,
“adequately explain[edj 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)). If the AU fails to properly indicate why evidence was discredited or rejected, the
Court cannot determine whether the evidence was discredited or simply ignored. See Burnett v.
Comm ‘r of Soc. Sec. 220 F.3d 112, 121 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 705
(3dCir. 1981)).
III.
APPLICABLE LAW
A.
The Five-Step Process for Evaluating Whether a Claimant Has a Disability
A claimant’s eligibility for benefits is governed by 42 U.S.C.
§ 1382. Pursuant to the Act,
a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C.
§
1382(a)(1)(A)-(B) and demonstrates that he is disabled based on an “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.
§ 423(d)(1)(A). A person is disabled
only if his physical or mental impairment(s) 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 work which exists in the national economy.” 42 U.S.C.
6
§ 423(d)(2)(A).
To determine whether the claimant is disabled, the Commissioner performs a five-step
sequential evaluation. 20 C.F.R.
§ 4 16.920. The claimant bears the burden of establishing the
first two requirements. The claimant must establish that he (1) has not engaged in “substantial
gainful activity” and (2) is afflicted with “a severe medically determinable physical or mental
impairment.” 20 C.F.R.
§ 416.920(a)(4)(i)-(ii). If a claimant fails to demonstrate either of these
two requirements, DIBs are denied and the inquiry ends. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). If the claimant successfully proves the first two requirements, the inquiry proceeds to step
three which requires the claimant to demonstrate that his impairment meets or medically equals
one of the impairments listed in 20 C.F.R. Part 404 Appendix 1. 20 C.F.R.
§ 416.920(a)(4)(iii).
If the claimant demonstrates that his impairment meets or equals one of the listed impairments, he
is presumed to be disabled and therefore, automatically entitled to DIBs. Id. If he cannot make
the required demonstration, further examination is required.
The fourth step of the analysis asks whether the claimant’s residual functional capacity
(“RFC”) permits him to resume his previous employment. 20 C.F.R.
§ 416.920(a)(4)(iv). If a
claimant is able to return to his previous employment, he is not disabled within the meaning of the
Act and is not entitled to DIBs. Id. If the claimant is unable to return to his previous employment,
the analysis proceeds to step five. At this step, the burden shifts to the Commissioner to
demonstrate that the claimant can perform a job that exists in the national economy based on the
claimant’s RFC, age, education, and past work experience. 20 C.F.R.
§ 416.920(g). If the
Commissioner cannot satisfy this burden, the claimant is entitled to DIBs. Yuckert, 482 U.S. at
146 n.2.
B.
The Requirement of Objective Evidence
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Under the Act, disability must be established by objective medical evidence.
“An
individual shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the [Commissioner] may require.”
42 U.S.C.
§
423(d)(5)(A). Notably, “[a]n individual’s statement as to pain or other symptoms shall not alone
be conclusive evidence of disability as defined in this section.” Id. Specifically, a finding that one
is disabled requires:
[M]edical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to be
furnished under this paragraph. would lead to a conclusion that
the individual is under a disability.
.
Id.; see 42 U.S.C.
.
§ 1382c(a)(3)(A). Credibility is a significant factor. When examining the
record: “The adjudicator must evaluate the intensity, persistence, and limiting effects of the
[claimant’s] symptoms to determine the extent to which the symptoms limit the individual’s ability
to do basic work-related activities.” SSR 96-7p, 1996 WL 374186 (July 2, 1996). To do this, the
adjudicator must determine the credibility of the individual’s statements based on consideration of
the entire case record. Id. The requirement for a finding of credibility is found in 20 C.F.R.
416.929(c)(4).
§
A claimant’s symptoms, then, may be discredited “unless medical signs or
laboratory findings show that a medically determinable impairment(s) is present.” 20 C.F.R.
§
416.929(b); see also Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
The list of “acceptable medical sources to establish whether [a claimant] has a medically
determinable impairment” includes licensed physicians, but does not include nurses. 20 C.F.R.
§
404.1513(a). Though the AU “may also use evidence from other sources to show the severity
of
[a claimant’s] impairments,” this evidence is “entitled to consideration as additional evidence” and
8
does not need to be given the same weight as evidence from acceptable medical sources. 20 C.F.R
§ 404. 1513(d)(1); Hatton v. Comm ‘r ofSoc. Sec., 131 Fed. App’x 877, 878 (3d Cir. 2005). Factors
to consider in determining how to weigh evidence from medical sources include (1) the examining
relationship, (2) the treatment relationship, including the length, frequency, nature, and extent of
the treatment, (3) the supportability of the opinion, (4) its consistency with the record as a whole,
and (5) the specialization of the individual giving the opinion. 20 C.F.R.
IV.
§ 404.1527(c).
DISCUSSION
A. Summary of AU Dunn’s Decision
On August 22, 2013, AU Dunn issued a decision finding that Plaintiff was not disabled
under sections 216(i) and 223(d) of the Social Security Act. (R. 13-22.) AU Dunn also denied
Plaintiffs SSI application on the basis that Plaintiff was not disabled under section 1613(a)(3)(A)
of the Social Security Act. (Id.) At step one, AU Dunn found that Plaintiff had engaged in
substantial gainful activity in 2009, but declined to make a determination for 2010, as Plaintiff was
“unable to provide specific months she worked.” (Id. 15.) AU Dunn did find that, despite this
previous work activity, there had been a continuous twelve-month period where Plaintiff had not
engaged in substantial gainful activity, thereby satisfying step one. (Id. 16.) At step two, AU
Dunn found that Plaintiff suffered from “mood disorder, learning disorder, borderline intelligence,
post-traumatic stress disorder, migraine headaches, panic disorder, cervical and lumbosacral
degenerative disc disease, diverticulosis, cholelithiasis and [aj history of asthma.” (Id. 16 (citing
Exhibits 2F (University Behavioral Outpatient Hospital Records 6/3/2011 to 2/10/12), 4F (Dr.
Pankaj Shirolawala Treatment Records 10/14/2009 to 3/26/2012), 8F (University Behavioral
Outpatient Hospital Records 10/26/12 to 5/24/2013).) At step three, however, the AU found that
these impairments do not meet or medically equal in severity any of the clinical criteria for the
9
Listed Impairments. (R. 16 (citing to Plaintiff’s medical records of her treating physicians).) AU
Dunn determined that Plaintiff had the RFC to perform “light work.” (Id. 17.) But, AU Dunn
also found that this RFC was “limited to standing/walking up to 4 hours in an 8 hour workday;
occasionally climb, kneel or crouch; frequently balance or stoop; no crawling; no working around
temperature extremes; and the claimant is limited to simple, routine work; and occasional public
and co-worker contact.” (Id. 17.) At step four, thus, AU Dunn determined that Plaintiff was
unable to perform her past work, which was semi-skilled and medium to heavy in exertional level.
(Id. 20) At step five, AU Dunn determined that there were a significant number of jobs in the
national economy wherein the Plaintiff could work, despite her limitations. (Id. 21.) Therefore,
AU Dunn concluded that Plaintiff was not disabled as defined in the Social Security Act, and was
not eligible for Disability Insurance Benefits as well as supplemental security income. (Id. 22.)
B. Analysis
Plaintiff’s briefing does not clearly identify the basis for her arguments as her headings do
not appear to be consistent with the underlying analysis. Her “Argument” appears to be that AU
Dunn erred at step three by determining that her impairments either singularly or in combination
“preclude[sj her from engaging in substantial gainful activity.” (Pl.’s Br. at 10.) AU
Dunn,
however, engaged in a detailed step three analysis including identifying the sections to which
she
compared Plaintiff’s impairments and an analysis of the severity of Plaintiff’s various impair
ments
by reference to Plaintiff’s treating physician medical records and Plaintiff’s functional reports
. (R.
16-17.) Plaintiff on the other hand only makes general arguments about the medical eviden
ce and
does not provide any specific arguments for how AU Dunn’s step three analysis was
deficient.
There is no reference to the sections that AU Dunn used for comparison, or how they
were not
10
appropriate or were not appropriately compared. Instead, Plaintiff attacks various individual
findings of the AU. The Court, thus, has addressed Plaintiff’s specific arguments.
Plaintiff argues that the AU improperly evaluated the medical evidence and gave an
incomplete hypothetical to the vocational expert (a step five issue). (Pl.’s Br. at 11, 18.) When
read as a whole, although not clear, it appears that all of Plaintiff’s arguments are aimed at the
AU ‘s findings that Plaintiff can perform “light work” with limitations. Plaintiff argues that the
limitations as defined did not fully capture her impairments. Specifically, Plaintiff argues: (1) that
AU Dunn “failed to give proper credence to the [subjective] complaints of Ms. Rivera concerning
her pain, physical limitations of motion and function, fatigue, asthma, migraine headaches and
mental impairments, including, depression, anxiety, suicidal and violent ideations, learning
disabilities, ADHD, PTSD and functional illiteracy” (id. at 11); (2) that the AU made findings
that were contrary to the medical evidence, in particular regarding Plaintiff’s intelligence and panic
disorder (id. at 12-13); (3) that the AU improperly failed to order a neuropsychological evaluation
(id. at 13-14); (4) “[t]he only medical and/or physical assessments contained in the record were
those of the Administrative Law Judge which does not fulfill the AU’s duty” (id. at 14); and (5)
the AU was obligated—but did not-”investigate the claimant’s mental impairments” (id.). Finally,
Plaintiff argues that had her limitations been accurately assessed, and the AU relied on the
testimony of the vocational expert related to what Plaintiff views as the appropriate hypothetical,
Plaintiff would have been determined to be disabled. (Id. at 18-20.) Because the issue of what
the
AU relied on is core to all of these arguments, the Court will address number four above
first, and
the rest in turn.
1. The AU substituted speculative assessments of Plaintiff’s condition above Plaintiff’s
treating physicians (Argument 4).
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Plaintiff argues that AU Dunn substituted her own view of the records over the medical
judgments of Plaintiff’s treating physicians. (See, e.g., Id. at 14.) The Court disagrees. As AU
Dunn made clear, in this case “there are no treating physician assessments.” (R. at 20 (emph
asis
added).) There are, however, numerous medical records from Plaintiffs treating physic
ians,
which were reviewed by AU Dunn. (See R. 15-20, 262-445.) Although state agency medical
experts did not examine Plaintiff, they reviewed Plaintiff’s medical records and made assessm
ents
based on that review. (Id. 20.) AU Dunn stated that she placed “[g]reat weight” on these medica
l
expert assessments. (Id.) And in fact, AU Dunn’s RFC finding was based on the findings of these
consultants. (See Id. 66-70, 78-8279-82, 90-92, 100-102.) Thus, contrary to Plaintiff’s framin
g,
AU Dunn did not make up the RFC limitations out of whole cloth. AU Dunn analyzed the
medical records and Plaintiff’s subjective testimony in light of the assessments. (Id. 20.) AU
Dunn found that the objective medical evidence was consistent with the state medical consul
tant
assessments. Plaintiff, on the other hand, does not point to any opinion of her treating physic
ians
that is in conflict with this determination. Instead, she takes snippets from various medica
l
reports—often of her own subjective reporting and often from one record without acknow
ledging
conflicting statements in other records at different treatment times—and argues that the AU
did
not fully credit her complaints.
For these reasons, the Court rejects Plaintiff’s arguments as a broad proposition. The
Court, however, does find that the AU failed to adequately explain the basis for certain statem
ents
or explain certain inconsistencies. For this reason, as more fully described below, the Court
will
remand the matter for a more thorough explanation of certain aspects of the decision.
2. AU’ s failure to fully credit Plaintiff’s subjective complaints and certain alleged
ly
inconsistent findings (Arguments 1 and 2).
12
An AU is not required to accept Plaintiff’s testimony without question. The AU has
discretion to evaluate Plaintiff’s credibility and render an independent judgment in light of the
medical findings and other evidence regarding the true extent of her alleged symptoms. However,
particularly with respect to mental impairments, “an AU may not make speculative inferences
from medical reports.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
The Court disagrees with Plaintiff, however, that AU Dunn failed to appropriately
consider Plaintiff’s subjective complaints in light of the medical evidence. As noted above,
Plaintiff’s arguments are primarily scattershot citation to various comments in the records taken
out of context and without recognition of the extended period of time covered by the records.
Plaintiff’s arguments also place undue emphasis on Plaintiff’s subjective complaints without
explaining inconsistent medical notes. For example, an isolated statement made in an early 2011
report is viewed differently in the context of the records as a whole or in light of subsequent
differing reports.
AU Dunn acknowledged and analyzed Plaintiff’s subjective complaints in light of the
medical evidence.
However, AU Dunn made some statements in the decision that—while
consistent with the RFC finding of the state agency consultants—are inconsistent with
aspects of
the medical records. Although AU Dunn may have accounted for the items,
because of the
inadequate reference and/or explanation, the Court finds that the potential contradiction
s need
further explanation.
13
AU Dunn found:
[Tihe undersigned finds that claimant’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in this decision.
(R. 18.) However, the Disability Determination Explanations contain the following questio
n and
answer:
Q: Are the individual’s statements about the intensity, persistence, and functionally
limiting effects of the symptoms substantiated by the objective medical evidence?
A: Yes.
(See, e.g., id. 66.) This statement is in the same reports wherein the state consultants opined
on
Plaintiff’s RFC and limitations, which AU Dunn accorded great weight. Thus, there may
be an
explanation for the apparent inconsistency, and/or the inconsistency may be a distinction
without
a difference as to the RFC conclusion. But, without further explanation, the finding by
AU Dunn
and the assessments do not appear consistent on this point.
Plaintiff also takes issue with the AU’s finding that “there is no diagnosis of a panic
disorder.” (Id. 19.) At least some medical records include a diagnosis of “panic disord
er with
agoraphobia.” (See, e.g. Id. 267.) And, as noted above, at step two AU Dunn listed panic
disorder
as a severe impairment of Plaintiff’s. (See Id. 16.) Thus, it appears that AU Dunn
may have
factored in panic disorder and/or attacks into her analysis, but given the conflic
ting statements,
additional explanation is required.
Similarly, Plaintiff takes issue with AU Dunn’s finding that “[tihere is no eviden
ce of sub
average intelligence.”
(See id. 19.) Various medical records indicate that Plaintiff has below
average intellectual functioning. (See, e.g., Id. at 390-397.) On the other hand,
Plaintiffpreviously
performed semi-skilled work—a level of work higher than that used by ALl
Dunn. (Id. 17, 20.)
Again, this may be a distinction without a difference as the state consultant analys
is addressed the
14
level of functioning and ability to understand simple tasks (along with Plaintiff’s self-reported
functioning), and AU Dunn used an RFC for only simple work. However, this statement by AU
Dunn requires further explanation.
3. The AU’s failure to order a neuropsychological evaluation or otherwise investigate
Plaintiff’s mental impairments (Arguments 3 and 5).
Plaintiff argues that “[t]he record will show that University behavioral Healthcare’ s record
s
contained a statement that Samary is functioning at a very low intellectual level and needs
to be
assess in a neuropsychological evaluation.” (Pl.’s Br. at 13 (citing R. 265).) The medica
l record
at page 265 of the Record is from an “Initial Evaluation” and actually states: “Refer
ral for
neuropsychological testing if cognitive deficits continue to impair patient’s functioning.”
(R. 265
(emphasis added).) Although Plaintiff overstates this “recommendation,” and does not provid
e
analysis from the medical records as a whole, the Court also finds that AU Dunn should
have
addressed Plaintiff’s request for additional testing (see id. 8) and provided an explanation
for why
no such additional information was necessary in the circumstances of this case.
4. The AU’s reliance on an improper hypothetical.
A vocational expert (“yE”), Rocco Meola, also testified at the July 1, 2013 hearing
. The
Mr. Meola testified that, given Plaintiff’s RFC including limitations, Plaintiff could
perform
occupations such as document prep worker and scale operator, and that such
jobs existed in
sufficient number in the national economy. (R. 5 8-59.) Plaintiff argues that the AU
relied on an
incomplete hypothetical because this opinion on which she relied did not factor
in all of Plaintiff’s
limitations. (Pl.’s Br. at 18-19.) In particular, when Mr. Meola was asked
by Plaintiff’s counsel
if Plaintiff could perform the jobs identified by him if he also included a limitat
ion of “being off
task for 20 percent of the work day,” he testified that such limitation would preclud
e Plaintiffbeing
able to perform any job in the competitive job market. (Id. 59.) Plaintiff argues
that the AU’s
15
decision to ignore this testimony or to provide an explanation for failing to credit
it was error.
Plaintiff cites to no opinion evidence in the record indicating that such a limitat
ion was appropriate
in this case, and it appears to be based on Plaintiffs subjective complaints. Howev
er, the Court
also agrees that AU Dunn did not address this issue or adequately explain why
she did not credit
this testimony and/or find it to be an appropriate hypothetical.
V.
CONCLUSION
For the foregoing reasons, the matter is remanded for further consideration
by the AU in
accordance with this Opinion. An appropriate order follows this Opinion.
DATED: December, 2015
L. LINARES
U.S. DISTRICT JUDGE
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