WOHL v. COMMISSIONER OF SOCIAL SECURITY

Filing 21

OPINION. Signed by Judge Claire C. Cecchi on 04/05/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
DEBORAH WORL o/b/o STEVEN WOHL,

Civil Action No.: 2:15-cvO2478 (CCC)

Plaintiff,
OPINION
V.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
CECCHI, District Judge.
I.

INTRODUCTION
Before the Court is Deborah Wohl’s (“Plaintiff’) appeal seeking review of a final

determination by the Commissioner of the Social Security Administration (“Commissioner”)
denying Steven Wohi’s application for disability benefits (“DIB”) under

§ 216(i) and 223(d) of

the Social Security Act (“SSA”). The issue to be decided is whether the Commissioner’s denial
of benefits is supported by substantial evidence. For the reasons set forth below, the decision of
the Administrative Law Judge (“AU”) is affirmed in part, vacated in part, and the matter is
remanded for further proceedings consistent with this Opinion.
II.

BACKGROUND
A.

Procedural Background

Plaintiff brings this claim on behalf of her deceased husband, Steven Wohi. (Tr.’ at 2).
Mr. Wohl applied for DIB on February 27, 2012, alleging disability as of on August 20, 2005. (Id.

“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 5).

at 225). He later amended the alleged onset date to January 1, 2008.

( at 222). Mr. Wohi’s

DIB claim was denied initially on June 11. 2012, and upon reconsideration on November 23, 2012.
(Id. at 22). On November 14, 2013, a hearing was held before AU Michal L. Lissek. (Id. at 4060). A supplemental hearing was held on March 5, 2014. (Id. at 61-83). AU Lissek issued a
decision on April 30, 2014 finding Mr. Wohl was not disabled as defined by the SSA at any time
from January 1, 2008, the alleged onset date, through December 31, 2008, the date Mr. Wohi was
last insured. (Id. at 33).
On June 25, 2014, Mr. Wohl requested review of the AU’s decision. (Id. at 364-73). Mr.
Wohi died on October 31, 2014. (ECF No. 1). In a notice dated February 10, 2015, the Appeals
Council denied the request for review. (Id.) On April 7, 2015, Plaintiff instituted this action. (Id.)
B.

Factual Background

Mr. Wohi was born May 1, 1951. (Id. at 196). He completed two years of college and
worked primarily as a technology/software marketer and manager. (Id. at 45-48, 231). Mr. Wohi
alleged disability due to hepatitis C, cirrhosis and other severe liver disease, polyneuropathy
caused by medical treatment, memory and cognitive loss, confusion and poor focus, arthritis joint
and back pain, pulmonary disorder with shortness of breath, extreme fatigue, depression, and brain
dysfunction. (Id. at 230).
Thomas Amrick, M.D., treated Mr. Wohl for his chronic hepatitis C infection from
February 2001 through September 2012. (Id. at 609-729). From May 7, 2001 through December
2005, Mr. Wohl’s hepatitis C infection was treated with Interferon Alfa, Ribavirin, Rebetron, and
Pegasys injections, which were ineffective in improving the hepatitis C infection. (j at 634-56).
Plaintiff contends that this treatment, specifically the Ribavirin. produced adverse side effects
including fatigue and impaired concentration. (Plaintiffs Brief (“P1. Br.”), ECF No. 15 at 3 n.4;

2

Plaintiffs Reply Brief (“P1. R.”) ECF No. 20 at 2-3). Dr. Amrick’s notes from this period reference
Mr. Wohi’s complaints of fatigue, mood swings, and irritability. (Tr. at 635-38, 649, 655, 685).
On October 24, 2013, Dr. Amrick completed a Liver Disease RFC Questionnaire. (Id. at
741-45). In the Questionnaire, Dr. Amrick indicated Mr. Wohi suffered from fatigue, general
malaise,

difficulty

walking,

muscle

weakness,

loss

of manual

dexterity,

difficulty

thinking/concentrating, psychological problems, abdominal pain, and chronic skin infections. (Id.
at 741). Dr. Amrick stated he believed Mr. Wohi “frequently” experienced symptoms severe
enough to interfere with attention and concentration. (i at 742).
In September 2013, Mr. WohI underwent a neuropsychological examination with Jonathan
Slyker. Ph.D. (j at 737-40). Dr. Slyker found Mr. Wohl’s test results revealed “deficits in
working memory, response inhibition, and nonverbal reasoning compared to likely functioning
prior to medical illness.” (Id. at 740). Additionally, Dr. Slyker found that Mr. Wohl’s complaints
of “intense neuropsychiatric symptoms immediately on initiation of antiviral treatment in 2001”
were “quite typical.” (Id.) He opined that Mr. Wohl’s cognitive examination was “probably
representative of his cognitive functioning dating back to the beginning of his [hepatitis C]
treatment in 2001.” (Id.)
During the supplemental hearing before the AU on March 5, 2014, Dr. Martin A. Fechner
appeared as a medical expert. After reviewing the administrative record, Dr. Fechner testified that
he did not believe Mr. Wohl’s hepatitis C treatment was responsible for any diminished cognitive
functioning. (Id. at 71-72). Dr. Fechner further stated that he did not believe Dr. Slyker, who first
saw Mr. Wohl in 2013, could give a valid opinion of Mr. Wohl’ s cognitive functioning prior to his
date last insured in 2008. (Id. at 72).

3

Mr. Wohi’s wife, Deborah Wohi, testified at the November 13, 2014 hearing regarding Mr.
Wohi’s mental impairments. (Id. at 5 7-60). She also submitted written testimony to the Social
Security Administration on April 23, 2012. (Id. at 246-53). Additionally, the record contains
written testimony regarding Mr. Wohi’s alleged cognitive impairments from Mr. Wohi’s son,
Jonathan Wohl, his daughter, Larissa Wohi, and a former co-worker, Samuel Platt. (Id. at 26$72). The lay testimony addressed Mr. WohI’s allegations of debilitating fatigue as well as memory
and concentration issues. (Id.)
III.

LEGAL STANDARD
A.

Standard of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§

405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its] own
factual determinations,” but must give deference to the administrative findings.
Comm’r Soc. Sec., 667 f.3d 356, 359 (3d Cir. 201 1); see also 42 U.S.C.

§

Chandler v.

405(g). Nevertheless,

the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 f.2d 772, 776 (3d Cir.
1978) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
f.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential

4

standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
B.

Determining Disability

Pursuant to the SSA, in order to be eligible for benefits, a Plaintiff must show that he is
disabled by demonstrating 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)(l)(A), 1382c(a)(3)(A). Taking into account the Plaintiffs age,

education, and work experience, disability will be evaluated by the Plaintiffs ability to engage in
his previous work or any other form of substantial gainful activity existing in the national economy.
42 U.S.C.

§ 423(d)(2)(A), 13$2c(a)(3)(B). A person is disabled for these purposes only if his

physical or mental 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.

.

.

.“

42 U.S.C.

§ 13$2c(a)(3)(B).

Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.

§sS 423(d)(3), 1322(a)(3)(D).

5

C.

Sequential Evaluation Process

The SSA follows a five-step sequential evaluation to determine whether a Plaintiff is
disabled within the meaning of the statute. 20 C.F.R. §S 404.1520, 416.920. First, the AU must
determine whether the Plaintiff is currently engaged in gainful activity. Sykes, 22$ F.3d at 262.
Second, if he is not, the AU determines whether the Plaintiff has a severe impairment that limits
his ability to work. Id. Third, if he has such an impairment, the AU considers the medical
evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “Listings”). If it is, this results in a presumption of disability. j4 If the impairment is not
in the Listings, the AU must determine how much residual functional capacity (“RFC”) the
applicant retains in spite of his impairment. Id. at 263. Fourth, the AU must consider whether
the Plaintiffs RFC is enough to perform his past relevant work. Id. Fifth, if his RFC is not enough,
the AU must determine whether there is other work in the national economy that the Plaintiff can
perform.

Ich

The evaluation will continue through each step unless it can be determined at any point
that the Plaintiff is or is not disabled. 20 C.F.R.

§ 404.1520(a)(4), 416.920(a)(4). The Plaintiff

bears the burden of proof at steps one, two, and four, upon which the burden shifts to the
Commissioner at step five. Sykes, 22$ F.3d at 263. Neither party bears the burden at step three.
Id. at 262 n.2.

IV.

DISCUSSION
A.

Summary of the AU’s Findings

At step one, the AU found that Mr. Wohl last met the insured status requirements of the
S$A and had not engaged in substantial gainful activity from the alleged onset date of January 1,
2002 through his date last insured, December 31, 200$. (Id.) At steps two and three, the AU

6

found Mr. Wohl’s impairments of severe hepatitis C, liver cirrhosis, obesity, and depression were
“severe,” but not severe enough to meet, either individually or in combination, any of the
impairments listed in 20 C.F.R.

§ 4014, Subpart P, Appendix 1. (Id. at 24). The ALl found Mr.

Wohi’s other alleged impairments, including sleep apnea, Bell’s Palsy, cognitive impairments,
neuropathy, chest pain, and ankle pain and swelling were nonsevere. (Id. at 25-26).
The AU concluded Mr. Wohi had the RFC to perform sedentary work as defined under 20
CFR

§ 404.1567(a), meaning Mr. Wohl could “only stand and walk for two hours and sit for six

hours in an eight-hour workday. [Mr. Wohi] requires breaks from sitting for one to two minutes
every hour. Further he can only occasionally crouch, bend, and climb stairs. He cannot work
around heights, climb ladders or scaffolds, or crawl.” (Id. at 28). The AU also stated that “based
on fatigue and depression symptoms,” Mr. Wohl was limited to semi-skilled work. (Id.)
To make this conclusion, the AU considered all of Mr. Wohl’s symptoms and their
consistency with the evidence.

( at 29). The AU found Mr. Wohl’s statements of intensity,

persistence and limiting effects of his impairments were not entirely credible because they were
not supported by the medical evidence as a whole. (Id.) Specifically, the AU concluded that,
although the hepatitis C treatment “could reasonably be expected to cause the alleged symptoms,”
including difficulty “remembering and completing tasks, concentrating, and following
instructions,” (id. at 29), the record did not support Mr. Wohl’s allegations of disabling
psychological symptoms and limitations.

( at 30). Moreover, the AU found Mr. Wohl’s

subjective complaints inconsistent with Mr. Wohi’s daily activities and his noncompliance with
treatment. (Id. at 29). The AU did not appear to consider lay witness testimony in determining
Mr. Wohi’s RFC.
At step four, the AU found Mr. Wohl was incapable of performing past relevant work as

7

a personal recruiter and a sales manager. (Id. at 3 1). At step five, the AU found there were jobs
in significant numbers in the national economy that Plaintiff could perform. (Id. at 32). The AU
identified these jobs as: telephone solicitor, information clerk, emergency dispatcher, and charge
account clerk. (Id.)
B.

Analysis

Plaintiff makes the following arguments in support of her contention that the AU’s
decision should be reversed: (1) the state agency failed to have the case reviewed by a psychologist
or psychiatrist; (2) the AU’s decision that Mr. Wohl did not have a medically determinable
cognitive impairment was in error; (3) the AU failed to properly evaluate Mr. Wohi’s subjective
complaints of severe fatigue; and (4) substantial evidence did not support the AU’s finding that
there was other work in the national economy that Mr. Wohi could have performed. (P1. Br. at 1).
The Court addresses each of these arguments in turn.
1. The AU Failed to Obtain the Opinion of a Qualified Psychologist

The SSA requires that “in any case where there is evidence which indicates the existence
of a mental impairment,” the Commissioner must make “every reasonable effort to ensure” that “a
qualified psychiatrist or psychologist has completed the medical portion of the case review and
any applicable residual functional capacity assessment.” 42 U.S.C.

§ 421(h). Plaintiff contends

the Commissioner failed to obtain the opinion of a qualified psychiatrist or psychologist to evaluate
Mr. WohI’s allegations of mental impairments, and therefore the AUJ’s decision failed to comply
with the SSA. (P1. Br. at 14). To support this contention, Plaintiff cites to the AUJ’s decision
which states that “the case was only reviewed by single decision makers.” (Id.; Tr. at 31).
Despite Plaintiffs contention and the AUJ’s statement, the record appears to indicate that
in addition to two doctors specializing in internal medicine, two state agency psychologists also

8

reviewed Mr. Wohi’s medical evidence at the initial stage and upon reconsideration, in compliance
with the SSA. On June 6, 2012, Herman Huber, Ph.D., a state agency psychologist, initially
determined that after considering Listing 12.02, there was insufficient evidence to substantiate the
presence of a disorder that met listing criteria. (Tr. at 84-90). Additionally, on October 15, 2012,
during reconsideration of the claim, Brady Dalton, Ph.D., another state agency psychologist,
reviewed Mr. Wohi’s file, and after considering Listings 12.02 and 12.04, found there was
insufficient evidence to determine that Mr. Wohl’s symptoms met listing criteria. (Id. at 94-102).
However, despite the record, the AU failed to address the psychologists’ evaluations.
Thus, the Court cannot provide meaningful review of the AU’s consideration of this evidence.
On remand, the AU

should obtain and review the opinion of a qualified psychiatrist or

psychologist and provide a discussion of such evidence.
2. The AU Failed to Properly Evaluate Lay Evidence

At step two, the AU found that the record did not contain sufficient evidence from an
acceptable medical source to establish the existence of a medically determinable cognitive
impairment prior to the date last insured. (Tr. at 25).

Plaintiff argues that AU failed to comply

with Social Security Ruling (“SSR”) 83-20 because the AU required contemporaneous medical
evidence, did not credit Dr. Slyker’s opinion, and did not address evidence from lay witnesses.
(Id. at 16-20).
As a preliminary matter, Plaintiffs reliance on SSR 83-20 is misguided. “The purpose of
SSR 83—20, is to ‘describe the relevant evidence to be considered when establishing the onset
date of disability,’ not whether disability exists.” Zirnsak v. Colvin, 777 F.3d 607, 613 (3d Cir.
2014) (citing SSR 83—20, 1983 WL 31249, at *1(1983) (emphasis added)).

9

Whereas here,

Plaintiff argues the AU should have found the existence of a severe impairment, rather than a
different onset date, SSR 83-20 is inapposite.2
Further, the AU did not err in giving little weight to Dr. $lyker’s opinion. “In evaluating
medical reports, the AU is free to choose the medical opinion of one doctor over that of another.”
Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505 (3d Cir. 2009) (citing Cotter v. Harris, 642 F.2d
700, 705 (3d Cir. 1981)). Under the substantial evidence standard of review, the issue is whether
sufficient evidence reasonably supports the AU’s analysis. See Logan v. Colvin, No. 14-4571,
2015 WU 5722391, at *7 (D.N.J. Sept. 29, 2015) (“The role of the District Court in reviewing an
AU’s denial of disability benefits is not to reweigh the evidence presented, but instead to
determine whether the AU made a decision supported by substantial evidence”). Here, the AU
gave “great weight” to Dr. Fechner’s opinion that Plaintiffs impairments “could not reasonably
be expected to cause the sort of severe mental symptoms” Plaintiff described, rather than to Dr.
Slyker’s opinion that Plaintiff had deficits in working memory and nonverbal reasoning. (Tr. at
25). The AU supported her decision, noting: (1) Dr. Fechner had the opportunity to review the
entirety of the medical record, (2) he was able to justify his findings based on analysis of Mr.
WohI’s blood work, and (3) his opinion was consistent with examinations where Mr. Wohl
reported improvement in his symptoms. (j at 31). Conversely, the AU discredited Dr. Slyker’s
report because it “occurred four and a half years after the date last insured.”

2

(4. at 25).

Even under the framework of SSR 83-20, the AU’s decision was supported by substantial
evidence. The Ruling provides that “How long [a] disease may be determined to have existed at
a disabling level of severity depends on an informed judgment of the facts in the particular case.
This judgment, however, must have a legitimate medical basis. At the hearing, the administrative
law judge (AU,) should call on the services of a medical advisor when onset must be inferred.”
SSR 83-20, 1983 WL 31249, at *3 (emphasis added). In this case, the AU called on Dr. fechner,
an impartial medical expert, to assist the AU in assessing Plaintiffs medical record. Therefore,
even under the framework of 83-20, the AU’s decision was supported by substantial evidence.
10

Accordingly, substantial evidence supported the AU’s decision to attribute great weight to Dr.
fechner’s opinion and little weight to Dr. Slyker’s retrospective opinion.
However, while an AU is free to weigh the credibility of the evidence before her, “[s]he
must give some indication of the evidence that [s]he rejects and [her] reason(s) for discounting
that evidence.” fargnoli v. Massanari 247 f.3d 34, 43 (3d Cir. 2001). In this case, Plaintiff offered
lay evidence from Mr. Wohi’s family and former co-worker regarding Plaintifrs cognitive
impairments. (P1. Br. at 20). In Burnett v. Commissioner of Social Security, the Third Circuit
held that the AU erred by not addressing the testimony of lay witnesses at all. 220 F.3d 112, 122
(3d Cir. 2000) (“Similar to the medical reports, the AU must also consider and weigh all of the
non-medical evidence before him.”) (citing Van Horn v. $chweiker, 717 F.2d $71, $73 (3d Cir.
19$3)). Here, the AU did not analyze or explain her consideration of the lay evidence provided
by Plaintiff, and thus the Court cannot provide meaningful review of the AU’s consideration of
this evidence. On remand, the AU should evaluate the credibility of and the weight given to the
lay evidence offered by Plaintiff. See Del Valle v. Comm’r of Soc. Sec., No. 12-7930 RMB, 2014
WL 546111, at * 10 (D.N.J. Feb. 10, 2014) (remanding for the AU’s failure to assess lay witness
testimony).
3. The AU’s Evaluation of Mr. Wohi’s Subjective Complaints was Supported
by Substantial Evidence

Plaintiff alleges that the AU failed to properly evaluate Mr. Wohi’s subjective complaints
of severe fatigue. When determining a claimant’s RFC, the AU must consider the claimant’s
subjective complaints and the extent to which such subjective symptoms can reasonably be
accepted as consistent with the objective medical and other evidence. 20 C.F.R. §sS 404.1529(a),
4 16.929(1). The AU “must give serious consideration to a claimant’s subjective complaints of
pain, even where those complaints are not supported by objective evidence.” Mason v. Shalala,
11

994 f.2d 1058, 1067 (3d Cir. 1993). However, in making such credibility determinations, the AU
is given great discretion, and his findings are entitled to judicial deference.

$ Metz v. fed. Mine

Safety & Health Review Comm’n, 532 F. App’x 309, 312 (3d Cir. 2013) (“Overturning an AU’s
credibility determination is an ‘extraordinary step,’ as credibility determinations are entitled to a
great deal of deference.”).
This Court finds the AU’s evaluation of the Plaintiffs subjective complaints was
supported by substantial evidence.

The AU

considered Mr. Wohl’s testimony at the

administrative hearing, and limited Plaintiffs RFC to semi-skilled work based upon Plaintiffs
subjective complaints of fatigue. (Tr. at 29-3 0). However, the AU also found that the description
of the severity of Mr. Wohl’s pain was not completely consistent with his daily activities and
noncompliance with recommended treatment. (Id. at 29). The Regulations provide that an AU
may use “any kind of medical or nonmedical evidence” in order to “satisfy the substantial evidence
test, including the extent of Mr. Wohl’s daily activities. See SSR 96-2p; 20 C.F.R.

§

404.1529(c)(3)(i), 41 6.929 (c)(3)(i) (providing the extent of a plaintiffs daily activities is a factor
relevant to determining a plaintiffs symptoms). Moreover, “an AU may consider a claimant less
credible if the individual fails to follow the prescribed treatment plan without good reason.” Vega
v. Comm’r of Soc. Sec., 358 F. App’x 372, 375 (3d Cir. 2009) (citing SSR 96—7p). As the AU
used appropriate factors to evaluate Mr. Wohi’s credibility, the AU’s evaluation of Plaintiffs
credibility was supported by substantial evidence.
4. Substantial Evidence Did Not Support the AU’s Finding That There was
Other Work Mr. Wohi Could Have Performed in the National Economy

Plaintiff argues the AU’s determination that there was work available in the national
economy Mr. Wohl could have performed was not supported by substantial evidence. Specifically,
Plaintiff argues the hypothetical question the AU posed to the VIE did not account for all of Mr.
12

Wohi’s limitations. A hypothetical question posed to a VE “must reflect all of a Plaintiffs
impairments that are supported by the record; otherwise the question is deficient and the expert’s
answer to it cannot be considered substantial evidence.” Chrupcala v. 1-leckler, $29 f.2d 1269,
1276 (3d Cir. 1987). The Court finds that the hypothetical questions on which the AU relied did
not reflect all of Mr. Wohl’s impairments and cannot be considered substantial evidence.
Plaintiff contends the AU ciTed by failing to include any mention of Mr. Wohl’s “moderate
difficulties” with regard to his concentration, persistence, or pace. (P1. Br. at 26). The AU asked
the VE three questions in all. first, the AU asked the yE to assume a hypothetical person that
can perform sedentary work and:
Can walk and stand a total of two hours in an eight hour day; sit for six hours with one or
two minute stretching every hour; he can lift ten pounds occasionally, less than ten pounds
frequently; he cannot work around heights, climb ladders or scaffolding; no crawling;
occasional bending and crouching; occasional stairs. (Tr. at 80).
The VE found this hypothetical person could perform Mr. Wohl’s previous jobs. Second, the AU
added the additional limitation that based on “fatigue and depression symptoms” the hypothetical
person is limited to semi-skilled work. (Id.). The VE found that this person could not perform
Mr. WohI’s previous jobs, but that there are jobs existing in significant numbers in the national
economy that this person could perfonm (Id. at 80-82). Third, the AU asked if there would be
work for someone who was the “same as [hypothetical person] number one but based on severe
fatigue he is unable to focus more than 50 percent of an eight hour day.” (id. at 82). The VE said
that there would be no jobs in the national economy for that hypothetical person. (Id.). The AU
concluded that based upon the second hypothetical question, there were jobs existing in significant
numbers in the national economy that Plaintiff could perform. (Id. at 32).
At step two, the AU found that Plaintiff had moderate difficulties in concentration,
persistence, and pace. (Id. at 27). If there is a finding of “moderate difficulties” with regard to
13

concentration, persistence, or pace there must be some mention of these limitations in the
hypothetical question. ç Green v. Colvin, No. 14-1942, 2016 WL 1696797 at *3 (E.D. Pa. Apr.
27, 2016) (finding an AU’s RFC evaluation and hypothetical question were deficient because they
failed to incorporate the AU’s own findings that the Plaintiff had mild limitations with
concentration, persistence, or pace).

While there is no specific language that satisfies this

requirement, some mention is necessary. See, e.g., McDonald v. Astnie, 293 F. App’x. 941, 946
(3d Cir. 200$). The AU did not specifically include Mr. Wohl’s moderate difficulties with regard
to concentration, persistence, and pace in the second hypothetical question posed to the yE, upon
which he ultimately relied.3 Because the AU failed to include all of Plaintiffs credibly established
limitations in the hypothetical used to support her step-five determination, it was not supported by
substantial evidence. See Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004). Thus, on
remand, the AU must account for all of Plaintiffs recognized mental limitations in her questions
to the yE.
V.

CONCLUSION
F or the foregoing reasons, the Court affirms in part and vacates in part the AU’s decision

and remands this case for further administrative proceedings consistent with this Opinion. An
appropriate order accompanies this Opinion.

Date:

e_L

S, 2—a 7
CLAIRE C. CECCHI, U.S.D.J.

Although the third hypothetical question included limitations with regard to concentration, the
AU appears to have disregarded the VE’s answer to that hypothetical. The VE told the AU that
there would be no work in the national economy for a hypothetical person based on this question.
(Id. at $2). In concluding that Mr. WohI could perform jobs in the national economy, the AU did
not explain why she disregarded the VE’s answer to the third hypothetical.
14