CHIUCCHI v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge Esther Salas on 10/24/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTOPHER CHIUCCHI
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
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Civil Action No. 15-3460 (ES)
OPINION
SALAS, DISTRICT JUDGE
Before the Court is Plaintiff Christopher Chiucchi’s (“Plaintiff”) appeal seeking review of
Administrative Law Judge Joel H. Friedman’s (the “ALJ” or “ALJ Friedman”) decision denying
Plaintiff’s applications for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Title II and Title XVI of the Social Security Act (the “Act”). The Court
decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b). The
Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the
reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.
I. Background
A. Procedural History
Plaintiff filed applications for DIB and SSI on June 19, 2006, alleging disability as of
November 1, 2005, due to depression, attention deficit hyperactivity disorder (“ADHD”), and drug
and alcohol addiction. (D.E. No. 7, Administrative Record (“Tr.”) at 70-72). The applications
were denied initially (id. at 30-32) and on reconsideration (id. at 35-41). On September 28, 2007,
1
Plaintiff requested a hearing before an Administrative Law Judge. (Id. at 42). A hearing was held
on September 19, 2011 before ALJ Friedman. On June 1, 2009, ALJ Friedman found that Plaintiff
was not disabled because he could perform other work available in the national economy. (Id. at
252-62).
Thereafter, Plaintiff sought Appeals Council review. (Id. at 266-67). On October 8, 2010,
the Appeals Council vacated the ALJ’s decision and remanded for further consideration of
Plaintiff’s residual functional capacity (“RFC”) in light of the results of a Purdue Pegboard Exam,1
which were contained in a January 25, 2005 report from the Division of Vocational Rehabilitation
(“DVR Report”).2 Specifically, Plaintiff’s pegboard-exam results indicated that his dexterity
levels were in the first percentile, “meaning [Plaintiff] would have difficulty in jobs that require
speed and accuracy in the perceptual motor process.” (Id. at 264).
ALJ Friedman held hearings on February 8, 2011 (id. at 450-63) and April 12, 2012 (id. at
464-506). On July 25, 2012, the ALJ issued a decision in which he adjusted Plaintiff’s RFC and
limited Plaintiff to work not requiring speed or accuracy in fingering. (Id. at 14-25). Nevertheless,
the ALJ found that Plaintiff was not disabled because he could perform other work available in the
national economy. (Id. at 24). Plaintiff sought Appeals Council Review on August 25, 2012. (Id.
at 11-12). On March 24, 2015, the Appeals Council found no grounds for review, making the
The Purdue Pegboard Exam tests an individual’s dexterity for quickness and accuracy in performing tasks.
(Id. at 264).
1
2
The Division of Rehabilitation referred Plaintiff for a psychological evaluation, which was administered by
Alan S. Gordon, Ed.D., on December 22, 2004. (Id. at 243). The evaluation consisted of a Weschler Adult Intelligence
Scale-III test, a Wide Range Achievement Test-3, a Purdue Pegboard Exam, a Bender Visual Motor Gestalt Test, a
Kuder Career Search, a House-Tree-Person Projective Drawing Test, a Sentence Completion Form, and a clinical
interview. (See id.). Dr. Gordon provided a seven-page report summarizing the evaluation results and his
recommendations. (Id. at 243-49).
2
ALJ’s decision the final decision of the Commissioner of Social Security (“Commissioner”). (Id.
at 8-11).
On March 19, 2015, Plaintiff appealed the Commissioner’s decision by filing a Complaint
with this Court. (D.E. No. 1, Complaint (“Compl.”)). The parties briefed the issues raised by
Plaintiff’s appeal. (See D.E. No. 11, Brief in Support of Plaintiff (“Pl. Mov. Br.”); D.E. No. 12,
Defendant’s Brief Pursuant to Local Civil Rule 9.1 (“Def. Opp. Br.”)). The matter is now ripe for
resolution.
II. Legal Standard
A. Standard for Awarding Benefits
To be eligible for DIB or SSI under Titles II and XVI of the Act, a claimant must establish
that he or she is disabled as defined by the Act. See 42 U.S.C. §§ 423 (Title II), 1382 (Title XVI).
Additionally, a claimant seeking DIB must satisfy the insured status requirements set forth in §
423(c), and a claimant seeking SSI must fall within the income and resource limits set forth in 42
U.S.C. §§ 1382a and 1382b. An individual is deemed disabled under both titles if he or she is
“unable 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). The individual’s physical or mental impairment(s) must be “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. §§ 423(d)(2)(a), 1382c(a)(3)(B).
The Act has established a five-step sequential evaluation process to determine whether a
plaintiff is disabled. 20 C.F.R. § 404.1520(a)(4). If the determination at a particular step is
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dispositive of whether the claimant is or is not disabled, the inquiry ends.
20 C.F.R. §
404.1520(a)(4). The burden rests on the claimant to prove steps one through four. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).3 At step five, the burden shifts to the Commissioner. Id.
At step one, the claimant must demonstrate that he is not engaging in any substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful activity is defined as significant
physical or mental activities that are usually done for pay or profit. 20 C.F.R. §§ 416.972(a), (b).
If an individual engages in substantial gainful activity, he is not disabled under the regulation,
regardless of the severity of his impairment or other factors such as age, education, and work
experience. 20 C.F.R. § 404.1520(b). If the claimant demonstrates he is not engaging in
substantial gainful activity, the analysis proceeds to the second step.
At step two, the claimant must demonstrate that his medically determinable impairment or
the combination of impairments is “severe.”
20 C.F.R. § 404.1520(a)(4)(ii).
A “severe”
impairment significantly limits a plaintiff’s physical or mental ability to perform basic work
activities. 20 C.F.R. § 404.1520(c). Slight abnormalities or minimal effects on an individual’s
ability to work do not satisfy this threshold. See Leonardo v. Comm’r of Soc. Sec., No. 10-1498,
2010 WL 4747173, at *4 (D.N.J. Nov. 16, 2010).
At step three, the ALJ must assess the medical evidence and determine whether the
claimant’s impairment or combination of impairments meet or medically equal an impairment
listed in the Social Security Regulations’ “Listings of Impairments” in 20 C.F.R. § 404, Subpart
P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii). Upon a finding that the claimant meets or
medically equals a listing, the claimant is presumed to be disabled and is automatically entitled to
benefits. 20 C.F.R. § 416.920(d).
3
Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.
4
If a claimant is not found to be disabled at step three, the analysis continues to step four in
which the ALJ determines whether the claimant has the residual functional capacity (“RFC”) to
perform his past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). An RFC is defined as “the most
[a claimant] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). An ALJ
must consider all relevant evidence when determining an individual’s RFC, including medical
records, observations made during formal medical examinations, descriptions of limitations by the
claimant and others, and observations of the claimant’s limitations by others.
Fargnoli v.
Massanari, 247 F.3d 34, 41 (3d Cir. 2001). If the plaintiff lacks the RFC to perform any work he
has done in the past, the analysis proceeds.
In the final step, the burden shifts to the Commissioner to show that there is a significant
amount of other work in the national economy that the claimant can perform based on his RFC
and vocational factors. 20 C.F.R. § 404.1520(a)(4)(v).
B. Standard of Review
The Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial evidence
is more than a “mere scintilla” of evidence and “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). Although substantial evidence requires “more than a mere scintilla, it need not rise to
the level of a preponderance.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
While failure to meet the substantial evidence standard normally warrants remand, such error is
harmless where it “would have had no effect on the ALJ’s decision.” Perkins v. Barnhart, 79 F.
App’x 512, 515 (3d Cir. 2003).
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The Court is bound by the ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). Thus, this Court is limited in its review because it cannot “weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992).
III. ALJ Friedman’s Decision
ALJ Friedman applied the five-step disability evaluation process required by 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4) and determined that Plaintiff was not disabled under the Act.
(Tr. at 14-25). At step one, the ALJ found that Plaintiff met the insured status requirement of the
Act through June 20, 2003, and that Plaintiff had not engaged in any substantial gainful activity
since the alleged onset date of disability. (Id. at 20). At step two, the ALJ found that Plaintiff had
the following severe impairments: bipolar disorder, ADHD, and history of substance abuse. (Id.).
At step three, the ALJ concluded that Plaintiff did “not have an impairment or combination of
impairments that meets or medically equals the severity of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.” (Id. at 21).
At step four, the ALJ found that Plaintiff had “the residual functional capacity to perform
a full range of work at all exertional levels” and was “limited to being able to perform simple
routine low stress jobs in a low contact setting with the public and coworkers not requiring speed
and accuracy in fingering.” (Id. at 22). In his analysis, the ALJ concluded that Plaintiff’s
statements “concerning the intensity, persistence and limiting effects of [his] symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity assessment.”
(Id. at 22-23). The ALJ gave little weight to the opinion of a physician who indicated on a welfare
benefits form that Plaintiff “could not work for more than 90 days and that Plaintiff was a likely
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candidate for SSI.” (Id. at 23). Additionally, the ALJ gave some weight to the opinion of a
consultative examiner, Dr. Baharlias, “who opined that [Plaintiff] was only markedly limited in
one function, which was in carrying out of complex instructions and had moderate limitations in
other aspects of complex instructions.” (Id.). Finally, at step four, the ALJ concluded that based
on this RFC, Plaintiff was unable to perform any past relevant work. (Id.).
At step five, the ALJ determined that based on Plaintiff’s age, education, work experience,
and RFC, Plaintiff could perform jobs that exist in significant numbers in the national economy,
including cleaner/housekeeper and industrial cleaner.
(Id. at 24).
The ALJ based this
determination on the vocational expert’s testimony regarding a hypothetical individual with
Plaintiff’s vocational profile who was restricted to “low stress, 1-2 step jobs, involving no contact
with the general public and low contact with co-workers and supervisors and not requiring speed
or accuracy in fingering.” (Id.).
Notably, at the hearing, the ALJ and the vocational expert discussed at length the nature of
the limitations with respect to fingering and manual dexterity. (See id. at 490-501). Initially, the
ALJ described that the hypothetical individual “would have difficulty doing a job that requires
speed and accuracy, as far as manual dexterity—finger and manual dexterity.” (Id. at 490). The
vocational expert asked the ALJ to quantify this limitation further, noting that “if the fingering and
manual dexterity is an issue and a pretty severe issue, then there’s probably going to be no work
given the rest of the hypothetical.” (Id.). The ALJ stated that the limitation did not appear to result
from a physical impairment and clarified that the limitation pertained to pace and not to
consistency. (Id. at 491). Next, the ALJ noted that this limitation would affect the ability to
perform jobs suggested by the previous vocational expert, such as hand packer or assembler, which
required rapid use of fingers. (Id.). In response, the vocational expert repeatedly clarified that
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manual dexterity refers to the ability to use both hands. (See id. at 492-94). The ALJ indicated
that the limitation did not involve a total inability to use fingers, but that the limitation involved
difficulty with speed and accuracy in the use of fingers and difficulty in the “type of repetitive fine
motion” that a pegboard exam would asses. (Id. at 496-97). After this clarification, the vocational
expert responded to hypotheticals indicating that the hypothetical individual could perform the
jobs of cleaner/housekeeper and industrial cleaner. (Id. at 494, 497-98).
After the ALJ’s questioning of the vocational expert, Plaintiff’s counsel asked the
vocational expert if a score in the first percentile on the Purdue Pegboard Exam would help to
quantify the limitation in manual dexterity. (Id. at 500). The vocational expert testified that an
individual with that level of manual dexterity would be unable to work. (Id. at 501). Nonetheless,
the ALJ found that the evidence in the record did not support that Plaintiff had a limitation with
respect to manual dexterity as suggested by the results of the Purdue Pegboard Exam. (Id. at 2425).
Specifically, the ALJ found “that there [was] no evidence of any physical impairment that
would explain the claimant’s poor performance on a pegboard test in 2005” and rejected the
contention of Plaintiff’s counsel that Plaintiff’s ADHD could cause this poor performance or
limitation. (Id. at 24, 502). The ALJ noted that the same DVR Report indicated that Plaintiff’s
hobbies included guitar, bowling and shooting pool, and that all of these hobbies would involve
manual dexterity. (Id. at 24). In addition, the DVR Report identified Plaintiff’s interest in
“mechanical activities” and noted that “job related titles to consider would be carpenter, plumber,
welder (which [Plaintiff] had studied at Vo-Tech) or machine operator.” (Id. at 24-25). Finally,
the ALJ stated that Plaintiff “alleged no hand impairments, played varsity football and wrestling
in high school, drives a car, uses a computer, has done power washing, worked in a pizzeria, etc.,
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all of which involve at least the manual dexterity needed to do the jobs cited by the vocational
expert.” (Id. at 25). Thus, the ALJ concluded that Plaintiff could perform the jobs suggested by
the vocational expert and was capable of performing work available in the national economy,
necessitating a finding that Plaintiff was not disabled under the Act. (Id.).
IV. Discussion
On appeal, Plaintiff argues that the ALJ’s decision contains legal error and is not supported
by substantial evidence, therefore warranting reversal, or in the alternative, remand. (Pl. Mov. Br.
at 9). In particular, Plaintiff asserts the ALJ’s RFC assessment is not supported by substantial
evidence because the ALJ (1) improperly discounted the results of the Purdue Pegboard Exam
when assessing Plaintiff’s RFC (see id. 12-18), and (2) failed to accurately portray Plaintiff’s
limitations in the hypotheticals posed to the vocational expert (see id. at 18-21). In addition,
Plaintiff argues that reversal is appropriate because Plaintiff submitted his applications over ten
years ago and any further delay would contravene justice. (Id. at 21-22). The Court addresses
each argument in turn.
A. The ALJ Properly Considered and Discounted the Results of the Purdue
Pegboard Exam
Plaintiff argues that the ALJ failed to consider the results of the Purdue Pegboard Exam as
required by the Appeals Council remand order, thus rendering an RFC that was not supported by
substantial evidence. Specifically, Plaintiff contends that the Appeals Council “validated a piece
of evidence in the form of an objective test which proved that plaintiff’s manual dexterity in both
hands rendered him in the lowest possible range, 1% out of 100%.” (Pl. Mov. Br. at 12; Tr. at
320). Plaintiff further contends:
[t]here was no contradictory evidence regarding plaintiff’s capabilities at manual
dexterity and indeed none are present in the record nor recited in the decision. The
Commissioner—through its own Appeals Council—advised the ALJ that he was
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“stuck” with the uncontradicted and objectivity of this evidence and thus was duty
bound to adjust his RFC accordingly and present that reconsidered RFC to a VE.
(Pl. Mov. Br. at 13). Plaintiff argues that based on the results of the Purdue Pegboard Exam and
the absence of contradictory evidence in the record, the ALJ erred “by changing the RFC to restrict
plaintiff’s speed and accuracy only in fingering objects instead of manipulating objects.” (Id. at
14) (emphasis omitted).
While the Appeals Council remand order did instruct the ALJ to consider the results of the
Purdue Pegboard Exam, the remand order neither “validates” nor leaves the ALJ “stuck” with this
limitation to the extent that Plaintiff claims. Specifically, the order states that on remand the ALJ
will:
Give further consideration to the claimant’s maximum residual functional capacity
during the entire period at issue and provide rationale with specific references to
evidence of record in support of assessed limitations associated with the claimant’s
dexterity (Social Security Ruling 96-8p). In so doing, evaluate the nontreating
source opinion pursuant to the provisions of 20 CFR 404.1527 and 416.927 and
Social Security Rulings 96-2p and 96-5p, and explain the weight given to such
opinion evidence. As appropriate, the Administrative Law Judge may request the
nontreating source to provide additional evidence and/or further clarification of the
opinion and medical source statements about what the claimant can still do despite
the impairment. (20 CFR 404.1512 and 416.912).
(Tr. at 265). Thus, the proper inquiry on review is not whether the ALJ adopted the results of the
Purdue Pegboard Exam into the RFC, but whether the ALJ complied with 20 C.F.R. §§ 404.1527
and 416.927 and the relevant Social Security Rulings (“SSRs”) when discounting the results of the
Purdue Pegboard Exam in the RFC assessment.
Under both 20 C.F.R. §§ 404.1527 and 416.927, an ALJ considers the following factors in
deciding the weight to give to any medical opinion: (i) the examining relationship; (ii) the
treatment relationship; (iii) the supportability of the opinion; (iv) the consistency of the opinion;
(v) the specialization of the medical source; and (vi) any other factors raised by the claimant. See
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20 C.F.R. §§ 404.1527(c), 416.927(c). With respect to the treatment-relationship factor, ALJs
generally give more weight to the opinions of treating sources than to those of non-treating sources.
See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Fargnoli, 247 F.3d at 43 (noting that a treating
physician’s opinion is given “controlling weight” if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and not inconsistent with the other substantial
evidence in the record”). Here, the DVR Report is a medical report from a non-treating source
and is thus not entitled to the same weight as a report from a treating source.
Additionally, the supportability and consistency of the DVR Report is relevant. In
considering supportability, an ALJ should assess “the degree to which [the medical source]
provide[s] supporting explanations for their opinions.”
20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3). In considering consistency, an ALJ should asses the degree to which the opinion
is consistent with the record as a whole. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Similarly,
SSR 96-2p dictates that in order for a medical opinion to be given controlling weight, the opinion
must be well-supported by medically acceptable clinical and laboratory diagnostic techniques and
not be inconsistent with other evidence in the record. SSR 96-2p, 1996 WL 374188, at *1.
In addition to these regulations, the Third Circuit has made clear that an ALJ may discount
medical opinion evidence that is not supported by explanations or that is inconsistent with other
evidence in the record. See Plummer v. Apfel, 186 F.3d 422, 429-30 (3d Cir. 1999) (“An ALJ may
reject a treating physician’s opinion outright only on the basis of contradictory medical evidence,
but may afford a treating physician’s opinion more or less weight depending upon the extent to
which supporting explanations are provided.”); see also Woolfolk v. Comm’r of Soc. Sec., 89 F.
App’x 766, 768 (3d Cir. 2004) (holding that the ALJ did not err by giving less weight to a medical
opinion indicating the plaintiff was unable to work when other evidence indicated that the
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plaintiff’s pain was improving); Money v. Barnhart, 91 F. App’x 210, 213 (3d Cir. 2004) (holding
that the ALJ was not required to give controlling weight to opinions of treating physicians when
those opinions were “both internally inconsistent and inconsistent with other medical evidence”).
In contrast, an ALJ errs when discounting medical opinion evidence without articulating a
reason for doing so or when failing to address relevant evidence in the record. Fargnoli, 247 F.3d
at 41-42 (holding that the ALJ erred by including only a sparse discussion of medical evidence so
the reviewing court could not “tell if significant probative evidence was not credited or simply
ignored”); Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (holding that
the ALJ erred by failing to mention and address relevant medical and non-medical evidence that
was contradictory to the ALJ’s RFC assessment).
Most notably, the Third Circuit in Rutherford v. Barnhart specifically addressed the issue
of whether an ALJ properly discounted the results of a pegboard exam under 20 C.F.R. § 416.927.
399 F.3d 546, 554 (3d Cir. 2005). In Rutherford, the plaintiff was administered a Purdue Pegboard
Exam during a vocational examination performed by a rehabilitation consultant, and the results
“placed the [plaintiff’s] hand speed in the lowest one percentile for all norm groups.” Id. at 550.
The Third Circuit noted:
[w]hile the ALJ acknowledged those results, he declined to include lack of dexterity
as a limitation for purposes of the RFC determination because he found such a
limitation to be inconsistent with Rutherford’s testimony that she could button
buttons and work zippers. Instead the ALJ took account of the extent of
Rutherford’s dexterity by including a hypothetical question regarding an individual
capable of not more than occasional handling and fingering with the right upper
extremity.
Id. at 555. The Third Circuit held that this reasoning was sufficient for the ALJ to discount the
results of the pegboard exam under § 416.927 and to include the limitation of “not more than
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occasional handling and fingering with the right upper extremity” rather than including a limitation
of lack of manual dexterity. Id.
Based on these standards for discounting medical opinion evidence, the Court finds that
the ALJ did not err by discounting the results of the Purdue Pegboard Exam from the DVR Report.
Like the ALJ in Rutherford, ALJ Friedman cited contradictory evidence in the record when
discounting the pegboard exam results. First, the ALJ addressed the supportability of the results,
noting “that there [was] no evidence of any physical impairment that would explain the claimant’s
poor performance on a pegboard test in 2005.” (Tr. at 24). In this sense, the DVR Report lacked
“supporting explanations for [its] opinion[]” that Plaintiff would have difficulty in jobs that require
speed and accuracy in the perceptual motor processes.
20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3).
Next, the ALJ addressed the internal inconsistency of the DVR Report. As noted supra,
the ALJ explained that (i) Plaintiff’s hobbies (e.g., guitar, bowling and shooting pool) all involve
manual dexterity (Tr. at 24); (ii) the DVR Report identified Plaintiff’s interest in “mechanical
activities” and noted that “job related titles to consider would be carpenter, plumber, welder (which
[Plaintiff] had studied at Vo-Tech) or machine operator” (id. at 24-25); and (iii) Plaintiff “alleged
no hand impairments, played varsity football and wrestling in high school, drives a car, uses a
computer, has done power washing, worked in a pizzeria, etc.” and that “all of [these activities]
involve at least the manual dexterity needed to do the jobs cited by the vocational expert” (id. at
25). By addressing these internal inconsistencies in the DVR Report and the contradictory
evidence in the record, the ALJ adequately “assess[ed] the degree to which the opinion [from the
DVR Report] is consistent with the record as a whole.”
416.927(c)(4).
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20 C.F.R. §§ 404.1527(c)(4),
Finally, like the ALJ in Rutherford, ALJ Friedman did give limited weight to the pegboard
exam results by limiting Plaintiff to jobs not requiring speed or accuracy in fingering. (Tr. at 24).
In sum, the Court finds that the ALJ’s decision to discount the results of the Purdue Pegboard
Exam and to limit Plaintiff to jobs not requiring speed and accuracy in fingering (rather than a
more extensive limitation on manual dexterity) complies with 20 C.F.R. §§ 404.1527 and 416.927
and is supported by substantial evidence.
B. The ALJ’s Hypotheticals to the Vocational Expert Adequately Conveyed
Plaintiff’s Credibly Established Limitations
Next, Plaintiff argues that the ALJ erred by including more extensive limitations on
Plaintiff’s ability to work in the hypotheticals posed to the vocational expert than in the limitations
contained in the RFC. (Pl. Mov. Br. at 18-21). In particular, Plaintiff notes that the ALJ initially
posed a hypothetical in which the individual was limited to the exertional demands of light work,
no contact with the general public and low contact with coworkers and supervisors, and difficulty
in jobs requiring speed and accuracy in fingering and manual dexterity. (Tr. at 490; Pl. Mov. Br.
at 17-18). Plaintiff contends that these limitations were established by the evidence in the record
and that the ALJ “changed [these limitations] to take the form of slight limitations in order to
comport with jobs recited by the VE which couldn’t be done on the basis of the original
hypothetical.” (Pl. Mov. Br. 20-21). In other words, Plaintiff argues that the ALJ should have
incorporated these limitations from the initial hypothetical question into the RFC, rather than the
less extensive limitations (i.e., no exertional demand, low contact setting with the public and
coworkers, not requiring speed and accuracy in fingering) that the ALJ ultimately included in the
RFC assessment. (See id. at 18).
Generally, hypothetical questions posed to a vocational expert must convey all of the
claimant’s impairments established by the record in order for the vocational expert’s testimony to
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be considered substantial evidence. Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004);
Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Further, an ALJ must convey the
claimant’s limitations with specificity when posing hypothetical questions to a vocational expert.
Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (holding that a limitation phrased as “simple
repetitive one, two-step tasks” did not specifically convey claimant’s intellectual limitations).
Nonetheless, an ALJ need not include limitations without support in the record when submitting
hypothetical questions to the vocational expert. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,
206 (3d Cir. 2008); Plummer, 186 F.3d at 431–32 (holding that the ALJ was not required to include
a limitation in a hypothetical that the claimant was precluded from jobs requiring the use of his
hands on demand because this limitation was inconsistent with other evidence in the record).
Accordingly, an ALJ may pose an alternative hypothetical to a vocational expert that does not
portray the specific limitations of the claimant, but may only rely on a hypothetical that accurately
conveys all of the claimant’s credibly established limitations when determining disability. See
Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984) (noting that an ALJ may proffer a variety
of hypotheticals to the vocational expert, but need only consider a particular hypothetical if it
“accurately portrays the claimant’s individual physical and mental impairments”).
First, the Court finds that the ALJ’s RFC assessment is supported by substantial evidence.
While Plaintiff claims the additional limitations contained in the first hypothetical were supported
by the record, the Court disagrees. Plaintiff contends that the ALJ should have included an
exertional limitation, but, as Defendant amply points out, Plaintiff fails to identify any evidence in
the record that would establish such a limitation. (See Def. Opp. Br. at 8). Similarly, while
Plaintiff argues for a limitation of no contact with the general public, he does not identify specific
evidence that would support such a limitation. (Id.). Indeed, the consultative examiner, Dr.
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Baharlias, found that Plaintiff had only mild limitations in interacting appropriately with the public
and supervisors and had mild to no limitation in interacting appropriately with coworkers. (Tr. at
331). Additionally, during the 2005 DVR evaluation, Plaintiff stated, “I like to be around people.
I’m told I’m personable.” (Id. at 318). As such, the record supports the ALJ’s decision to include
a limitation of low contact setting with the public and coworkers. (Id. at 22). Finally, as discussed
in detail supra, the ALJ provided sufficient reasoning for discounting the results of the pegboard
exam and limiting Plaintiff only to jobs not requiring speed and accuracy in fingering. In sum, the
ALJ relied on “such relevant evidence as a reasonable mind might accept as adequate to support”
the limitations contained in the RFC assessment. Richardson, 402 U.S. at 401. Thus, the RFC
assessment is supported by substantial evidence.
Having determined that the RFC assessment is supported by substantial evidence, the Court
next addresses whether the hypothetical questions that the ALJ relied on at step five accurately
and specifically conveyed all of Plaintiff’s credibly established limitations to work requiring
“simple routine low stress jobs in a low contact setting with the public and coworkers not requiring
speed and accuracy in fingering.” (Tr. at 22). First, the initial hypothetical that the ALJ posed to
the vocational expert sufficiently conveys Plaintiff’s limitations to simple routine low stress jobs
in a low contact setting with the public and coworkers. (See id. at 490). This hypothetical entailed
an individual with Plaintiff’s vocational profile who was limited to the exertional demands of light
work, one- to two-step jobs in a low-stress setting, no contact with the general public and low
contact with coworkers and supervisors, and difficulty in jobs requiring speed and accuracy in
fingering and manual dexterity. (Id.)
While the hypothetical’s no-contact-with-the-general-public limitation may not directly
align with the RFC’s low-contact-setting-with-the-public limitation, an ALJ may rely on a
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hypothetical that contains more restrictive limitations than those in the RFC. This is because the
jobs that could be performed by an individual with greater limitations could also be performed by
an individual with fewer limitations. See Daniels v. Astrue, No. 12-30056, 2013 WL 1385396, at
*5 (D. Mass. Apr. 2, 2013) (“[T]his discrepancy is immaterial because the universe of jobs
identified by the VE in response to the hypothetical is smaller than the universe of jobs
contemplated by the RFC.”). In other words, an individual who was restricted to low contact with
the public would be able to perform any jobs that require no contact with the public. Thus, the
initial hypothetical that the ALJ posed to the vocational expert adequately conveyed Plaintiff’s
limitations to work requiring simple routine low stress jobs in a low contact setting with the public
and coworkers.4
Next, the Court finds that while the ALJ altered his exact descriptions of Plaintiff’s
limitations regarding fingering and manual dexterity throughout the testimony of the vocational
expert, the ALJ ultimately portrayed Plaintiff’s limitation regarding speed and accuracy in
fingering with enough accuracy and specificity for the vocational expert’s testimony to serve as
substantial evidence at step five. (See Tr. at 490-501). Initially, the ALJ described the hypothetical
individual as having “difficulty doing a job that requires speed and accuracy, as far as manual
dexterity—finger and manual dexterity.” (Id. at 490). While this initial description may lack
adequate specificity, the ALJ provided further clarification in his dialogue with the vocational
expert. The ALJ indicated that Plaintiff “could use his fingers” but would struggle with jobs that
Relatedly, the Court notes that the ALJ did not err by including more extensive limitations on Plaintiff’s
ability to work in the initial hypothetical question posed to the vocational expert than in the final RFC assessment.
The ALJ was not required to adopt these additional limitations into the RFC simply because they were contained in
the first hypothetical; in fact, it would be error to include limitations not credibly established by the record when
relying on a vocational expert’s testimony to make a disability determination. Rutherford, 399 F.3d at 554. To the
extent Plaintiff contends that the ALJ reduced Plaintiff’s limitations “in order to comport with jobs recited by the VE
which couldn’t be done on the basis of the original hypothetical,” (Pl. Mov. Br. at 20-21), the Court rejects this
argument for the reasons discussed in Section IV(A), supra.
4
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“would require speed and accuracy in his fingering.” (Id. at 491). The ALJ later described the
limitation as restricting Plaintiff to jobs “that would not require rapid fine fingering.” (Id. at 492).
Additionally, the ALJ indicated that the hypothetical individual could use his fingers but would
struggle with speed and accuracy. (Id. at 496). Thus, taken as a whole, the discussion between
the ALJ and the vocational expert as to the nature of the fingering and manual dexterity limitation
sufficiently conveys a limitation restricting Plaintiff to work that does not require speed and
accuracy in fingering. As such, the Court finds that the ALJ did not err in posing hypothetical
questions to the vocational expert and that the vocational expert’s testimony may be relied on as
substantial evidence at step five.
C. Reversal Is Not Warranted Irrespective of Plaintiff’s Ten-Year
Application Process
Plaintiff additionally argues that reversal is warranted because disability has clearly been
established and further delay would contravene justice. (Pl. Mov. Br. at 21). Because the Court
finds that Plaintiff is not disabled under the Act, this argument must be rejected.
V. Conclusion
For the foregoing reasons, the Court AFFIRMS the ALJ’s decision. An appropriate Order
accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
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