ZACCONE-WHITEFLEET v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 7/27/2017. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16-1609 (1(M)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
Salvatrice Zaccone-Whitefleet brings this action pursuant to 42 U.S.C.
405(g) and 1383(c) to review a final decision of the Commissioner of Social
Security (“Commissioner”) denying her claims for disability and disability
insurance benefits (“DIB”) under Title II of the Social Security Act (the “SSA”)
and for Supplemental Security’ Income (“551”) under Title XVI of the SSA. See
401—403 and 1381—1385. Administrative Law Judge (“AL]”)
Olarsch reheard the matter on remand from a prior decision of this Court, per
Hon. Katharine S. Hayden, U.S.D.J. Finding the claimant not disabled, he
denied benefits. For the reasons expressed herein, the decision of the
Commissioner on remand is AFFIRMED.
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.
423. To be eligible for Title XVI 551 benefits,
a claimant must meet the income and resource limitations of 42 U.S.C.
To qualify under either statute, a claimant must show that she is unable to
engage in substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that
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), 1382c(a)(3)(A); see, e.g., Diaz v.
Comm- of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Securit Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 CFR
§ 404.1520, 416.920. This
Court’s review necessarily incorporates a determination of whether the AlA
properly followed the five-step process prescribed by regulation. The steps may
be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
4 16.920(c). If the claimant has a severe impairment, move to step
Step 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is
automatically eligible to receive benefits (and the analysis ends); if
not, move to step four. Id.
§ 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any severe impairment, the claimant
retains the Residual Functional Capacity (“RFC”) to perform past relevant
§ 404.1520(e)—(fl, 416.920(e)—(fl. If not, move to step five.
Step 5: At this point, the burden shifts to the Social Security
Administration to demonstrate that the claimant, considering her
age, education, work experience, and RFC, is capable of performing
jobs that exist in significant numbers in the national economy. 20
§ 404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec.,
474 F.3d 88, 9 1—92 (3d Cir. 2007). If so, benefits will be denied; if
not, they will be awarded.
For the purpose of this appeal, the Court conducts a plenary review of
the legal issues. See Schaudeck
Comm’r of Soc. Sec., 181 F,3d 429, 431 (3d
Cir. 1999). The factual findings of the AW are reviewed “only to determine
whether the administrative record contains substantial evidence supporting the
findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial
evidence is “less than a preponderance of the evidence but more than a mere
scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation
omitted). “It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. When substantial evidence exists to
support the AU’s factual findings, this Court must abide by the ALl’s
determinations. See fri. (citing 42 U.S.C.
This Court may, under 42 U.S.C.
405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007) (non
precedential). Outright reversal with an award of benefits is appropriate only
when a fully developed administrative record contains substantial evidence
that the claimant is disabled and entitled to benefits. Podedworny, 745 F.2d at
22 1—222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. See Podedworny, 745 F.2d at 22 1—22. Remand is also proper
if the ALl’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000); Leech v. Barnhart, 111 F. App’3c 652,
658 (3d Cir. 2004) (“We will not accept the ALPs conclusion that [the claimant]
was not disabled during the relevant period, where his decision contains
significant contradictions and is therefore unreliable.”) (not precedential). It is
also proper to remand where the AU’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available
evidence” in the record. Adomo v. Shalala, 40 F.Sd 43, 48 (3d Cir. 1994)
(internal quotation marks omitted).
Original Determination and Appeal
Zaccone-Whitefleet applied for DIB and 551 benefits on March 8, 2011,
alleging a January 1, 2011 onset of disability (AU decision, R 22).1 The AU
hearing the case at that time, Norman R. Zamboni, found that she suffered
from the severe impairment of panic disorder. (1? 24) He ruled that she did not
have an impairment or combination of impariments that meets or medically
equals the severity of the listed impairments. AU Zamboni defined Ms.
Zaccone-Whitefleet’s residual functional capacity (“RFC”) as follows:
I find that the claimant has the residual functional capacity
to perform a full range of work at all exertional levels but with the
following nonexertional limitation: the claimant can mentally
understand and remember instructions, maintain concentration,
pace and persistence, related [sic] to other individuals, and adapt
to work setting sufficiently to perform simple work duties.
Judge Zamboni found that there were jobs in the national economy that
the claimant could perform. His decision states that “[t]he claimant’s ability to
perform work at all exertional levels has been compromised by nonexertional
limitations. However, these limitations have little or no effect on the
occupational base of unskilled work.” (R 29) The AU did not use the service of
a vocational expert (“yE”) in conducting that analysis. Rather, he employed
section 204.00 of the Medical-Vocational Guidelines and Social Security rulings
85-15 and 83-10, found that the claimant could perform “simple duties,” and
The post-remand administrative record, leading to the decision now under
review (cited here as “R_”), is filed on the docket of this case, Civ. No. 16-1609, at
ECF no. 5, supplemented by a copy of the AU hearing at ECF no. 11.
ruluded that she was “obviously able to perform ‘unskilled’ work,” examples of
which exist in the national economy. (1? 29) ALl Zamboni concluded that Ms.
Zaccone-Whitefleet was not disabled, and denied benefits.
On appeal, Judge Hayden questioned the validity of ALl Zamboni’s
analysis. In an oral decision, she stated as follows:
Above all, there is a circular [sic] made in the last paragraph
that brings everything home, that is based upon a conflation of
simple duties with unskilled work, the desire being to get into the
unskilled work category, without a consideration of who, what,
where, when and how, this plaintiff would behalf [sic] in a specific
A yE, responding to hypotheticals, would be able I believe to
better orient the decision away from conclusory terms and grids as
a framework and the grid as a framework to findings that might
even come out the same way. But at least they would be illustrated
by hypotheticals. And maybe, and maybe, some testimony from the
VE as to what simple duties have to do with unskilled work.
There is simply too little that’s conveyed, by way of meaning
specific to this particular claimant and this particular record, for
the Court to find that the finding of not disable is supported by
substantial evidence, because of the omission of specifics regarding
this claimant’s ability to handle workplace obligations, pressures,
expectations. And simple duties doesn’t do enough for that.
So it will be remanded for the purpose of taking the
testimony of a vocational expert based on the record.
(R 279—80) Judge Hayden’s accompanying order, dated February 4, 2015,
stated that the matter was “reversed and remanded to the Commissioner for a
new decision and a new hearing to include the testimony of a vocational
expert.” (1? 281)
AU’s Decision on Remand
On remand from the District Court, the Appeals Council remanded the
matter, which was reheard by AU Leonard Olarsch. Judge Olarsch was
directed to conduct a new hearing and take any further action needed to
complete the administrative record and issue a new decision. In particular, the
new hearing was to include the testimony of a yE. Ms. Zaccone-Whitefleet was
given the opportunity to submit updated medical records. A new hearing, at
which she was represented by counsel, was held on October 1, 2015. (R 235,
AW Olarsch’s written decision properly follows the five-step process. I
summarize his findings and conclusions here:
The claimant met insured status and had not engaged in gainful activity
since January 1, 2011, the alleged onset date. (R 237
1, 2) “The claimant
has the following severe impairment: anxiety disorder (20 CFR 404.1520(c) and
4 16.920(c).” (1? 237
That impairment, alone or in combination with others, did not meet or
medically equal on of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R 238
4) The AU found moderate restriction of activities of daily
living. The claimant was able to care for her family by making meals, doing
chores, and the like. She tended to her hygiene, although sometimes went for
days without showering. She can drive, although she does not like to, can
shop, and can manage money. She had mild difficulties with social functioning.
As for concentration, persistence or pace, she had moderate difficulties. Here
the AU cited the consultative examination of Dr. Misking, at which she was
coherent and compliant; followed a three-step command; had good
comprehension and spoke clearly; showed no sign of memory problems or
thought disorder; and had a satisfactory persistence level. She did however,
have an anxious mood, with restlessness and worry. (R 238) There were no
episodes of decompensation.
AU Olarsch assessed Ms. Zaccone-Whitefleet’s RFC as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant is limited
to simple, routine and repetitive tasks, will be off-task 10% of the
workday and will most likely be absent up to 1 day a month, due
to mental difficulties.
¶ 5) The AW reviewed evidence of the claimant’s self-reported extreme
anxiety, as well as the medical evidence of her anxiety disorder. He concluded
that although the symptoms were real, the evidence did not fully support the
claimant’s statements concerning the intensity, persistence, and limiting effects
of those symptoms. (1? 240) To support that conclusion, the AW reviewed the
medical and other evidence in detail. (R 240—43) I discuss his review of that
evidence in more detail below. (Section 111.3, infra.)
The AW found that Ms. Zaccone-Whitefleet could not perform her past
relevant work as a secretary, citing testimony of the vocational expert. (R 243—
¶ 6) She was 35 years old as of the onset date, had a high school education,
and could communicate in English. (R 244 ¶j 7, 8)
At step five, the AW concluded that considering the claimant’s age,
education, work experience, and RFC, she could perform jobs that exist in
significant numbers in the national economy. (1? 244—45
¶ 10) Unlike the prior
AW, as required by Judge Hayden’s remand, Judge Olarsch called a vocational
expert (yE), and relied on that expert’s testimony in reaching that result, which
is discussed in more detail below. (Section III.C, infra.)
Accordingly, AU Olarsch found Ms. Zaccone-Whitefleet not disabled and
denied benefits. (R 245) This appeal followed.
This appeal is focused on the issues that were the basis for Judge
Hayden’s remand: Ms. Zaccone-Whitefleet’s RFC and her ability, or not, to
perform jobs existing in the national economy.
Adherence to Terms of Remand
Counsel for the claimant argues generally that the AU could not have
found her disabled while remaining faithful to the terms of Judge Hayden’s
remand. I disagree. Judge Hayden believed that, particularly in light of the
mental/psychological nature of the impairment, the first AU could not validly
perform that analysis by juggling the concepts of “simple duties” and “unskilled
work,” or by applying the rules of thumb embodied in the grid. It was
necessary, she said, to consider specifically the manner in which Zaccone
Whitefleet’s impairments interfered with her ability to perform tasks required
by her employment. That analysis, said Judge Hayden, would require the
testimony of a yE. Judge Hayden expressly acknowledged that on remand, the
case “might even come out the same way. But at least they would be illustrated
by hypotheticals. And maybe
some testimony from the VE as to what simple
duties have to do with unskilled work.” (R 279—80 (emphasis added))
For the reasons expressed herein, I find that AU Olarsch discharged his
duty to implement the remand, and that his findings are supported by
The RFC is an assessment of what the claimant is capable of doing in
light of the limitations that her impairment imposes on her activities. See 20
§ 404.1545(a), 4 16.945(a); Haflranft v. Apfel, 181 F.3d 358, 359 n.1 (3d
Cir. 1999). Based on the evidence, the AU found that the claimant had the
RFC to perform “a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant is limited to simple, routine
and repetitive tasks, will be off-task 10% of the workday and will most likely be
absent up to 1 day a month, due to mental difficulties.” (R 239)
The claimant’s brief on appeal asserts that the limitations found in her
RFC are too stingy. There was evidence in the record, she says, that her
depression, panic attacks, and VSD are more serious and limiting, and the
AU’s failure to credit such evidence, in her view, violated the “Cotter Doctrine.”
Under that line of cases, “[l]imitations that are medically supported but are also
contradicted by other evidence in the record may or may not be found
credible—the AU can choose to credit portions of the existing evidence but
‘cannot reject evidence for no reason or for the wrong reason”’ Rutherford v.
Bamhart, 399 F.3d 546, 554 (3d Cir. 2005) (quoting Mason v. Shalala, 994
F.2d 1058, 1066 (3d Cir. 1993), and Cotter
Harris, 642 F.2d 700, 706 (3d Cir.
1981)). Thus the AU was not required to credit all of the evidence now cited by
the claimant, but he was required to consider it and render a decision based on
the record. Reviewing the AU’s decision, I find that he reviewed and sifted the
Here, the claimant’s severe impairment is not a physical, exertional one,
but a psychological, non-exertional one: anxiety disorder. The version of the
RFC found on remand limits the claimant’s activities to routine, repetitive jobs,
and takes into account her being off-task for 10% of the workday and absent
once a month. It is immediately apparent that this version of the RFC is at
least facially calculated to address the particular, concrete limitations imposed
by the claimant’s psychological impairment. I therefore consider whether it has
an adequate foundation in the evidence.
The AU’s decision finds that the claimant suffers from a severe
impairment: anxiety disorder. (R 237—38) The issue here really involves the
AU’s assessment that the limitations on the claimants activities were not as
severe as claimed. That assessment, I find, is based on substantial evidence of
Statements by Ms. Zaccone-Whitefleet and Third Party statements
AU Olarsch appropriately noted and summarized the claimant’s selfreporting of her symptoms and activities. (I? 240)
Ms. Zaccone-Whitefleet complained of extreme anxiety and panic attacks.
She reported that the panic attacks occur twice per week, last for 45 minutes,
and require about an hour of recovery time.2 This, she says, is inconsistent
with the AU’s finding that she would be absent once per month or off-task
10% of the time.
Ms. Zaccone-Whitefleet is married, with two children, aged 11 and 13, for
whom she cares. She attends church sometimes, but dropped out. There are
occasional visits from church members, but not from friends. She has difficulty
concentrating and completing things, and cannot adhere to a schedule for a 4—
Subjective testimony, to the extent credited by the fact finder, may support a
finding of disability. I note, however, that there was no testimony or evidence that
corroborated the claimed seveHty or frequency of these allegedly debilitating attacks.
5 day work week. She moved to Georgia in 2014, and has not had medical
treatment since then.
A friend filled out a function report. (R 147) This report corroborated the
claimant’s statements that she suffers from panic or anxiety attacks, acts
depressed, has trouble sleeping, and tires easily. Although the friend calls the
panic attacks disabling, the facts in her report do not support that. She says,
for example, that the panic attacks tend to manifest themselves in irritability
and impatience. (R 153) Some days, she says, are better than others. The
friend’s report also states that Ms. Zaccone-Whitefleet copes with managing the
house from morning until night and takes good care of her children, without
meaningful assistance, drives, and otherwise copes with daily living activities.
The AU concluded that the claimant’s impairment could reasonably be
expected to cause symptoms of this kind. He found, however, that the
claimant’s statements concerning the intensity, persistence, and limiting effects
of the symptoms were “not entirely credible” in light of the objective evidence.
(R 240) That conclusion rested on his survey of the remaining medical
The chief objective medical evidence supporting the claimant’s position
consists of the February 2011 opinion and treatment notes of her physician,
Bernard Greenspan, D.O. (R 190) Dr. Greenspan’s report states “Cannot work.
Due to severe emotional reaction She should return to clinic as needed.”
AU Olarsch gave limited weight to this opinion, and gave his reasons for
doing so. (R 243) Disability, he observed first, is a legal finding, not a medical
one, requiring an independent determination by the SSA. In that he was
correct. See2O C.F.R.
§ 404,1527(d)(2), 1546(c); id. § 416.927(d)(2), 946(c);
Chandlery. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Second, he stated, the doctor stated a largely unsupported conclusion
that the claimant had a “severe emotional reaction.” Third, looking for such
backup in Dr. Greenspan’s treatment notes, the AU found little or no support.
Ms. Zaccone-Whitefleet reported improvement in her anxiety, and Dr.
Greenspan observed good insight, judgment, and orientation in all spheres.
From my reading of Dr. Greenspan’s notes, I would add the following: Dr.
Greenspan, although of course a physician, is not identified as a specialist in
mental health. After what seems to have been a complete physical examination,
he stated that his clinical impression was “Mixed disorders as reaction to
stress.” He also stated that the patient’s mood and affect were “anxious and
appropriate to situation.” (N 191) As to anxiety, “Patient indicates medication
improves,” and he prescribed Xanax. (R 190—91) This diagnosis falls far short
of corroborating Ms. Zaccone-Whitefleet’s reports of severe, frequent, ongoing,
and debilitating panic attacks.
The AU was entitled to discount Dr. Greenspan’s opinion to the extent it
suggested limitations greater than those stated in the RFC.
Dr. Miskin and Care Plus (Charles Kim, MD)
The AU reviewed a course of treatment by Solomin Miskin, M.D., and
Care Plus NJ (Charles Kim, MD) from February through August, 2011.
In February 2011 (apparently shortly after her visit to Dr. Greenspan),
Ms. Zaccone-Whitefleet was evaluated at Care Plus NJ, where she went for
psychotherapy. (N 227) The diagnosis was Axis I Adjustment disorder with
anxious mood, Axis IV untreated anxiety disorder. Her mental state was “very
anxious.” She was assigned a GAP score of 55. Her panic attacks were “severe”
and “clearly stress related.” The evaluator noted that she suffered panic attacks
during the interview when discussing her belief that her husband had been
cheating on her. There were no indications of concentration difficulties,
cognitive deficits, or phobias. The recommendation was continued use of Xanax
The AU also noted that the exam dated from 2011 and thus was not very
current. He received updated medical evidence, however.
Dr. Greenspan’s prior notes, dating from December 2010, documented
complaints of leg numbness and light headedness. He noted “mood and affect anxious,
appropriate to situation, panic, stressed and tearful.” His diagnostic impression was
“meralgia paresthetica. Mixed disorders as reaction to stress.” He prescribed a chest x
ray, but no medication. (N 192—93; discussed by AU at N 240)
and psychotherapy and, if progress was not satisfactory, consideration of a
trial of SSRI (antidepressant) medication.
The AW appropriately summarized and discussed this evidence. I add
that the only first-hand observation at Care Plus NJ, refers to situationdependent “attacks” (plural) brought on by discussion of marital infidelity. (I?
227—28) From the context, these attacks were transient reactions to the
discussion of a topic that would upset anyone; if they had been debilitating,
45-minute affairs requiring an hour of recovery, that surely would have been
noted. There is no indication, for example, that they interfered with the
remainder of the interview or examination.
In May 2011, Ms. Zaccone-Whitefleet had a consultative examination
with Solomin Miskin, M.D. His report is in the record (R 200) and was
discussed by the AU (R 240) She reported panic symptomatology and
depression linked to her discovery three months earlier that her husband had
an affair. She reported being on medication and stated that it had “been of
some help.” (R 200) Dr. Miskin performed a mental status examination and
diagnosed the claimant with VFSD, moderate severity, and panic disorder with
agoraphobia, severe. (R 201) The AU noted that the examination also revealed
that she thought clearly, could perform simple mathematical calculations, had
average intelligence, and reported having friends, although her incentive to
socialize was currently diminished. Her OAF was determined to be 55.
Also in the record (R 229), and discussed by the AU (R 241), is an
August 2011 report of discharge from treatment from Care Plus NJ. Ms.
Zaccone-Whitefleet reported struggling with anxiety and anger about her
husband’s affair and their financial need to move in with his family for a time.
She “reported decrease in panic attacks,” but said she continued to feel
irritable and suffered from “perfectionistic thinking.” Her OAF had improved
somewhat to 58. She was currently on Xanax as well as Celexa.
State Agency Consultants
The AU reviewed, and gave weight to, evaluations by State DDS
consultants. (1? 242—43)
In June 2011 (between Dr. Miskin’s evaluation and the Care Plus
discharge summary), Ryan Mendoza, Psy. D., filed two reports. He noted
anxiety as well as reported VFSD and panic disorder. (R 210) His RFC
evaluation involved 20 areas of workplace functioning under the general
categories of understanding and memory, sustained concentration and
persistence, social interaction and adaptation. (R 2 19—20) Dr. Mendoza found
that the claimant was “not significantly limited” as to 11 of those areas. As to
the remaining 9, he found only “moderate” limitation. Dr. Mendoza noted from
his review of the medical record that clinical evaluation had noted no though
disorder, anxious mood with appropriate affect, adequate memory, attention,
and concentration, based on tests such as memory of lists and backwards
spelling. “Based on MER in file, Cl[aimant] is able to understand and follow 2
step instructions. Can maintain attention for at least 2 hours.” (R 221)
On September 12, 2011, Pamela Foley, a psychologist, reviewed the file
and found no deterioration of condition. (R 223)
The AW was entitled to, and did, rely on the reports of Mendoza and
Foley in concluding that Ms. Zaccone-Whitefleet’s impairment did not wholly
disable her, but only limited her work functions to some extent.
Updated Medical Evidence on Remand
Treatment resumed in June 2013, mostly in connection with complaints
of depression, decreased energy, anxiety, and poor concentration. At a followup
in July 2013, she reported anxiety and dysphoria, and stated she was
considering going back on medication. In August 2013, she agreed to restart
medication; she did not return until June 2014, when she reported being off
medication for several months, but wished to resume because she was doing
well in therapy but wanted to feel 100% better.
ALPs Findings Based on the Evidence
The picture that emerged, in the ALl’s estimation, was that the evidence
did not support a claim of total disability. The treatment records were limited
and showed intact mental status despite anxiety, panic attacks and
depression. The claimant was alert, with no deficits in memory, concentration,
attention, or persistence, and no thought disorders or cognitive deficits. The
claimant had reported improvement with treatment, including medication, but
started and stopped medication at will and appeared for treatment
sporadically. The ALEJ surveyed the medical evidence, as summarized above,
and found that it did not support the severe limitations claimed. He also
reviewed and credited the state consultants’ findings that the impairments
were not severe, but moderate, and only in some areas. (1? 242)
Those findings have a firm foundation in the evidence. They support the
AW’s conclusion that the impairment was not as severe as claimed, and that
“the residual functional capacity accounts for the claimant’s complaints by
limiting her to simple, routine and repetitive tasks and by allowing the
claimant to be off-task 10% of the workday as well as miss 1 day of work per
month. Additional limitations are not supported by the record.” (R 242)
That a different AW could have seen the evidence differently is not a
sufficient basis for reversal. The findings made by this AW are supported by
substantial evidence, and under my deferential standard of review, that is
enough to sustain the AU’s finding as to the claimant’s RFC.
Ability to Perform Work Existing in the National Economy
The claimant’s counsel on appeal also attacks the ultimate conclusion
that Ms. Zaccone-Whitefleet can perform jobs existing in the national economy.
To some degree, this challenge duplicates her challenge to the RFC; the
argument is that the AU’s ultimate finding rested on an RFC that understated
the extent of her limitations.
On remand, as directed, the AU went beyond mere diagnosis and delved
into the issue of the extent and nature of the limitations on the jobs Ms.
Zaccone-Whitefleet can do. In doing so, he considered, inter alia, the testimony
of a yE, Tanya Edgehill. (See R 351—56)
The AW’s opinion explicitly acknowledged and took into account that the
claimant’s “ability to perform work at all exertional levels has been
compromised by nonexertional limitations.” (R 244) Thus the AW asked the VE
to consider the claimant’s RFC, as already found, plus her age level, education,
and work experience,4 in determining whether she could perform jobs existing
in the national economy. In particular, at the hearing, the AU highlighted the
limitation of being off task up to 10% of the work day and absent up to one day
The yE, having reviewed the evidence, concluded that a claimant with
those limitations could perform representative occupations such as hand
packager (DOT # 920.587-018); garment folder (DOT # 709.687-066); and
assembler (DOT # 739.687-066). All of these jobs exist in the national economy
in the tens or hundreds of thousands. (1? 244, 352—53) They involve simple,
repetitive, unskilled work. (R 353)
Meeting Judge Hayden’s concerns, the VE’s opinion explicitly took into
account the extent to which the claimants’ nonexertional impairments would
compromise particular activities required by employment. Thus the VE
testified, and the AU noted, that the claimant said she could concentrate for
no more than two hours at a time. These representative jobs, testified the yE,
could be performed in two-hour segments. (1? 244, 353, 355) With the usual
breaks, a person could thus be off task up to 15% of the work day. (1? 356)
It is true, of course, that a hypothetical question posed to a VE must
reflect all of a claimant’s specific limitations—mental and physical—where they
are supported by sufficient evidence. See, e.g., Bums v. Bamhart, 312 F.3d
113, 123 (3d Cir. 2002) (“Where there exists in the record medically undisputed
evidence of specific impairments not included in a hypothetical question to a
vocational expert, the experts response is not considered substantial
evidence.”) That does not mean, however, that the VE must be asked to opine
on all limitations alleged by a claimant. See Rutherford v. Bamhart, 399 F.3d
546, 554 (3d Cir. 2005) (“We do not require an AU to submit to the vocational
Ms. Zaccone-Whitelleet was born in 1975, making her 35 as of the claimed
disability onset date, and therefore a “younger individual” aged 18-49. 20 C.F.R. §
404.1563, 416.963. She has a high school education and is able to communicate in
English. (R 244) She last worked as a secretary. The AU accepted the yE’s testimony
that she was not currently able to perform that past relevant work. (R 243—44)
expert every impairment alleged by a claimant. Instead.
posed must accurately portray the claimant’s impairments and that the expert
must be given an opportunity to evaluate those impairments as contained in
the AM must accurately convey to the vocational expert all of a
claimant’s credibly established limitations.” (internal quotation marks and
For the reasons stated above, the limitations in the RFC, as found by the
AM, were based on substantial evidence. That being the case, the yE’s opinion
had a valid foundation.
For the foregoing reasons, the decision of the AM is AFFIRMED. An
appropriate order accompanies this Opinion.
Dated: July 27, 2017
United States District Judge
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