HARMON v. ASTRUE
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 1/11/12. 1/12/12 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL J. ASTRUE,
Commissioner of Social Security
J. WILLIAM DITTER, JR., Sr. J
JANUARY 11, 2012
Upon consideration of the brief in support of request for review filed by plaintiff
(Doc. No. 8), defendant’s response and plaintiff’s reply thereto (Doc. Nos. 11 & 12), I make the
following findings and reach the following conclusions:
On April 3, 2007, Gwendolyn Harmon protectively filed an application for
supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 13811383f, alleging an onset date of February 28, 2005. (Tr. 142-48). After Harmon’s application
was denied, she attended an April 7, 2008, hearing which resulted in an unfavorable decision
dated October 1, 2008. (Tr. 70-83; 84-104; 119-123). Harmon appealed the decision to the
Appeals Counsel who reversed the decision and remanded the case. (Tr. 60-64). A new ALJ
held a second hearing on December 22, 2009. (Tr. 29-50). On January 29, 2010, the ALJ issued
a second unfavorable decision. (Tr. 12-23). After the Appeals Council denied review of this
decision, pursuant to 42 U.S.C. § 405(g), Harmon filed her complaint in this court on November
24, 2010. (Tr. 1-5; Doc. No. 3).
In her January 29, 2010, decision, the ALJ concluded, inter alia, that: (1)
Harmon had severe disorders of the back, anemia, uterine fibroids, obesity, and a history of deep
venous thrombophlebitis and pulmonary emboli, and non-severe asthma and depression; (2) her
impairments did not meet or equal a listing; (3) she had the RFC to perform sedentary work with
a sit/stand option and the ability to use a cane at will, and which had no constant exposure to
pulmonary irritants; (4) she could perform her previous work as a lawyer, and (5) Harmon was
not disabled. (Tr. 15, Finding 2; 16, Finding 3; 19, Finding 4; 22, Findings 5-6).
The Court has plenary review of legal issues, but reviews the ALJ’s factual
findings to determine whether they are supported by substantial evidence. Schaudeck v. Comm’r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); see also Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). It is more than a mere scintilla but may be less than a preponderance. See Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Harmon alleges that the ALJ legally erred by failing to include in her RFC
assessment and hypothetical to the vocational expert (“VE”), mild limitations in the areas of: (1)
activities of daily living; (2) maintaining social functioning; and (3) maintaining concentration,
persistence or pace. (Tr. 18). I agree that the ALJ made a legal error and a remand is necessary.
Although the ALJ found that Harmon’s depression was not severe, she concluded that Harmon
did have mild limitations in the aforementioned three areas of functioning due to her depression.
(Tr. 16 & 18).
When creating an RFC assessment and formulating the hypothetical for
the VE, the ALJ must include all of a claimant’s limitations stemming from medically supported
impairments, whether or not those impairments are severe. Rutherford v. Barnhart, 399 F.3d.
546, 554 (3d Cir. 2005); Ramirez v. Barnhart, 372 F.3d 546, 554 -555 (3d Cir. 2004); Burns v.
Barnhart, 312 F.3d 113, 123 (3d Cir. 2002). Having found that Harmon’s non-severe depression
was medically supported and that there were limitations associated therewith, the ALJ had a duty
to address those limitations in the RFC and hypothetical question.1 See Washington v. Astrue,
08-2938, 2009 WL 855893, at *1 (E.D. Pa. March 31, 2009) (holding that the ALJ erred by
failing to include mild limitations in her RFC and hypothetical); Davis v. Astrue, 06-3550, 2007
WL 2248830, at *3-4 (E.D. Pa. July 30, 2007) (holding that the ALJ erred by failing to include
moderate and mild limitations in the hypothetical); Thompson v. Barnhart, 05-395, 2006 WL
709795, at *13- 15 (E.D. Pa. March 15, 2006) (holding, inter alia, that the ALJ erred by failing
to include mild limitations in the hypothetical). The inclusion of these mental limitations is
especially important since the ALJ concluded that Harmon could perform skilled work as a
lawyer, where even minimal deficits in these areas of functioning could impact her ability to
successfully perform the occupation.
The ALJ legally erred by failing to include all of the limitations she found
to be associated with Harmon’s medically determinable depression in her RFC assessment and
the hypothetical. Therefore, this case must be remanded in order for the ALJ to re-consider any
such limitations. In light of the remand, I find that there is no reason to address Harmon’s other
two arguments that the ALJ should have found her depression to be severe and that the ALJ
incorrectly weighed the credibility of her testimony.
An appropriate Order follows.
Oddly, the ALJ did incorporate a restriction in the RFC and hypothetical regarding Harmon’s other nonsevere impairment, asthma. (Tr. 19, Finding 4).
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