WESTWOOD v. COLVIN
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 7/6/15. 7/6/15 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WENDY A. WESTWOOD,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
JULY 6, 2015
Pursuant to 42 U.S.C. § 405(g), Wendy A. Westwood seeks review of the final
determination of the Commissioner of Social Security (the “Commissioner”) denying her
application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
After independent consideration of the Administrative Record, submitted pleadings, U.S.
Magistrate Judge Carol Sandra Moore Wells’ Report and Recommendation (“R&R”), the
Defendant’s Objections thereto, and Ms. Westwood’s Response to the Objections, the Court
sustains in part and overrules in part the Defendant’s Objections, and adopts in part and rejects in
part the Report and Recommendation. For the reasons that follow, the Court finds that the
Administrative Law Judge’s (“ALJ’s”) determination of Ms. Westwood’s disability was
unsupported by substantial evidence and remand is warranted.
Ms. Westwood was 43 years old on her alleged disability onset date and 47 years old on
the date of the administrative hearing. (R. 72). She completed high school and has past relevant
work as a data entry worker, office clerical worker, and kennel assistant. (R. 53, 72). She is
married and lives with her husband. (R. 31).
At the administrative hearing before the ALJ on October 25, 2012, Ms. Westwood
testified that she suffers from fatigue, the cause of which is still unclear. (R. 35-36). She
described her episodes of fatigue as inconsistent and unpredictable, sometimes lasting for a day
and sometimes lasting for weeks. (R. 48). Ms. Westwood also testified that she experiences
anxiety, depression, and panic attacks (R. 37, 41, 43), and feels disoriented and anxious in public
crowds as well as around family members (R. 45-46).
At the same hearing, the ALJ asked a vocational expert to consider whether jobs exist in
the national economy for an individual of Ms. Westwood’s age, education and background, with
no exertional limitations, a claimed need to avoid temperature extremes, ability to perform only
routine, repetitive tasks, to tolerate no more than occasional contact with co-workers and
supervisors, and ability to tolerate only infrequent changes in the work setting. (R. 53). The
vocational expert responded that such an individual could perform the jobs of document preparer
(350 positions in the local economy, 175,000 nationally); cleaner/housekeeper (550 positions
locally, 760,000 nationally); and store laborer (260 positions locally, 155,000 nationally). (R. 5355). The vocational expert also testified that a person could not work if he or she would be
absent from work three days each month, (R.55), and that if a person’s inability to maintain
attention and concentration resulted in a 20 percent (20%) decrease in productivity, he or she
would be on the cusp of unemployability, (R. 55-56).
On November 7, 2012, the ALJ denied Ms. Westwood’s claim for DIB and SSI. In that
decision, the ALJ concluded that Ms. Westwood’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however [her] statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible . . . .” (R.
70). But despite the ALJ’s promise to discuss this finding “in detail below,” id., the ALJ did not
clearly explain which of Ms. Westwood’s purported symptoms (e.g., extreme fatigue) were
credibly established and which were not. At the same time, the ALJ assigned significant weight
to the opinion of the state agency psychologist, who found that Ms. Westwood has moderate
difficulties in maintaining concentration, persistence, or pace, and experiences symptoms of
depression, anxiety, and fatigue. (R. 87-88).
The Appeals Council denied review of that decision on April 7, 2014, and Ms. Westwood
then sought judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). The case was
referred to Magistrate Judge Moore Wells for a Report and Recommendation, and Magistrate
Judge Wells recommended granting Ms. Westwood’s request for review solely on the grounds
that the ALJ failed to craft an adequate residual functional capacity or pose a proper hypothetical
to the vocational expert. The Defendant has objected to that recommendation.
STANDARD OF REVIEW
When a party makes a timely and specific objection to a portion of a magistrate judge’s
Report and Recommendation, the district court applies a de novo review to the issues raised on
objection. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The
court may accept, reject, or modify, in whole or in part, the findings or recommendations of the
magistrate judge. Id.
However, the district court may review the ALJ’s final decision only in order to
determine “whether that decision is supported by substantial evidence.” Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). Stated differently, the court “is bound
by the ALJ’s findings of fact if they are supported by substantial evidence on the record.”
Plummber v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). “Substantial evidence ‘does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Hartranft, 181 F.3d at 360 (quoting Pierce v.
Underwood, 487 U.S. 552 (1988)). The court may not “weigh the evidence,” Williams v.
Sullivan, 970 F.2d 1178, 1183 (3d Cir. 1992), and “will not set the Commissioner’s decision
aside if it is supported by substantial evidence, even if [the court] would have decided the factual
inquiry differently,” Hartranft, 181 F.3d at 360.
An ALJ’s decision must present sufficient explanation of his or her final determination to
provide a reviewing court with the benefit of the factual basis underlying the ultimate disability
finding. Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981) (citing S.E.C. v. Chenery Corp.,
318 U.S. 80, 94 (1943)). While the ALJ need only discuss the most pertinent, relevant evidence
bearing upon a claimant’s disability status, the ALJ must provide sufficient discussion to allow
the court to determine whether any rejection of potentially significant, probative evidence was
proper. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203-04 (3d Cir. 2008) (citing Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000); Cotter, 642 F.2d at 706).
A claimant bears the burden of proof on the issue of disability. In other words, a claimant
must show that 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 12
months.” 42 U.S.C. § 423(d)(1)(A). Under the regulations implementing the Act, the
Commissioner uses a five-step sequential process to determine whether a person is “disabled.” 1
The claimant satisfies the burden of proving disability by showing an inability to return to his
past relevant work. Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). Once the claimant
makes this showing, the burden shifts to the Commissioner to show that, given the claimant’s
age, education, and work experience, the claimant has the ability to perform specific jobs
existing in the economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); see Rutherford, 399
F.3d at 551.
Magistrate Judge Wells recommends remand and concludes that the ALJ committed
reversible error by not “explicitly includ[ing]” Ms. Westwood’s moderate difficulties with
concentration, persistence, or pace “both in the [residual functional capacity] and [in the]
hypothetical question posed to the [vocational expert].” (R&R at 9). Defendant objects to this
recommendation on three grounds. First, Defendant argues that the ALJ did not have to
“explicitly” include Ms. Westwood’s moderate difficulties with concentration, persistence, or
pace in the residual functional capacity or the hypothetical question posed to the vocational
expert. Second, Defendant argues that to the extent the ALJ was required to reference Ms.
Westwood’s moderate difficulties with concentration, persistence, or pace in the residual
functional capacity or the hypothetical question posed to the vocational expert, the ALJ did so by
noting that Ms. Westwood was limited to work involving “routine, repetitive tasks . . . and
This process requires the Commissioner to consider, in order, whether a claimant: (1) is
engaged in substantial gainful activity; (2) has a severe impairment or severe combination of
impairments; (3) has an impairment that meets or medically equals the requirements of a listed
impairment; (4) has a residual functional capacity to perform the claimant’s past relevant work;
and (5) is able to perform other work, in view of his age, education, and work experience. 20
C.F.R. § 416.920.
infrequent changes in the work setting.” (R. 69). Third, Defendant argues that Ramirez v.
Barnhart, 372 F.3d 546 (3d Cir. 2004), on which Magistrate Judge Wells relies, is inapposite
because, in that case, the ALJ considered only the frequency of plaintiff’s difficulties with
concentration, persistence, or pace, rather than the severity of such difficulties.
Under Ramirez, the ALJ is not required to explicitly mention Ms. Westwood’s moderate
difficulties with concentration, persistence, or pace in the residual functional capacity or the
hypothetical to the vocational expert. In Ramirez, the ALJ found that the claimant “often”
experienced “deficiencies of concentration, persistence, or pace resulting in a failure to complete
tasks in a timely manner (in work settings or elsewhere).” 372 F.3d at 549. However, the ALJ’s
hypothetical to the vocational expert did not mention that particular limitation. Our Court of
Appeals found that the ALJ’s hypothetical was error because the hypothetical “did not accurately
convey all of Ramirez’s impairments, and the limitations they cause.” Id. at 552. The Court of
Appeals found that asking the vocational expert a hypothetical limited to jobs involving “simple
one to two step tasks” did not take into account deficiencies in pace because there is a possibility
that jobs involving simple tasks involve quotas that cannot be met in light of deficiencies in pace.
Id. at 554. Since Ramirez, the Third Circuit Court of Appeals has clarified that the ALJ need not
use the magic words “difficulties in concentration, persistence, or pace.” Rather, all Ramirez
mandates is that the ALJ must include all credibly established limitations in the residual
functional capacity and the hypothetical posed to the vocational expert. In other words, courts
“want to know how well the ALJ studied the record, and how thoroughly he understood [the
claimant’s] specific impairments (or lack thereof) before making his decision about [the
claimant’s] residual functional capacity, and ultimately, [the claimant’s] disability claim.” Holley
v. Comm’r of Soc. Sec., 590 F. App’x 167, 168 (2014). The Court therefore rejects the Report
and Recommendation to the extent it suggests otherwise and Defendant’s Objections on that
Nevertheless, the Court disagrees with Defendant that the ALJ’s finding that Ms.
Westwood was limited to work involving “routine, repetitive tasks . . . and infrequent changes in
the work setting” adequately conveyed her credibly established difficulties with concentration,
persistence, or pace. It appears from the record that the ALJ credited evidence that Ms.
Westwood suffered from severe fatigue. At the administrative hearing, Ms. Westwood testified
that she suffers from unpredictable and extreme fatigue, impaired concentration, and short-term
and long-term memory loss. (R. 35-36, 48). The ALJ found, after apparent careful consideration
of Ms. Westwood’s medical records, “that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible as discussed in detail below.” (R. 70). Unfortunately, in the discussion that followed, the
ALJ did not clearly explain which aspects of Ms. Westwood’s purported symptoms were
credibly established and which were not. The ALJ also assigned significant weight to the opinion
of the state agency psychologist, who found that Ms. Westwood has moderate difficulties in
maintaining concentration, persistence, or pace, and experiences symptoms of depression,
anxiety, and fatigue. (R. 87-88). It is reasonable to conclude that extreme fatigue may impair
one’s ability to maintain a particular pace at work. Thus, the credible evidence that Ms.
Westwood suffers from extreme fatigue is also credible evidence that Ms. Westwood has
moderate difficulties with pace.
Despite the fact that the ALJ apparently credited the state agency psychologist’s
conclusion that Ms. Westwood suffered from extreme fatigue (and it is not clear to what extent
the ALJ credited Ms. Westwood’s testimony on that point), neither the ALJ’s determination of
the residual functional capacity nor the hypothetical posed to the vocational expert clearly
addressed Ms. Westwood’s moderate difficulties with pace. Defendant argues that limiting the
residual functional capacity and the hypothetical posed to the vocational expert to “routine,
repetitive tasks” and “only infrequent changes in the work setting” accounts for Ms. Westwood’s
moderate difficulties, but they do little to incorporate Ms. Westwood’s credibly established,
moderate difficulties with pace resulting from fatigue. Indeed, the vocational expert testified that
an inability to perform “routine, repetitive tasks” at a sufficient rate may result in the claimant
being found disabled. (See R. 55-56). Because the ALJ’s hypothetical was flawed, it cannot serve
as substantial evidence to support the ALJ’s determination and remand is warranted. 2 See, e.g.,
Ramirez, 372 F.3d at 550; Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 2004);
Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). Therefore, with respect to the adequacy
of the residual functional capacity and the hypothetical posed to the vocational expert, the Court
accepts the conclusions of the Report and Recommendation and overrules Defendant’s
Defendant also argues that Ramirez is not relevant to this case because the plaintiff in that
case “often” had difficulties with concentration, persistence, or pace, and Ms. Westwood has
Defendant further argues that “even if the evidence warranted inclusion of an additional
limitation regarding pace, remand nonetheless would be inappropriate here because ‘pace’ is not
an issue in light of the jobs identified by the [vocational expert] that Plaintiff could perform.”
(Def.’s Obj. 6). However, the posing of a defective hypothetical precludes finding that the
vocational expert’s testimony provides substantial evidence to support the ALJ’s ultimate
determination. See, e.g., Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002). The Court will not
opine on the demands of different jobs. That is the role reserved for the vocational expert.
“moderate” difficulties with concentration, persistence, or pace. Although the change in
regulatory language may be material in some cases, the Court need not decide that issue here
because the Court agrees with Magistrate Judge Wells, who aptly wrote that “the change in
regulatory terminology does not circumvent Ramirez’s requirement that the ALJ’s hypothetical
questions accurately convey the limitations the ALJ has found.” (R&R at 10). In this case, the
ALJ assigned great weight to the state agency psychologist’s opinion that Ms. Westwood
suffered from extreme fatigue and had moderate difficulties in maintaining concentration,
persistence, or pace, and assigned some unspecified weight to Ms. Westwood’s testimony that
she continues to suffer from extreme fatigue. Because the ALJ failed incorporate into the
residual functional capacity or the hypothetical posed to the vocational expert Ms. Westwood’s
apparent moderate difficulties with pace resulting from her extreme fatigue, the ALJ’s
determination is not supported by substantial evidence and Defendant’s Objections are overruled
to the extent they claim that Ramirez does not apply in this case.
The Court is not convinced that the ALJ “gave the vocational expert enough information
to provide a sound opinion about the types and numbers of jobs that were available,” Holley, 590
F. App’x at 169, because the ALJ found credible evidence in the record showing that Ms.
Westwood has moderate difficulties with concentration, persistence, or pace that were not
reflected in the residual functional capacity or the hypothetical posed to the vocational expert. As
a result, the Court will remand this matter to the ALJ for the determination of a residual
functional capacity and the crafting of a hypothetical that more precisely conveys the nature of
Ms. Westwood’s moderate difficulties with concentration, persistence, or pace in light of the
apparently credible evidence of Ms. Westwood’s extreme fatigue. An appropriate Order follows.
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE
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