HESS v. BERRYHILL

Filing 16

ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE RELIEF SOUGHT BY PLAINTIFF IS GRANTED AS DESCRIBED BELOW; THE CASE IS REMANDED TO THE COMMISSIONER PURSUANT TO THE FOURTH SENTENCE OF 42 U.S.C. SECTION 405(G), AND, IN ACCORDANCE WITH THE REPORT AND RECOMMENDATION AS OUTLINED AND THE CLERK OF COURT SHALL CLOSE THIS MATTER STATISTICALLY. SIGNED BY HONORABLE WENDY BEETLESTONE ON 4/5/18. 4/6/18 ENTERED AND COPIES EMAILED TO COUNSEL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RUSSELL HESS, III,
Plaintiff,

CIVIL ACTION

v.
NANCY A BERRYHILL AND SOCIAL
SECURITY ADMINISTRATION,
Defendants.

NO. 17-1223

ORDER
AND NOW, this 5th day of April, 2018, upon consideration of Plaintiff’s Brief and
Statement of Issues in Support of Request for Review (ECF No. 10), Defendant’s Response to
Request for Review (ECF No. 11), Plaintiff’s Reply Brief (ECF No. 12), and after review of the
Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells on
January 25, 2018 (ECF No. 13), as well as Defendant’s Objections thereto (ECF No. 14), IT IS
ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;1

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On July 18, 2013, Plaintiff applied for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). On November 18, 2015, Plaintiff appeared before ALJ Barbara Artuso, where a vocational expert,
Irene Montgomery, testified. The ALJ proceeded through the required five-step sequential framework to determine
whether Plaintiff was disabled. See 20 C.F.R. §§ 416.920(4). At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since the alleged disability onset date. At step two, the ALJ concluded that
Plaintiff had a litany of “severe” impairments. The ALJ also determined Plaintiff had “moderate” impairment in
concentration, persistence or pace. In making this conclusion, the ALJ rejected the opinion of the State
psychological consultant, who determined that Plaintiff’s limitations were mild. However, the ALJ specifically
found that claimant’s self-reported activities of daily living “are consistent with an individual who is able to perform
simple, routine tasks.”
At step three, the ALJ determined that none of the physical or mental impairments meets the requirements
of severity listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ determined that Plaintiff “has the residual
functional capacity to perform sedentary work . . . except that he . . . is limited to jobs requiring understanding,
remembering, and carrying out only simple instructions and making on simple work-related decisions.” At step
four, based on the residual functional capacity assessment, the ALJ found that Plaintiff could not perform any of his
relevant past work. Finally, at step five, the ALJ relied on the testimony of the vocational expert to conclude that
Plaintiff could perform work still existing in the national economy. At step five, the ALJ did not incorporate her
finding of a “moderate” limitation in concentration, persistence, or pace in a hypothetical she posed to the vocational
expert. Instead, she asked the vocational expert if a person “limited to jobs requiring understanding, remembering,
and carrying out only simple instructions making only simple, work related decisions, involving no interaction with

2. The relief sought by Plaintiff is GRANTED as described below;
3. The case is REMANDED to the Commissioner pursuant to the fourth sentence of 42
U.S.C. § 405(g), and, in accordance with the Report and Recommendation, “so that the
Administrative Law Judge can include her finding that Plaintiff has moderate limitation
in maintaining concentration, persistence or pace when determining Plaintiff’s residual
functional capacity at steps four and five of the sequential evaluation process.”
4. The Clerk of Court shall CLOSE this matter statistically.

BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________
WENDY BEETLESTONE, J.

the general public or coworkers” could perform a job in the national economy.
Magistrate Judge Wells determined that the hypothetical did not comply with the Third Circuit’s holding in
Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004). In Ramirez, the Third Circuit reiterated that a hypothetical must
account for all of an applicant’s impairments. The court disapproved of a hypothetical restricting an applicant’s
potential work to “simple tasks” when an ALJ also finds that the applicant “often” has deficiencies in concentration,
persistence, or pace. Id. at 554. Nevertheless, three unreported Third Circuit cases have held that a hypothetical
restricting an applicant to simple tasks is sufficient even where an ALJ has determined that the applicant possesses
moderate difficulties in concentration, persistent or pace. See Holley v. Comm’r of Soc. Sec., 590 F. App’x 167, 168
(3d Cir. 2014); McDonald v. Astrue, 293 F. App’x 941, 946 (3d Cir. 2008); Menkes v. Astrue, 262 F. App’x 410,
412 (3d Cir. 2008). This Court recently addressed this conflict between the reported and unreported decisions. See
Sawyer v. Berryhill, No. 17-cv-644, slip op. (E.D. Pa. April 5, 2018). This Court will continue to apply the holding
of Ramirez and finds that a remand is necessary in light of the continued viability of that case. Judge Wells’ Report
and Recommendation is adopted in full.

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