BROOKS v. ASTRUE
Filing
15
ORDER granting in part and denying in part 9 Plaintiff's Motion for Summary Judgment; denying 11 Defendant's Motion for Summary Judgment; and remanding the case to the Commissioner for further proceedings. Signed by Judge Alan N. Bloch on 8/7/2013. (kmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LILLIE W. BROOKS,
Plaintiff,
Civil Action No. 12-750
Vs.
MICHAEL J. ASTRUE ,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM ORDER
AND NOW, this 7th day of August, 2013, upon consideration
of Defendant's Motion for Summary Judgment (document No. 11)
filed in the above-captioned matter on October 1, 2012,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff's Motion for
Summary Judgment (document No.9) filed in the above-captioned
matter on September 10, 2012,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART
and DENIED IN PART.
Specifically, Plaintiff's Motion is granted
to the extent that it seeks a remand to the Commissioner of
Social Security ("Commissioner") for further evaluation as set
forth below and denied in all other respects.
Accordingly, this
matter is hereby remanded to the Commissioner for further
evaluation under sentence four of 42 U.S.C.
this Order.
§
405(g) in light of
I. Background
On July 24, 2008, Plaintiff Lillie Wilson Brooks filed her
application claim for Disability Insurance Benefits ("DIB")
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434,
and for Supplemental Security Income ("SS1") under Title XVI of
the Social Security Act, 42 U.S.C. §§1381-1383f.
(R. 10).
In
her application, Plaintiff claimed that she became disabled on
October 19, 2007, due to bipolar disorder, sleep apnea, high
blood pressure, seizure disorder, and tumors in the esophagus.
(R. 155).
After being denied initially on November 21, 2008,
Plaintiff filed a "Request for Hearing by Administrative Law
Judge ("ALJ") on December 29, 2008.
(R. 66, 71, 76).
A hearing
before the ALJ was held on May 26, 2010 (R. 10, 24), and, in a
decision dated June 16, 2010, the ALJ denied Plaintiff's request
for benefits.
(R. 10-18).
The Appeals Council declined to
review the ALJ's decision on April 16, 2012.
(R. 1-5).
On June
5, 2012, Plaintiff filed a timely appeal with this Court, and
the parties have filed cross-motions for summary judgment.
II.
Standard of Review
Judicial review of a social security case is based upon the
pleadings and the transcript of the record.
405(g).
See 42 U.S.C. §
The scope of review is limited to determining whether
the Commissioner applied the correct legal standards and whether
2
the record, as a whole, contains substantial evidence to support
the Commissioner's findings of fact.
F.3d 589, 592 (3d Cir. 2001)
See Matthews v. Apfel, 239
("[t]he findings of the
Commissioner of Social Security as to any fact,
substantial evidence, shall be conclusive")
405(g»;
Sc~aude~k
Cir. 1999)
if supported by
(quoting 42 U.S.C. §
v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d
(noting that the court has plenary review of all
legal issues, and reviews the administrative law judge's
findings of fact to determine whether they are supported by
substantial evidence) .
"Substantial evidence" is defined as "more than a mere
scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate" to support a conclusion.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
Plummer v.
However, a "single
piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict
created by countervailing evidence."
310, 317 (3d Cir. 2000)
Morales v. Apfel, 225 F.3d
(quoting Kent v. Schweiker, 710 F. 2d
110, 114 (3d Cir. 1983».
"Nor is evidence substantial if it is
overwhelmed by other evidence - particularly certain types of
evidence (e.g., that offered by treating physicians) - or if it
really constitutes not evidence but mere conclusion."
317.
3
Id. at
A disability is established when the claimant can
demonstrate some medically determinable basis for an impairment
that prevents him or her from engaging in any substantial
gainful activity for a statutory twelve-month period.
See
Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001).
"A
claimant is considered unable to engage in any substantial
gainful activity 'only if his physical or mental impairment or
impairments are 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 .. .. '"
Id. at
39 (quoting 42 U.S.C. § 423 (d) (2) (A)).
The Social Security Administration ("SSA") has promulgated
regulations incorporating a five-step sequential evaluation
process for determining whether a claimant is under a disability
as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.
In
Step One, the Commissioner must determine whether the claimant
is currently engaging in substantial gainful activity.
C.F.R. §§ 404.1520(b), 416.920(b).
will be denied.
See 20
If so, the disability claim
See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
If not, the second step of the process is to determine whether
the claimant is suffering from a severe impairment.
C.F.R. §§ 404.1520(c), 416.920(c).
See 20
"An impairment or
combination of impairments is not severe if it does not
4
significantly limit [the claimant's] physical or mental ability
to do basic work activities."
416.921(a).
20 C.F.R.
§§
404.1521{a),
If the claimant fails to show that his or her
impairments are "severe," he or she is ineligible for disability
benefits.
If the claimant does have a severe impairment,
however, the Commissioner must proceed to Step Three and
determine whether the claimant's impairment meets or equals the
criteria for a listed impairment.
416.920(d).
See 20 C.F.R.
§§
404.1520(d),
If a claimant meets a listing, a finding of
disability is automatically directed.
If the claimant does not
meet a listing, the analysis proceeds to Steps Four and Five.
Step Four requires the ALJ to consider whether the claimant
retains the residual functional capacity ("RFC") to perform his
or her past relevant work.
416.920(e).
See 20 C.F.R.
§§
404.1520(e),
The claimant bears the burden of demonstrating an
inability to return to his or her past relevant work.
Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
See
If the
claimant is unable to resume his or her former occupation, the
evaluation moves to the fifth and final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate that the claimant is capable
of performing other available work in the national economy in
order to deny a claim of disability.
404.1520(g), 416.920(g).
See 20 C.F.R.
§§
In making this determination, the ALJ
5
should consider the claimant's RFC, age, education, and past
work experience.
See id.
The ALJ must further analyze the
cumulative effect of all the claimant's impairments in
determining whether he or she is capable of performing work and
is not disabled.
See 20 C.F.R.
§§
404.1523, 416.923.
III. The ALJ's Decision
In the present case, the ALJ found that Plaintiff met the
insured requirements of the Social Security Act through December
31, 2012.
(R. 12).
Accordingly, to be eligible for DIB
benefits, Plaintiff had to establish that she was disabled on or
before that date.
See 42 U.S.C.
C.F.R.
.110,
§§
404.101,
§§
423 (a) (1) (A),
(c) (1) (B); 20
.131.
The ALJ then proceeded to apply the sequential evaluation
process when reviewing Plaintiff's claim for benefits.
In
particular, the ALJ found that Plaintiff had not been engaged in
substantial gainful activity since August 5, 2008. 1 (R. 12).
The
The Court notes that the parties dispute whether the ALJ properly
found this to be the correct alleged onset date. In his decision, the
ALJ stated that Plaintiff alleged an onset date of August 5, 2008, at
the hearing. (R. 10). Plaintiff, however, denies that she ever alleged
an August 5, 2008 onset date at the hearing. See (Doc. No. 13 at 4).
She contends that she amended her onset date to January 16, 2010, and
that this amendment was set forth in the "Hearing Memorandum" that was
submitted to the ALJ on May 24, 2010, two days before the hearing.
See (Doc. No. 13 at 2, 3); (R. 216, 232). Plaintiff maintains that the
ALJ erred in finding an onset date of August 5, 2008, and though she
concedes that she "did not specifically mention the [January 16, 2010]
amended onset date at the hearing," she asserts that it was clearly
alleged in the Hearing Memorandum that was submitted to the ALJ and
incorporated into the administrative record prior to the hearing.
(Doc. No. 13 at 3). While the Court does not reach the issue of
1
6
ALJ also found that Plaintiff met the second requirement of the
process insofar as she had severe impairments, specifically,
mood disorder and possible adjustment disorder.
(rd. at 13).
The ALJ concluded that Plaintiff's impairments did not meet any
of the listings that would satisfy Step Three.
rd. at 14).
The ALJ found that Plaintiff retained the RFC to "perform a
full range of work at all exertional levels but with the
following nonexertional limitations: low stress environment with
no need to interact with the public."
(rd. at 15).
Based on
this RFC, Plaintiff established that she was incapable of
returning to her past employment; therefore, the ALJ moved on to
Step Five.
(r~
at 16).
The ALJ then used a vocational expert
("VE") to determine whether or not there were a significant
number of jobs in the national economy that Plaintiff could
perform. The VE testified that, based on Plaintiff's age,
education, past relevant work experience, and RFC, Plaintiff
could perform jobs, including assembler, hotel cleaner, and
sanitation worker, that exist in significant numbers in the
national economy_
(R. 17, 48).
Plaintiff was not disabled.
Accordingly, the ALJ found that
rd. at 17)_
whether Plaintiff sufficiently amended her onset date by way of her
Hearing Memorandum, the confusion surrounding the amended onset date
must be resolved on remand. It appears that the ALJ interpreted
counsel's statement at the hearing that Plaintiff's application for
benefits "dates back to August 5, 2008" to mean that she was alleging
disability as of that date. See (Doc. No. 7-2 at 27). Plaintiff is
advised to ensure that any amendment to her alleged onset date is
communicated directly to the ALJ, in a clear and unambiguous manner.
7
IV.
Legal Analysis
The crux of Plaintiff's claim is that the ALJ erred by not
according controlling weight to the opinion of her treating
psychiatrist, Dr. Bulgarelli, who found that her impairments (1)
had "marked limitations" in her activities of daily living and
concentration, persistence, or pace,
(2) caused her to
experience \\[t]hree or more episodes of decompensation within 12
months, each at least two weeks long," and (3) would cause her
to be absent from work four days per month.
See (R. 1727-1730).
She contends that Dr. Bulgarelli's opinion was supported by the
opinion of Dr. Carusso, the state agency consultative examiner,
who found "marked" limitations in Plaintiff's ability to (i)
carry out short, simple instructions,
(ii) make judgments on
simple work-related decisions, and (iii) respond appropriately
to changes in a routine work setting.
{R. 1196}.
Plaintiff
asserts that the record as a whole provided support for Dr.
Bulgarelli's opinion, which the ALJ discredited without relying
on contradictory medical evidence, and that the ALJ improperly
substituted his own lay opinion in determining she was not
disabled.
See {Doc. No. 10 at 6-7}. She also argues that the
ALJ's failure to accord controlling weight to Dr. Bulgarelli's
opinion precludes his Step Three medical listing finding from
being supported by substantial evidence.
See (Id. at 11).
Defendant argues that the record evidence as a whole provides
8
substantial support for the ALJ's evaluation of the treating
psychiatrist's opinion of disability and his ultimate
determination of non-disability.
While the Court does not agree with all the arguments
raised by Plaintiff, it does agree that remand is warranted in
this case.
Specifically, the Court finds that substantial
evidence does not support the ALJ's RFC determination because
the ALJ (1) failed to address and discuss countervailing opinion
evidence which conflicted with his RFC finding, and (2) did not
incorporate credibly established limitations into his RFC
determination, which led to a deficient hypothetical being posed
to the VE.
As a consequence of the deficient hypothetical, the
Court cannot consider the VE's testimony to be substantial
evidence that there are other jobs that exist in significant
numbers in the national economy that Plaintiff can perform,
despite her limitations. In light of these errors, the Court
cannot conclude that substantial evidence supports the ALJ's
ultimate determination that Plaintiff is not disabled.
Accordingly, the Court will remand the case for further
consideration consistent with this Order.
RFC Determination
The Court finds that the ALJ's RFC determination is
deficient for two reasons: First, the ALJ failed to discuss the
findings of Dr. Carusso and Dr. Rohar
9
l
state agency
psychologists who each rendered an opinion regarding Plaintiff's
nonexertional limitations that conflicted with the ALJ's
ultimate RFC determination.
Second,
the ALJ's RFC determination
failed to account for his own finding that Plaintiff had
moderate limitations in concentration, persistence, and pace,
and, as a result,
(i)
his RFC finding failed to accurately
portray the work that Plaintiff is able to perform despite her
limitations, and (ii) his hypothetical to the VE failed to
convey all of her credibly established limitations. 2
2 In light of the Court's finding that the ALJ failed to properly
evaluate the findings by Dr. Carusso and Dr. Rohar, the Court cannot
conclude that substantial evidence supports his evaluation of Dr.
Bulgarelli's opinion since his assessment could have been impacted by
the findings of the state agency psychologists. On remand, the ALJ is
advised to demonstrate meaningful consideration of all the relevant
medical opinions in the record and to analyze any treating physician
opinions in accordance with the applicable rules and regulations. S~~
AdorIlo, 40 F.3d at 48 ("the ALJ must weigh the relative worth of a
treating physician's report against the reports submitted by other
physicians who have examined the claimant"). To that end, the Court
notes that opinions from treating physicians should be given great
weight only "when their opinions reflect expert judgment based on a
continuing observation of the patient's condition over a prolonged
period of time.
Rocco _'\l'_,-_H_~~~1:er, 826 F. 2d 1348, 1350 (3d Cir. 1987)
(emphasis added) i 20 C.F.R. § 404.1527(d) (2). The record appears to
indicate that no such relationship existed between Plaintiff and Dr.
Bulgarelli. At the time Dr. Bulgarelli wrote his May 25, 2010
opinion, he had only seen Plaintiff a total of six times between March
31, 2008 and April 16, 2010. See (R. 955, 1277-78, 1372, 1506, 1628,
1667). According to Plaintif~she performed substantial gainful
activity for the majority of that time period, and did not stop
working until January 15, 2010, the day she quit her job at Family
Links where she had worked for over a year. See (Doc. No. 10 at 2-3) i
(Doc. No. 13 at 2). Plaintiff's mental health records from 2010
indicate that prior to submitting his May 25, 2010 "Mental Impairment
Questionnaire," Dr. Bulgarelli only met with Plaintiff three times:
(i) February 25, 2010 (R. 1506), (ii) April 11, 2010 (R. 1667), and
(iii) April 16, 2010 (R. 1628). The February 25, 2010 treatment
session was the first time Dr. Bulgarelli had seen Plaintiff since
September of 2008. See (R. 1506). Against this backdrop, it appears
II
10
Failure to Address Relevant Medical Opinions
RFC is defined as "that which an individual is still able
to do despite the limitations caused by his or her
impairment(s)." Fargnoli, 247 F.3d at 40; see also 20 C.F.R.
404.1545(a), 416.945(a).
§§
In determining an individual's RFC, an
ALJ must consider all relevant evidence which "includes 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."
41 (citing 20 C.F.R.
§
404.1545(a)).
Id. at
Importantly, an ALJ must
ensure that his RFC determination is "accompanied by a clear and
satisfactory explication of the basis on which it rests.'"
(quoting Cotter v. Harris, 642 F.2d 700, 704
Id.
(3d Cir. 1981});
see also Social Security Ruling ("S.S.R.") 96-8p, 1996 WL 374184
(S.S.A.), at *7 (July 2, 1996)
("The RFC assessment must include
a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts
(e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities,
observations}") .
"When making a residual functional capacity determination,
'an ALJ may not reject pertinent or probative evidence without
that the documented length and frequency of this treatment
relationship counsels against the assignment of great weight to Dr.
Bulgarelli's opinion.
It also makes Plaintiff's contention that the
ALJ simply "plucked" a positive treatment note "from a single April
2010 treatment record" unavailing.
See (Doc. No. 10 at 9).
11
explanation. '"
Cir. 2011)
Russo v. Astrue, 421 Fed. Appx. 184, 190 (3d
{quoting Johnson v. Comm'r of Soc. Sec., 529 F.3d
198, 204 (3d Cir.2008».
An ALJ "must describe how the evidence
supports his conclusion and explain why certain limitations are
not accepted as consistent with the medical or other evidence."
Noah v.Astrue, 2013 WL 364235, at *2 (W.D. Pa. Jan. 30, 2013)
(citing Plummer, 186 F.3d at 429 ("An ALJ must consider all the
evidence and give some reason for discounting the evidence she
rejects."».
While an ALJ is not bound by any medical opinions
in the record, he must nonetheless (i) demonstrate his
consideration of all the relevant medical evidence and (ii)
explain which evidence he chose to reject in arriving at his
conclusion.
See Plummer, 186 F.3d at 429 ("The ALJ must
consider all the evidence and give some reason for discounting
the evidence she rejects.")
i
Cotter, 642 F.2d at 706 ("[T]here
is a particularly acute need for some explanation by the ALJ
when s/he has rejected relevant evidence or when there is
conflicting probative evidence in the record. ") ;
In his decision, the ALJ found that Plaintiff retained the
functional capacity to "perform a full range of work at all
exertional levels but with the following nonexertional
limitations: low stress environment with no need to interact
with the public."
(R. IS).
He then provided the following
supporting explanation:
12
In making this determination, I have given
greater weight to the opinion of [Dr. Laufe] the
consultative examiner who examined the claimant from a
physical perspective. His report was the most thorough
narrative on the claimant's physical abilities
(Exhibit 17F). I have also given greater weight to the
actual treatment notes provided by the claimant's
treating physician regarding the claimant's mental
state. Although the doctor concluded that the
claimant is disabled by her combination of physical
and mental ailments (Exhibit 19F), and by her "marked"
limitations in her mental ability (Exhibit 33F), his
own treatment records do not support the conclusion.
His ongoing notes indicate that the claimant's mood
was generally stable with only occasional increase of
symptoms as a consequence of situations and events.
(Exhibit 31F). Contrary to the doctor's assertion that
the claimant was unable to work, he had almost
simultaneously recommended the claimant for vocational
assistance (Exhibits 19F, 31F!10-11).
I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR
404.1529 and 416.929 and SSRs96-4p and 96-7p. I have
also considered opinion evidence in accordance with
the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
(R. 15-16).
Although the ALJ identified, discussed, and
assigned weight to the opinions of Dr. Laufe, the physical
consultative examiner (Exhibit 17F), and Dr. Bulgarelli, the
treating psychiatrist (Exhibit 33F), he failed to identify,
discuss, and assign weight to the opinions of Dr. Carusso, the
psychological consultative examiner (Exhibit 13F), and Dr.
Rohar, the non-examining state agency psychologist (Exhibits 14F
& 15F).
The ALJ's only remarks concerning Dr. Carusso's
examination is limited to the following references:
13
When the cla~ant was psychologically evaluated
on October 17, 2008, she reported that she felt she
was disability [sic] primarily because of her physical
health ailments (Exhibit 13F). At her physical
evaluation a month later on November 13, 2008, the
claimant reported that she "felt well and was active
without regular exercise.
There are numerous inconsistencies in the record.
The claimant testified that her mental state is the
primary reason she cannot work. 3 Yet, she told the
psychological consultant that her physical problems
were the chief reason she was disabled (Exhibit 13F) .
(R. 14, 16)
(emphasis added).
While the ALJ acknowledged the
fact that Plaintiff had undergone a psychological consultative
examination on October 17, 2008, he failed to discuss the
findings of that examination. The ALJ also does not reference
Dr. Rohar's opinion at any point throughout his decision and
does not even allude to the existence of a non-examining state
agency opinion in the record.
These errors warrant remand
because Dr. Carusso and Dr. Rohar each offered opinions
identifying nonexertional limitations that neither were included
in the RFC assessment nor explained away by the ALJ.
Indeed, Dr. Rohar examined the record on November 3, 2008,
and found that Plaintiff was "markedly limited" in her ability
3 The Court notes that substantial evidence does not support the ALJ's
apparent conclusion that Plaintiff testified inconsistently at the
hearing regarding her last day worked.
See (R. 16). The Court has
reviewed the hearing transcript and it is unclear where the ALJ got
the impression that she provided inconsistent testimony about this
issue. In her opening statement, Plaintiff's counsel said that
Plaintiff "is currently unemployed and has not worked for the past
five months." (R. 27).
Plaintiff's attorney later asked her when was
the last time she worked, to which Plaintiff replied, "[m]y last day
of work was January 15, 2010." (R. 31).
14
to (i) understand and remember detailed instructions and (ii)
carry out detailed instructions. He further found that Plaintiff
was "moderately limited" in her ability to (i) carry out very
short and simple instructions,
(ii) maintain attention and
concentration for extended periods,
(iii) work in coordination
with or proximity to others without being distracted by them,
(iv) make simple work-related decisions, and (v) complete a
normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods.
(R.
1198-99).
Dr. Carusso examined Plaintiff and found that she had
"marked H limitations in her ability to (i) carry out short,
simple instructions and (ii) make jUdgments on simple work
related decisions, and (iii) respond appropriately to changes in
a routine work setting.
(R. 1196).
Dr. Carusso also found
"moderate H limitations in Plaintiff's ability to (i) understand
and remember short, simple instructions, and (ii) understand and
remember detailed instructions,
(iii) interact appropriately
with the public, supervisors, and coworkers, and further found
that Plaintiff had "extreme H limitations in her ability to carry
out detailed instructions.
Id.).
Although Dr. Rohar noted the inconsistency between his
findings and Dr. Carruso's report, See (R. 1200), the ALJ failed
15
to acknowledge and resolve the conflict created by these
opinions and essentially dismissed Dr. Carusso's findings based
on Plaintiff's statement that she felt she was disabled
"primarily because of her physical health ailments." See (R.
14).
The Court has reviewed Dr. Carusso's nine-page report and
it appears that the ALJ picked one statement and interpreted it
as evidence that Plaintiff was feigning any mental health
issues; had Plaintiff not qualified that statement throughout
the examination and described her struggle with her
psychological issues and the limitations they caused, the Court
might agree with that conclusion.
Regardless, Plaintiff's
allegedly inconsistent statement may have provided the ALJ with
grounds to assign less weight to Dr. Carusso's opinion and/or
deem her subjective complaints to be less credible; however, it
was not a basis to completely forego discussion of Dr. Carusso's
findings, especially when they conflicted with the ALJ's RFC
determination and tended to support the opinion of the treating
physician.
In sum, the Court cannot overlook the ALJ's failure to
discuss the findings made by the state agency consultants,
explain how much weight he assigned to their opinions, and
resolve the conflict that was created between their opinions and
his RFC finding. These errors strip the Court of its ability to
perform meaningful judicial review since it is left "wonder [ing]
16
whether he considered and rejected them, considered and
discounted them, or failed to consider them at all." Fargnoli,
247 F.3d at 43-44.
Accordingly, the ALJ's ftfailure to consider
and explain his reasons for discounting
1 of the pertinent
evidence before him in making his residual functional capacity
determination" requires remand.
220 F.3d 112, 121 (3d Cir. 2000)
v. Comm'r of Soc. Sec.,
i
see also Adorno, 40 F.3d. at
48 (ordering remand based on ALJ's failure to mention and refute
some of the contradictory medical evidence before him) .
Failure to Incorporate Credibly Established Limitations
The Court also finds that the ALJ's RFC determination lacks
substantial evidentiary support since the ALJ failed to include
restrictions accounting for Plaintiff's moderate limitations in
concentration, persistence, and pace.
The ALJ's restriction to
a "low stress environment" with no need for public interaction
does not suffice to address his own finding that Plaintiff was
moderately limited in those areas and his failure to explain how
this restriction accommodated Plaintiff's limitation requires
remand since his RFC finding does not accurately reflect the
type of work that Plaintiff is able to perform despite her
limitations.
Compare with McDonald v. Astrue, 293 Fed. Appx.
941, 946-47 (3d Cir. 2008) and Menkes v. Astrue, 262 Fed. Appx.
410, 412 (3d Cir. 2008)
("Having previously acknowledged that
[Plaintiff] suffered moderate limitations in concentration,
17
persistence, and pace, the ALJ accounted
these mental
limitations in the hypothetical question by restricting the type
of work to 'simple routine tasks. '") .
As a result of the ALJ's failure to incorporate all of
Plaintiff's credibly established limitations into his RFC
determination, an inaccurate hypothetical was posed to the VE.
See Rutherford v. Barnhart, 399 F.3d 546, 554
(3d Cir. 2005)
("the ALJ must accurately convey to the vocational expert all of
a claimant's credibly established limitations. ") .
Since the
VE's testimony was based on a deficient hypothetical, it cannot
be considered substantial evidence of jobs that exist in
significant numbers in the national economy that Plaintiff is
able to perform.
(3d Cir. 1987)
See Chrupcala v. Heckler, 829 F.2d 1269, 1276
("A hypothetical question must reflect all of a
claimant's impairments that are supported by the record;
otherwise the question is deficient and the expert's answer to
it cannot be considered substantial evidence") i see also Burns
v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).
V.
Conclusion
In short, the Court finds that substantial evidence does
not support the ALJ's evaluation of the medical opinion
evidence, RFC determination or hypothetical to the VE.
Accordingly, the Court finds that substantial record evidence
does not support the ALJ's determination
18
non disability and
the Court hereby remands this case to the Commissioner for
reconsideration consistent with this Order.
s/Alan N. Bloch
United States District Judge
ecf:
Counsel of record
19
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