Thursday, September 29, 2011

disability - hypothetical question - all limitations

Lucero v. Astrue - ED Pa. - September 26, 2011

For the ALJ’s decision to be supported by substantial evidence, the hypothetical question to the vocational expert must “accurately convey all of [the claimant’s] impairments, and the
limitations they cause.”36 In Ramirez v. Barnhart, the Third Circuit held that including a requirement that a job be limited to one- to two-step tasks did not adequately encompass a
finding that the claimant “often” had deficiencies in concentration, persistence, or pace.37

As the Commissioner correctly notes, the functional scale used to assess concentration, persistence, or pace was changed after the ALJ’s decision in Ramirez. Both the old and new scales comprise five levels of limitation, with “often” at the third level on the old scale, and “moderate” at the third level on the revised scale.38 Therefore, some courts have found “often” and “moderate” to represent equivalent limitations, which must be included in the hypothetical question with specificity.39

Although the hypothetical question here did not refer specifically to Plaintiff’s moderate limitations in concentration, persistence, and pace, it did include limitations to simple repetitive
tasks, with only occasional changes in work setting and occasional contact with the public and coworkers; some courts have found such limitations sufficiently descriptive.40 However, even if
these limitations could be said to encompass moderate limitations in concentration, persistence, and pace in some cases, here the hypothetical question failed to incorporate the ALJ’s finding that Plaintiff had exhibited one or two episodes of decompensation, a term which “refers to exacerbations or temporary increases in symptoms or signs, accompanied by a loss of adaptive functioning.”41 Because the Court finds that the ALJ’s hypothetical question did not adequately encompass all of Plaintiff’s limitations, the case will be remanded to the Commissioner.42


36 Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004).

37 Id. at 552.

38 Strouse v. Astrue, No. 07-4514, 2010 WL 1047726, at *6 (E.D. Pa. Mar. 19, 2010), citing Colon v. Barnhart, 424 F. Supp. 2d 805, 811 (E.D. Pa. 2006); Dynko v. Barnhart, No. 03-3222, 2004 WL 2612260 (E.D. Pa. Nov. 16, 2004). However, in an unpublished decision, the Third Circuit distinguished the holding in Ramirez in part by reference to the “often” limitation in that case as opposed to the “moderate” limitation before it. McDonald v. Astrue, 293 F. App’x 941, 946 n.10 (3d Cir.2008) (not precedential). In McDonald, however, the Court found that
there was no support in the record for the claimant’s complaints, but instead, evidence to the contrary. Gayton v. Astrue, No. 08-3667, 2009 WL 1456608, *3 (E.D. Pa. May 19, 2009).

39 Strouse, 2010 WL 1047726 at * 6; Weinsteiger v. Astrue, No. 09-1769, 2010 WL 331903, *10 (E.D. Pa. Jan. 25, 2010); Bunch v. Astrue, No. 08-cv-487, 2008 WL 5055741, * 3 (E.D. Pa. Nov. 26, 2008) (citing cases).

40See Douglas v. Astrue, 2011 WL 482501, at *5 (E.D. Pa. Feb. 4, 2011) (holding that hypothetical limiting the claimant to unskilled work adequately accounted for moderate limitations in concentration, persistence, and pace); Reid v. Astrue, No. 08-300, 2009 WL 2710243,at *7 (E.D. Pa. Aug. 28, 2009) (holding that “because the record does not suggest that Plaintiff’s moderate difficulties in ‘concentration, persistence, and pace” would limit Plaintiff’s ability to perform ‘simple, repetitive tasks,’ there was valid justification for the ALJ’s omission of more
specific references in the hypothetical”).

41 R. 58.

42 Cf. Russo v. Astrue, 421 F. App’x 184, at *7 (3d Cir. 2011) (not precedential) (holding that a hypothetical question that included the limitation that the person “would not have a quota to fulfill” accounted for moderate difficulties with concentration, persistence, pace, and decompensation episodes).