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Gayton v. Astrue

May 18, 2009

ANDREW J. GAYTON
v.
MICHAEL J. ASTRUE



The opinion of the court was delivered by: Stewart Dalzell, J.

ORDER

AND NOW, this 18th day of May, 2009, upon consideration of the Honorable Arnold Rapoport's Report and Recommendation (docket entry #11), the defendant's objections, the plaintiff's response to those objections, our independent review of the administrative record, and this Court finding that:

(a) The administrative law judge ("ALJ") determined that the plaintiff suffers from severe back impairment and severe depression, R. at 23;

(b) The ALJ stated that she did not find "any mental impairments that more than mildly affect [the plaintiff's] activities of daily living or more than moderately affect his social functioning and concentration," id;

(c) The ALJ concluded that the plaintiff's depression specifically limited him to jobs that "require only one and two step tasks and do not involve working with the public," R. at 28;

(d) During the administrative hearing, the ALJ posed the following hypothetical to the vocational expert ("VE"): we're looking for a unskilled, strictly unskilled work, simple one- to two-step tasks...taking away work which would have the stress of dealing with the public or much interaction with co-workers...[and] work[ing] at a sedentary exertional level with the option for performing it liberally, either seated or standing R. at 94.

(e) The VE responded that "[l]imiting the person to unskilled, sedentary work and eliminating public contact and regular contact with co-workers, [there are] positions that fall within that category...such as a packer...assembly work...[and] machine operator," R. at 94-95;

(f) Based on VE's testimony, the ALJ found that the plaintiff was not disabled and had the residual functional capacity to perform "unskilled sedentary jobs that can be performed alternating between sitting and standing, require only one and two step tasks, and do not involve working with the public or much interaction with co-workers," R. at 23;

(g) An ALJ's hypothetical to the VE need not include every impairment the plaintiff alleges, but the hypothetical must include all of the credibly established limitations, otherwise the VE's response cannot be considered substantial evidence, Rutherford v. Barnhart, 339 F.3d 546, 554 (3d Cir. 2005);

(h) The plaintiff argued, and Judge Rapoport found, that the ALJ's limitation of one to two step tasks "did not adequately convey" the moderate limitations to the plaintiff's concentration that the ALJ found, Report and Recommendation at 8 (relying on Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004));

(i) In Ramirez, the claimant claimed that she was disabled, in part, because of her anxiety disorder; three different psychiatrists diagnosed her as experiencing often or frequent deficiencies in concentration, persistence, or pace, and limited her to simple, unskilled work, id. at 548;

(j) The ALJ made no adverse credibility determinations concerning the claimant's testimony or the medical records, and found that the claimant often had deficiencies in concentration, persistence, or pace, id. at 549;

(k) Based on these deficiencies, the ALJ limited the hypothetical posed to the VE to those jobs involving "simple one to two step tasks...[with no] travel outside of the workplace...[and a work setting where she could] make or receive personal phone calls" id;

(l) Our Court of Appeals determined that "a requirement that a job be limited to one or two step tasks...does not adequately encompass a finding that [the claimant] 'often' has 'deficiencies in concentration, ...


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