ILNews

ALJ didn't inform vocational expert on the totality of claimant's limitations

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals reversed a District Court’s upholding of the Social Security Administration’s denial of a woman’s application for benefits because the Administrative Law Judge erred by not including her moderate limitation on concentration, persistence, and pace in the hypothetical he posed to a vocational expert.

Louquetta O’Connor-Spinner applied for Supplemental Security Income and Disability Insurance Benefits in 2004. She suffers from depression, degenerative disc disease, bilateral carpal tunnel syndrome, sleep apnea, restrictive lung disease, and obesity. She claimed her impairments prevented her from working her past jobs as a deli clerk, nurse’s aide, shoe gluer, and fast-food worker, and that she couldn’t perform other jobs in the national economy.

She was examined by two psychologists. The SSA denied her claim, and ALJ found her not to be disabled. During her hearing, the ALJ asked William Cody, a vocational expert, whether a hypothetical worker with certain limitations could perform O’Connor-Spinner’s past jobs or other work in the national economy. None of the hypothetical situations posed by the ALJ included a limitation on concentration, persistence, and pace, which one of the psychologists noted O’Connor-Spinner had and it was caused by her depression. Cody found she couldn’t perform her past work but could find a job doing something else, such as a sedentary cashier. The District Court upheld the decision and later denied O’Connor-Spinner’s motion to alter or amend the judgment.

In Louquetta O’Connor-Spinner v. Michael Astrue, Commissioner of Social Security, No. 09-4083, the 7th Circuit concluded that the ALJ’s hypothetical did not supply Cody with adequate information to determine whether O’Connor-Spinner could perform jobs in the national economy. The judges noted their previous cases have generally required the ALJ to orient the vocational expert to the totality of a claimant’s limitations, and must consider deficiencies of concentration, persistence, and pace, wrote Judge Kenneth Ripple. The judges haven’t insisted that this specific terminology be used in the hypothetical in all cases, such as when a VE is familiar with a claimant’s limitations by reviewing medical records or hearing testimony directly on those limitations.

There’s no evidence in the instant case that Cody reviewed O’Connor-Spinner’s medical history or heard testimony about the limitation. The judges also found it’s not clear whether the hypothetical, which included a restriction to repetitive tasks with simple instructions, would have caused Cody to eliminate positions that would pose significant barriers to someone with depression-related problems in concentration, persistence, and pace.

“…limiting a hypothetical to simple, repetitive work does not necessarily address deficiencies of concentration, persistence and pace,” wrote Judge Ripple. “We acknowledge that there may be instances where a lapse on the part of the ALJ in framing the hypothetical will not result in a remand. Yet, for most cases, the ALJ should refer expressly to limitations on concentration, persistence and pace in the hypothetical in order to focus the VE’s attention on these limitations and assure reviewing courts that the VE’s testimony constitutes substantial evidence of the jobs a claimant can do. In this case, a remand is required.”

The 7th Circuit also ordered the ALJ to clarify his position on whether and to what extent he considered O’Connor-Spinner’s difficulty in taking instructions and responding appropriately to supervisors.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT