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

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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.
 

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  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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