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King v. Astrue

April 24, 2009

CATHERINE KING, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI"). Because the Agency's decision that Plaintiff was not disabled is not supported by substantial evidence, the decision is reversed and the case is remanded.

On February 15, 2005, Plaintiff applied for SSI benefits. (Administrative Record ("AR") 18.) The Agency denied the applications initially and on reconsideration. (AR 19-32.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 33-35.) On April 16, 2007, Plaintiff appeared with counsel at the hearing and testified. (AR 185-209. ) On August 4, 2007, the ALJ issued a decision denying the application. (AR 7-16.) After the Appeals Council denied Plaintiff's request for review, (AR 2-4), she commenced this action.

Plaintiff claims that the ALJ erred by: 1) misconstruing the testimony of the vocational expert; 2) failing to properly consider her past relevant work; 3) failing to make clear whether he accepted or rejected the opinions of two treating doctors (Dr. Tung Huynh and Dr. Andrew Song); and 4) failing to defer to another treating doctor's opinion that Plaintiff was disabled. (Joint Stip. at 3-4, 6-9, 11-13, 14-16.) For the following reasons, the Court finds that the ALJ erred in interpreting the vocational expert's testimony and in failing to set forth the requirements of Plaintiff's past work as a receptionist.

In her first claim of error, Plaintiff contends that the ALJ erred when he concluded that the vocational expert testified that she was capable of performing her past work as a receptionist. (Joint Stip. at 3-4.) The Court agrees.

The ALJ found that Plaintiff suffered from a mental impairment which caused more than mild but less than moderate difficulties in activities of daily living, maintaining social functioning, and concentration, persistence, and pace. (AR 13.) He then concluded that, despite these limitations, Plaintiff could perform her past work as a receptionist. (AR 16.) He based this conclusion on his reading of the vocational expert's testimony that she could:

Hypothetically assuming the claimant's residual functional capacity as found above and assuming that the mental limits are closer to mild than moderate, the vocational expert opined that the claimant is able to perform her past relevant work as receptionist, both as actually done and as generally done in the national economy. I accept the testimony of the vocational expert and so find. Since [Plaintiff] can return to past relevant work, she is not under a "disability" . . . . (AR 16.)

On closer examination, however, it appears that the vocational expert did not testify that Plaintiff could perform her past work if she suffered from the mild to moderate mental impairment found by the ALJ. The ALJ posed a hypothetical question to the vocational expert, seeking to determine whether a person with Plaintiff's physical capacity, but without any mental limitations, could perform her past work. (AR 206.) The vocational expert's answer to this question is unclear in the transcript, because, it appears, the answer was not transcribed correctly. (AR 206.) According to the transcript, the vocational expert testified: "Sedentary are the reception work would remain appropriate with those limitations as customarily performed." (AR 206.) This response is not critical to understanding the issue, however, because the ALJ followed up with a different hypothetical, which included his finding regarding mild to moderate mental limitations:

Q: And a second hypothetical, if we assume the same physical limitations as in the first hypothetical and we assume a mental impairment that more than mildly but less than moderately limits the capacity of daily living activities, social functioning and the capacity to maintain concentration, persistence, and pace. Can that hypothetical person perform the past, past work of the claimant?

A: It's not clear to me enough, Your Honor, to offer an opinion."

(AR 206.)

Thus, the vocational expert testified that he was unable to offer an opinion as to whether Plaintiff could perform her past work as a receptionist, assuming that she was limited by more than mild but less than moderate mental limitations. Though the ALJ did continue to question the vocational expert following this testimony, as can be seen from the excerpt of the transcript that follows, those questions dealt only with whether Plaintiff could perform other jobs in the economy, not her past job as a receptionist:

Q: Is there other work in the national economy that such a hypothetical person could do?

A: Difficult to say in that I don't know where, between mild and moderate, would be ...


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