Nicholas Malfitano Jul. 13, 2015, 2:34pm


ALLENTOWN – A federal judge on Tuesday overturned a decision of an administrative law judge from the Office of Disability Adjudication and Review, leading a dispute over disability benefits to be remanded to the office of the Acting Commissioner of Social Security.

Per the ruling of Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania, Wendy A. Westwood’s application for social security and disability benefits has been remanded to the office of Social Security Acting Commissioner Carolyn W. Colvin.

Westwood was 43 years old when her alleged disability began and was 47 years old on the date of the administrative hearing. A high school graduate, her professional background included work as a data entry worker, office clerical worker, and kennel assistant.

Per Pratter’s interpretation of the law as written, it showed Westwood needed to prove her disability in a conclusive manner.

“A claimant bears the burden of proof on the issue of disability. In other words, a claimant must show that he or she is unable to engage in ‘any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months,” Pratter said.

“The claimant satisfies the burden of proving disability by showing an inability to return to their past relevant work. Once the claimant makes this showing, the burden shifts to the Commissioner to show that, given the claimant’s age, education, and work experience, the claimant has the ability to perform specific jobs existing in the economy."

At an administrative hearing before the ALJ on Oct. 25, 2012, Westwood testified that she suffers from fatigue, the cause of which is still unknown. Westwood described her episodes of fatigue as “inconsistent and unpredictable, sometimes lasting for a day and sometimes lasting for weeks.” Westwood also testified that she experiences “anxiety, depression, and panic attacks, and feels disoriented and anxious in public crowds as well as around family members.”

“During the same hearing, the ALJ asked a vocational expert to consider whether jobs exist in the national economy for an individual of Westwood’s age, education and background, with no exertional limitations, a claimed need to avoid temperature extremes, ability to perform only routine, repetitive tasks, to tolerate no more than occasional contact with co-workers and supervisors, and ability to tolerate only infrequent changes in the work setting,” Pratter said.

The vocational expert responded an individual afflicted with such conditions could perform the jobs of document preparer (350 positions in the local economy, 175,000 nationally); cleaner/housekeeper (550 positions locally, 760,000 nationally); and store laborer (260 positions locally, 155,000 nationally). The vocational expert also testified that a person could not work if he or she would be absent from work three days each month and that if a person’s inability to maintain attention and concentration resulted in a 20 percent decrease in productivity, he or she would be “on the cusp of unemployability.”

On Nov. 7, 2012, the ALJ denied Westwood’s claim for disability insurance benefits and Social Security income. In that decision, the ALJ concluded that Ms. Westwood’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however her statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible…”

But despite the ALJ’s promise to discuss this finding, the ALJ did not clearly explain which of Ms. Westwood’s purported symptoms (e.g., extreme fatigue) were credibly established and which were not, Pratter ruled.

“At the same time, the ALJ assigned significant weight to the opinion of the state agency psychologist, who found that Ms. Westwood has moderate difficulties in maintaining concentration, persistence, or pace, and experiences symptoms of depression, anxiety, and fatigue,” Pratter recounted.

Pratter reported an appeals group denied Westwood’s application in April of last year, leading to an evaluation of the case by a U.S. Magistrate Judge.

“The case was referred to U.S. Magistrate Judge Carol Sandra Moore Wells for a Report and Recommendation, and Wells recommended granting Westwood’s request for review, solely on the grounds that the ALJ failed to craft an adequate residual functional capacity or pose a proper hypothetical to the vocational expert. The defendant has objected to that recommendation,” Pratter said.

A previous opinion rendered by Wells had suggested sending the case back to the Social Security Administration.

“[U.S. Magistrate Judge Carol Sandra Moore] Wells recommends remand and concludes that the ALJ committed reversible error by not ‘explicitly including’ Ms. Westwood’s moderate difficulties with concentration, persistence, or pace ‘both in the residual functional capacity and in the hypothetical question posed to the vocational expert,” Pratter explained.

Though the defendant objected to this rationale, Pratter concurred with Wells.

“The ALJ found, after apparent careful consideration of Ms. Westwood’s medical records, ‘that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible as discussed in detail below.’ Unfortunately, in the discussion that followed, the ALJ did not clearly explain which aspects of Ms. Westwood’s purported symptoms were credibly established and which were not,” Pratter said.

“Because the ALJ failed incorporate into the residual functional capacity or the hypothetical posed to the vocational expert Ms. Westwood’s apparent moderate difficulties with pace resulting from her extreme fatigue, the ALJ’s determination is not supported by substantial evidence and defendant’s objections are overruled."

Pratter felt the ALJ had not considered all of the evidence before making its determination.

“The Court is not convinced that the ALJ ‘gave the vocational expert enough information to provide a sound opinion about the types and numbers of jobs that were available,’ because the ALJ found credible evidence in the record showing that Ms. Westwood has moderate difficulties with concentration, persistence, or pace that were not reflected in the residual functional capacity or the hypothetical posed to the vocational expert,” Pratter said.

“As a result, the Court will remand this matter to the ALJ for the determination of a residual functional capacity and the crafting of a hypothetical that more precisely conveys the nature of Ms. Westwood’s moderate difficulties with concentration, persistence, or pace in light of the apparently credible evidence of Ms. Westwood’s extreme fatigue. Because the ALJ’s hypothetical was flawed, it cannot serve as substantial evidence to support the ALJ’s determination and remand is warranted."

The plaintiff is represented by Judith A. Dexter, in Bethlehem.

The defendant is represented by Andrew C. Lynch, of the Social Security Administration’s Office of General Counsel Region 3, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 5:14-cv-03035

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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