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

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.