Gallagher v . SSA CV-08-163-PB 4/3/2009

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Leonard Gallagher

Case N o . 08-cv-163-PB Opinion N o .

Michael J. Astrue, Commissioner, US Social Security Administration

MEMORANDUM AND ORDER

Leonard Gallagher has sued the Commissioner of the Social

Security Administration (“SSA”) in an effort to overturn the

Commissioner’s denial of his application for Social Security

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”). Gallagher argues that the presiding

Administrative Law Judge (“ALJ”) (1) mechanically, and

erroneously, applied the age category guidelines; (2) failed to

properly assess Gallagher’s residual functional capacity (“RFC”);

(3) failed to properly formulate a hypothetical question to the

vocational expert (“VE”); and (4) failed to comply with his

responsibility to ask about conflicts in the VE’s testimony.

According to Gallagher, the ALJ’s failures require that the case

be reversed and remanded. The Commissioner objects and moves for

an order reaffirming his decision. For the reasons set forth

below, I remand this case for further proceedings. I . BACKGROUND1

A. Procedural History

On July, 2 6 , 2006, Gallagher filed applications for a period

of disability, DIB, and S S I , with an alleged onset date of April

2 7 , 2006. T r . at 107-12, 113-17, 128. These applications were

denied initially and upon reconsideration. Thereafter, Gallagher

requested a hearing, which was held before ALJ Robert S .

Klingebiel on October 2 4 , 2007.

at 2 7 . At the hearing,

Gallagher, who was represented by counsel, and a vocational

expert testified. Id. at 27-59. On November 3 0 , 2007, the ALJ

denied Gallagher’s claims, finding Gallagher not disabled as

defined by the SSA because, although he was unable to perform his

past relevant work, he was able to perform other work that

existed in significant numbers in the national economy. Id. at

24-26. On March 6, 2008, the Decision Review Board informed

Gallagher that it was unable to consider his claim and that the

ALJ’s decision had become the final decision of the Commissioner.

Tr. 2-4.

B. Gallagher’s Education and Work History

Gallagher was born on May 1 , 1953. Id. at 2 4 . He was 54

years old when the ALJ denied his applications on November 3 0 ,

1 The background information is drawn from the Joint Statement of Material Facts submitted by the parties (Doc. N o . ) and the Administrative Record. Citations to the Administrative Record are indicated by “Tr.”

-2- 2007. Id. at 1 0 7 , 113. He graduated high school and could

speak, read, and write English. Id. at 3 5 , 120. His past

relevant work experience was as a laborer, custodian, and boiler

attendant. Id. at 1 2 2 , 1 4 4 , 159.

C. Medical Evidence

The administrative record contains detailed medical

information and diagnoses of Gallagher’s physical impairments

from 2006 to 2007 by various doctors. What follows is a summary

of the of the medical information contained therein.

Beginning on April 3 0 , 2006, Gallagher made numerous visits

to Androscoggin Valley Hospital and Coos County Family Health

Services for complaints of shortness of breath, coughing,

fatigue, dyspnea, chest pain, and a burning sensation in his

chest. Id. at 199-200, 2 0 2 , 205-218, 226-27, 242-48. During

this period, Gallagher was diagnosed with dyspnea, leukocytosis

of an unclear etiology, chronic obstructive pulmonary disease

(“COPD”), cardiomyopathy, and coronary artery disease. Id. at

147, 199-200, 2 1 8 , 223-24, 227. At varying times throughout this

period, he was admitted into the hospital, underwent numerous

tests, and received prescriptions for drugs including aspirin,

Combient, Nitroglycerine, Gemfibrozil, Prednisone, Wellbutrin,

Albuterol, Toprol Id. at 1 4 7 , 205-18, 2 2 4 , 227. Gallagher was

also encouraged to continue taking Lipitor and to stop smoking.

Id. at 199-200.

-3- On July 13 and 1 4 , 2006, Gallagher underwent a cardiac

catherization and quadruple coronary artery bypass surgery. Id.

237-40, 249-63. On July 17 and 1 8 , 2006 x-ray images of

Gallagher’s chest revealed mild actelectasis consolidation2

through both lung bases and a small right pleural effusion3. Id.

at 249-50.

On August 7 , 2006, D r . Benjamin M . Westbrook saw Gallagher

for a follow up visit after his quadruple bypass surgery. Id. at

220, 273-74. Upon exam, D r . Westbrook noted that Gallagher was

progressing satisfactorily; asked Gallagher to refrain from

smoking; and recommended that Gallagher not return to heavy

construction for at least three months. Id.

On August 3 0 , 2006, Coos County Family Health Services saw

Gallagher for a follow up visit, during which Gallagher reported

that he was experiencing fatigue and weight loss; felt less

discomfort in his chest wall than he did immediately following

his surgery; and that his energy was not what it used to b e , but

was improving. Id. at 265-66. Upon exam, Gallagher was

diagnosed with coronary artery disease and the residual effects

2 Actelectasis is decreased or absent air in the entire or part of the lung, with resulting loss of lung volume. See Stedman’s Medical Dictionary, 161 (27th ed. 2000).

3 Pleural is the membrane enveloping the lungs. See Stedman’s Medical Dictionary, at 1399. Effusion is characterized by increased fluid in a body cavity. See id. at 570.

-4- of quadruple bypass surgery, and was prescribed Toprol. Id.

In September, October, and December of 2006, Gallagher made

visits to Coos County Family Health Services for complaints

including chest cavity pain, a mild upper respiratory infection,

fatigue, and dyspnea upon exertion. Id. at 268-69, 271-72, 287-

89. Gallagher was examined and diagnosed with the residual

effects of quadruple bypass surgery and hypertriglyceridema, and

was prescribed Toprol, Zetia, and Lipitor. Id. at 268-69, 287-

89. Gallagher was told that he could perform work that involved

sitting and shredding paper. Id. at 271-72

On November 3 0 , 2006, D r . Jonathan Jaffe, a non-examining

state agency physician, completed a Physical Residual Functional

Capacity Assessment (“PRFCA”), in which he opined that Gallagher

could lift twenty pounds occasionally and ten pounds frequently;

stand and/or walk for about six hours in an eight hour workday;

sit for about six hours in an eight hour workday; push and pull

without any limitations; and had to avoid concentrated exposure

to fumes, odors, dusts, gases, and poor ventilation. Id. at 275-

79.

On April 4 , 2007, D r . L . Cylus, a non-examining physician

with the Commissioner’s Office of Medical and Vocational

Expertise (“OMVE”), opined that Gallagher’s hypertriglyceridemia

and distal abdominal aorta were non-severe impairments, and that

his coronary artery disease requiring quadruple bypass surgery

-5- was a severe impairment that did not meet or equal an impairment

contained in Appendix 1 , Subpart P of Regulation N o . 4 (“the

listings”. Id. at 294. D r . Cylus further opined that Gallagher

could lift and carry up to twenty pounds occasionally and ten

pounds frequently; sit for six hours at a time and for a total of

eight hours in an eight hour workday; stand for two hours at one

time and for a total of four hours in an eight hour workday; walk

for one hour at one time and for a total of two hours in an eight

hour workday; occasionally climb stairs, ramps, ladders, and

scaffolds; continuously balance; frequently stoop, kneel, crouch,

and crawl; occasionally be exposed to unprotected heights;

frequently be exposed to moving mechanical parts, operation of a

motor vehicle, humidity, wetness, dust, odors, fumes, pulmonary

irritants, extreme cold, extreme heat, and vibrations; and shop,

travel without a companion, ambulate without an assistive device,

walk a block at a reasonable pace on rough or uneven surfaces,

use standard public transportation, climb a few steps at a

reasonable pace with the use of a single hand rail, prepare a

meal and feed himself, care for his personal hygiene, and sort,

handle, and use papers and files. Id. at 295-96, 298-300.

On April 5 , 2007, D r . C . Fratto, a non-examining physician

with the Commissioner’s OMVE, opined that Gallagher suffered from

possible mild COPD, which was non-severe, and that there was no

objective documentation of a pulmonary cause for Gallagher’s

-6- alleged dyspnea. Id. at 293.

On May 2 4 , 2007, Coos County Family Health Services saw

Gallagher, who reported that he felt okay generally and did not

get along with people. Id. at 318-19. Gallagher was diagnosed

with hypertriglyceridemia, and prescribed Metoprolol and Lopid.

Id.

On August 1 6 , 2007, Lynn Chauvette, an occupational

therapist, completed a Functional Capacity Evaluation of

Gallagher, in which she opined that he could perform light work,

defined as lifting twenty pounds occasionally and ten pounds

frequently, with some abilities in the medium work category,

defined as lifting twenty to fifty pounds occasionally and ten to

twenty-five pounds frequently; sit frequently; occasionally

stand, walk, stoop, kneel, reach forward and above shoulder

level, perform activities requiring manual dexterity, and

complete stairs; and not perform work that involved balancing or

the manipulation of very fine objects at a competitive rate. Id.

at 347-49, 352. Chauvette recommended that Gallagher explore job

opportunities for light work where the primary work position was

seated, with bending and kneeling kept to short periods of time

with breaks to stand or walk, and no slippery, wet, narrow,

elevated or erratically moving surfaces. Id. at 349.

On September 1 7 , 2007, Coos County Family Health Services

saw Gallagher, who complained of fatigue, a lack of endurance,

-7- difficulty balancing, and back pain. Id. at 325-26.

D. Testimony of Plaintiff

Gallagher, who was represented by counsel, testified at the

hearing that he could not work five days per week because he was

exhausted. Id. at 36-37. He stated that he had undergone

successful quadruple bypass heart surgery, as a result of

coronary artery disease. Id. at 4 2 . Gallagher testified that

his stamina did not return to the same level as it was prior to

that surgery. Id. at 42-43. He stated that he had suffered

shortness of breath upon exertion, which made it difficult for

him to climb stairs and be on his feet. Id. at 4 3 . He testified

that he took Lipitor, Toprol, and Zetia to control his

cholesterol, as well as nitroglycerine and aspirin for his

coronary artery disease. Id. at 45-47. Gallagher also testified

that his daily activities included preparing meals, taking a

shower, walking roughly a mile, doing a few household chores,

watching television, and occasionally getting together with

family and friends. Id. at 47-49.

E. Testimony of Vocational Expert

The ALJ asked the VE to consider a worker who is currently

54 years of age, with a high school education, some work that had

been done in the boiler tending position that was considered

semiskilled, and other unskilled work background; could lift

twenty pounds occasionally; could sit, stand, and walk during a

-8- typical day, excluding breaks; and could not be exposed to

extremes of temperature, poor ventilation, fumes, or dust. Id.

at 5 2 . The VE testified that such a person could not perform

Gallagher’s past relevant work, but that he could perform “pretty

much a full range of light work” including as an assembler of

small products (600 positions in New Hampshire and 750,000

positions nationally); an electronics worker (300 positions in

New Hampshire and 720,000 nationally); and price marker (200

positions in New Hampshire and 450,000 nationally). Id. at 52-

54. The VE cited to the DOT as his source for this job

information. Id. at 53-54. Upon questioning by Gallagher’s

attorney, the VE further testified that these jobs are classified

as light work and if an individual could not walk for two hours

total in an eight hour workday, he could not perform these jobs.

Id. at 55-56. The VE also noted that the ability to perform

light work, by definition, entails the ability to stand and walk

for six hours in an eight hour workday. Id. at 5 5 .

The ALJ then re-examined the VE and sought further

clarification regarding the assembler and electronics worker

positions. Id. at 5 6 . The VE testified that these positions are

light jobs primarily because of the lifting requirements and that

the walking requirement of two hours in an eight-hour day is from

the DOT classification of light work. Id. at 56-57. The final

exchange that occurred between the ALJ and VE was as follows:

-9- [ALJ] Okay. S o , now, in these jobs, assembler and the electronics worker, do you feel that if someone were able to stand and walk a total of six hours in a day, and that they could, in fact, walk a total of two hours during a day, but these are short, small distance walking in a day; in other words, we’re talking about prolonged walking where someone might have to walk for, say, 15 or 20 minutes at one time, or -- is the walking relatively short in terms of duration? [VE] In most settings, there’d be a sit/stand option, and walking would be for short durations, because you’re -- it’s performing bench work in assembly. S o , the walking is more by definitional requirements for light work -- [ALJ] Okay. [VE] -- than as it would apply to those two positions.

Id. at 5 7 .

F. ALJ’s Decision

The ALJ conducted the five-step sequential evaluation

process set forth in

to determine whether

Gallagher was disabled. At step one, the ALJ determined that

Gallagher had not engaged in substantial gainful activity since

his alleged onset date of his disability on April 2 7 , 2006.

at 1 8 . At steps two and three, the ALJ determined that Gallagher

had a severe impairment consisting of coronary artery disease,

but that he did not have any impairment or combination of

impairments that met or medically equaled a listing under the

Commission’s listings of impairments. See 20 C.F.R. P t . 404

Subpt. P, App. 1 . The ALJ determined at step four that Gallagher

could not return to his past relevant work. T r . at 2 4 . However,

utilizing the testimony of a vocational expert at step five, the

ALJ concluded that Gallagher was not disabled because jobs exist

-10- in the national economy in significant numbers that Gallagher was

capable of performing in spite of his impairments. Id. at 25-26.

In making these determinations, the ALJ found that Gallagher

retained the RFC to perform light work involving heavy lifting

twenty pounds occasionally; sitting, standing, and/or walking

during the workday; and no exposure to environments with very

poor ventilation or a high concentration of fumes. Id. at 2 0 .

The ALJ also found that Gallagher “was 52 years old, which is

defined as an individual closely approaching advanced age, on the

alleged disability onset date.” Id. at 2 4 .

I I . STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the transcript of the

administrative record and enter a judgment affirming, modifying,

or reversing the decision of the ALJ. My review is limited to

determining whether the ALJ used the proper legal standards and

found facts based upon the proper quantum of evidence. Ward v .

Comm’r of Soc. Sec.,

5 2 , 655 (1st Cir. 2000); Nguyen v .

Chater,

1 , 35 (1st Cir. 1999).

The ALJ’s findings of fact are accorded deference as long as

they are supported by substantial evidence. Ward,

. Substantial evidence to support the ALJ’s factual findings

exist “if a reasonable mind, reviewing the evidence in the record

-11- as a whole, could accept it as adequate to support his

conclusion.” Irlanda Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991) (quoting Rodriguez v . Sec’y of

Health & Human Servs.,

1 8 , 222 (1st Cir. 1981)). If

the substantial evidence standard is met, the ALJ’s factual

findings are conclusive even if the record “arguably could

support a different conclusion.” Irlanda Ortiz,

The ALJ’s findings are not conclusive, however, if they are

derived by “ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen, 172 F.3d at 35

The ALJ is responsible for determining issues of credibility

and for drawing inferences from evidence in the record. Irlanda

Ortiz,

. It is the role of the ALJ, not the role

of this court, to resolve conflicts in the evidence.

III. ANALYSIS

A five-step sequential process is used to determine whether

a claimant is disabled within the meaning of the SSA. See

. The claimant bears the burden of proof on

step one through four, but then the burden shifts to the

Commissioner to establish that there are a significant number of

jobs in the national economy that the claimant can perform.

Goodermote v . Sec’y of Health & Human Servs.,

, 7

(1982). In this case, the ALJ, acting for the Commissioner,

-12- found in Gallagher’s favor on each of the first four steps, but

concluded at the fifth step that there was work that Gallagher

could perform and denied his application for benefits. The ALJ’s

step five decision was informed by his determination of

Gallagher’s age and RFC, as well as the testimony of a VE as to

jobs in the national economy that Gallagher was capable of

performing.

Gallagher argues that the ALJ erred at the fifth step in

four ways. First, Gallagher alleges that the ALJ mechanically

and erroneously applied the age category guidelines. Second,

Gallagher challenges the ALJ’s RFC determination because he

claims that it violates requirements of Social Security Ruling

(“SSR”) 96-8p. Third, Gallagher alleges that the ALJ provided

the VE with an inaccurate hypothetical that did properly account

for his limitations. Fourth, Gallagher argues that the ALJ erred

by failing to inquire about a conflict between the VE’s testimony

and the Dictionary of Occupational Titles. Gallagher alleges

that these failures require the case to be remanded. I address

each of these alleged errors in turn.

A. Borderline Age Situation

Gallagher was born on May 1 , 1953 and was fifty-four years,

seven months old when the ALJ rendered his decision on November

3 0 , 2007. Gallagher contends that the ALJ erred by failing to

consider his borderline age situation, where Gallagher was only

-13- five months from his fifty-fifth birthday.

When the findings relative to a claimant’s vocational

factors (i.e., age, education, and work experience), in

combination with the claimant’s RFC, coincide with all of a

particular rule under the Medical Vocational Guidelines (“the

Grids”), that rule may be relied upon at step five to direct a

conclusion that a claimant is or is not disabled. See 20 C.F.R.

P t . 4 0 4 , Subpt. P, App. 2 , § 200.00. The regulations separate

persons into three categories by age: “younger person,” refers to

individuals under age fifty; “person closely approaching advanced

age,” refers to individuals between the ages of fifty and fifty-

four; and “person of advanced age,” refers to persons age fifty-

five and older. See

(c)-(e), 416.963(c)-

(e). Persons of “advanced age” are subject to “special rules” as

such age “significantly affects a person’s ability to adjust to

other work.”

(e), 416.963(e).

An individual’s age category is what is used when the Grids

are consulted. However, the regulations make clear that the age

categories should not be applied mechanically in borderline

situations. See

(b), 416.963(b). If an

individual is

within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that [the individual is] disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.

-14-

A borderline age situation exists when (1) the claimant is

within a few days or months of a higher age category; and (2) use

of the higher age category would result in a finding of

disability. See Application of the Medical-Vocational Guidelines

in Borderline Age Situations, Soc. Sec. Admin., Office of

Hearings and Appeals, Hearings, Appeals and Litigation Law Manual

(HALLEX) II-5-3-2. If such a situation exists, it is within the

adjudicator’s discretion to decide whether it is more appropriate

to use the higher age category or the claimant’s chronological

age. Id.; see also Crady v . Sec’y of Health & Human Servs.,

1 7 , 622 (6th Cir. 1987).

The First Circuit has not weighed in on either the range of

months that place a claimant within the borderline category or

whether and the extent to which an ALJ must address the

borderline-age issue in a decision or at a hearing. Although the

courts have varied in their interpretation of in what period of

time the borderline range falls, “the general consensus is that

‘the borderline range falls somewhere around six months from the

older age category.’” Furtado v . Astrue,

, at *10

(D.R.I. Jul. 2 5 , 2008)(quoting Swan v . Barnhart,

,

at *9 (D. M e . April 3 0 , 2004)). Accepting this “general

consensus,” Gallagher, who was five months from reaching his

fifty-fifth birthday when the ALJ reached his decision, was

within the borderline range of the advanced age category. An

-15- individual of advanced age with an RFC for light work is deemed

disabled unless he has significant transferable skills. 20

C.F.R. P t . 4 0 4 , Subpt. P, App. 2 § 202.00(c). Thus, if Gallagher

was placed in the advanced age category, because he had an RFC

for a limited range of light work and no evident transferable

skills, the Grids would have dictated a finding of disabled.

Accordingly, although Gallagher was not necessarily entitled to

placement in the advanced age category, at a minimum, he was

entitled to consideration of his borderline-age status. See

(b)

The First Circuit has not addressed the issue of whether an

ALJ is required to acknowledge and discuss whether potential

borderline cases fall within that category. Further, it appears

that the other circuit and district courts have not reached a

consistent conclusion on this issue. See Bowie v . Comm’r of Soc.

Sec.,

(6th Cir. 2008)(holding that there is not a

per se procedural requirement that an ALJ must address borderline

age categorization and explain his thought process in every

borderline case); Daniels v . Apfel,

(10th Cir.

1998)(holding that the Commissioner has the burden of showing

what age category should apply and hearing officers are required

to provide a record of their determination regarding 404.1563

requirements); Crawford v . Barnhart,

(D.D.C.

2008) (remanding because the ALJ should have recognized a

-16- borderline age situation and explicitly considered the

appropriateness of the older age category, even though the ALJ

called a vocational expert); Justice v . Astrue,

(D. Mass. 2008) (remanding because the hearing officer’s

decision provided no record of his consideration of the potential

borderline age situation).

I find that the ALJ need not explain his determination to

use the claimant’s chronological age and not apply the older age

category. See HALLEX II-5-3-2. However, the ALJ must provide

some indication that he at least considered borderline age

categorization in order for the court to adequately determine

that the decision was not made “mechanically” in violation of

section 404.1563(b). In the present case, although the ALJ asked

the VE to consider an individual currently 54 years of age at the

hearing, when determining that Gallagher was an individual

closely approaching advanced age in his decision, the ALJ

appeared to consider Gallagher’s age of 52 on the alleged

disability onset date rather than his age at the time of the

decision.4 See T r . at 24 (Finding 7 ) . This apparent mistake on

4 In the present case, Gallagher’s age at the date of decision is the relevant age to consider. For SSI purposes, entitlement to borderline-age consideration is measured as of the date of the ALJ’s decision. See Swan,

, at *9 n.12 (citing Crady v . Sec’y of Health & Human Servs.,

(6th Cir. 1987)). While for SSD purposes, it is measured from the claimant’s date last insured. See

Here, because Gallagher met the insured status requirements of the SSA through December 3 1 , 2011, his age at the date of decision is the

-17- the ALJ’s part, in addition to the fact that the ALJ never

addressed the borderline-age issue in his decision or at the

hearing, makes it impossible to determine whether the ALJ applied

section 404.1563(b) and considered the appropriateness of the

older age category for Gallagher. Because the ALJ did not

provide any indication that he considered Gallagher’s borderline

age categorization, I remand this case for proper consideration.

B. RFC Determination

Gallagher alleges that the ALJ’s RFC determination violates

requirements of SSR 96-8p because it lacks specificity in

articulating his sitting, standing, and walking capacities and

fails to account for his hand dexterity deficits as limitations.

An RFC finding represents the most an individual can do

despite his or her limitations.

(a)(1). The

SSA has specified that assessment of RFC must involve a function-

by-function consideration of each work-related ability before

expressing the RFC in terms of the exertional categories of

“sedentary,” “light,” and so forth. SSR 96-8p,

,

at *3 (1996); see also Ferraris v . Heckler,

8 2 , 586-87

(2d Cir. 1984)(holding that the ALJ’s findings on a claimant’s

RFC were insufficient where the ALJ determined the claimant’s RFC

in a conclusory manner without a function-by-function

appropriate age to consider for both SSI and SSD claims, not his age at the date of application or administrative hearing. See Justice, 576 F.Supp.2d at 203

-18- assessment). In addition, the ALJ must specify the evidentiary

basis for his RFC determination. SSR 96-8p,

, at

* 7 ; see also White v . Sec’y of Health & Human Servs.,

4 , 65 (2d Cir. 1990) (noting that an ALJ’s failure to specify a

basis for an RFC determination is a sufficient reason to vacate a

decision of the Commissioner). Furthermore, the ALJ may not

ignore relevant evidence, especially when that evidence supports

the claimant’s cause. See Nguyen, 172 F.3d at 35

In this case, Gallagher first claims that the ALJ’s RFC

finding is vague and does not relate to any function-by-function

assessment as required by SSR 96-8p. I disagree. The ALJ made

the following RFC determination:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work. He can lift 20 pounds occasionally and sit, stand and/or walk during the workday. Exposure to environments with very poor ventilation and a high concentration of fumes should be avoided.

Tr. at 2 0 . Although this finding does not specify the precise

time limitations on Gallagher’s abilities to sit, stand, and

walk, the ALJ discussed these functional abilities in the body of

his opinion. The ALJ detailed the functional assessments and

opinions of M s . Chauvette, D r . Jaffe, and D r . Cylus,

acknowledging the weight being given to each opinion. Id. at 22-

23. Both parties concede that, given the ALJ’s discussion, it

can be inferred that the ALJ adopted the opinion of D r . Cylus and

-19- the specific functional limitations noted therein. See Pl.’s

Mot. at 4 (“Given the fact that the ALJ gave ‘greater weight’ to

Dr. Cylus, it may be safely inferred that he adopted that

consultant’s limitations on standing and walking.”); Def.’s Mot.

at 11 (“[A]lthough the ALJ did not explicitly describe the

maximum amount of time Plaintiff could stand and walk, the ALJ’s

decision establishes that he concluded that Plaintiff could

perform those activities in accordance with D r . Cylus’ opinion .

. . .”). Thus, although the ALJ did not specifically note

Gallagher’s functional limitations in his finding, because he

relied on the opinion and functional assessment of D r . Cylus in

the body of his decision, the ALJ met the requirements of SSR 96-

8p when determining Gallagher’s RFC. See Onishea v . Barnhart,

(5th Cir. 2004) (ALJ met the legal standard of 96-

8p by basing his RFC assessment, in part, on the state examiner’s

function-by-function analysis).

Next, Gallagher alleges that the ALJ’s RFC finding fails to

properly account for the hand dexterity, standing, and walking

limitations detailed in M s . Chauvette’s functional capacity

evaluation. I disagree with Gallagher. The ALJ clearly

considered M s . Chauvette’s opinion and specifically noted that he

only gave her report weight “inasmuch as it finds the claimant

able to perform light work.” T r . at 22-23. Thus, the ALJ did

not give weight to the specific functional limitations found by

-20- M s . Chauvette. Further, the ALJ’s decision not to give weight to

M s . Chauvette’s limitation findings was not inappropriate because

the findings were inconsistent with other evidence in the record.

See

. In particular, D r . Jaffe and D r . Cylus

found that Gallagher had no manipulative limitations and had

greater standing and walking capabilities than found by M s .

Chauvette. T r . at 276-78, 296-97. More notably, Gallagher

testified to the ability to do handyman type work, indicated that

his heart problem was his only impediment to work, and, in both

Function Reports, reported no problems using his hands.

at

3 5 , 4 4 , 1 4 0 , 172.

For all of the aforementioned reasons, I disagree with the

assertions that the ALJ improperly assessed Gallagher’s RFC.

C. Hypothetical Question to the VE

As in the present case, the ALJ often meets the step five by

relying on the testimony of a vocational expert.

But in order for a vocational expert’s answer to a hypothetical question to be relevant, the inputs into that hypothetical must correspond to conclusions that are supported by the outputs from the medical authorities. To guarantee that correspondence, the Administrative Law Judge must both clarify the outputs (deciding what testimony will be credited and resolving ambiguities), and accurately transmit the clarified output to the expert in the form of assumptions.

Arocho v.Sec’y of Health & Human Servs.,

7 4 , 375 (1st

Cir. 1982). Gallagher alleges that the ALJ provided the VE with

an inaccurate hypothetical that did not correspond with his

-21- limitations and thus, the VE’s testimony provided no support for

the ALJ’s disability finding at step five.

In this case, the ALJ’s clarification of the outputs came in

the form of his RFC finding, which, as noted above, incorporated

the functional limitations found by D r . Cylus. Thus, to be

satisfactory, the hypothetical question to the VE also needed to

incorporate the functional limitations found by D r . Cylus.5 The

ALJ initially asked the VE to consider an individual who, inter

alia, “is able t o , for the most part, sit, and stand, and walk,

during a typical day, perhaps excluding a mid-morning break, and

a mid-afternoon break, and a lunch break.” T r . at 5 2 . This

question was undoubtedly too vague and did not incorporate the

precise limitations outlined by D r . Cylus and accepted by the

ALJ. Specifically, this hypothetical fails to include inputs

reflecting Gallagher’s limitations to standing for two hours at

one time and for a total of four hours in an eight hour workday,

and walking for one hour at a time and for a total of two hours

in an eight hour workday. However, follow up questions by

Gallagher’s attorney and re-examination by the ALJ incorporated

more limitations for the VE to consider.

5 Gallagher also argues that the hypothetical question to the VE should incorporate the hand dexterity limitations found by M s . Chauvette. However, a hypothetical question need only include impairments and limitations that have been incorporated into an appropriate RFC finding. Because I have concluded that the ALJ properly excluded M s . Chauvette’s specific findings from his RFC, those limitations need not be reflected into the ALJ’s hypothetical question to the V E .

-22- The VE noted that the jobs of assembler of small products,

electronics worker, and price marker were all classified as light

jobs, which generally require standing and walking six hours in

an eight-hour workday.

at 5 5 . Next, the VE stated that if

an individual were unable to walk for two hours they could not

perform in these occupations, but then clarified that this

limitation was for people who could not walk a total of two hours

in an eight-hour day.

. Finally, in response to a

question from the ALJ about whether someone who could stand and

walk for a total of six hours in a day and walk for a total of

two hours during a day for only 15 or 20 minutes at a time could

perform the jobs of assembler or electronics worker, the VE

responded: “In most settings, there’d be a sit/stand option, and

walking would be for short durations, because you’re – it’s

performing bench work in assembly. S o , the walking is more by

definitional requirements for light work . . . than as it would

apply to those two positions.”

at 5 7 .

The Commissioner argues that this last exchange incorporates

Gallagher’s walking limitations and that although the ALJ never

clarified Gallagher’s precise time limitations on standing, this

is not reversible error because the VE noted that the identified

jobs had a sit/stand option in most settings. See Caldwell v .

Barnhart,

8 8 , 190 (11th Cir. 2008) (holding that

ALJ’s failure to discuss limitations was not reversible error

-23- because the limitation would not affect the claimant’s ability to

perform one of the jobs identified by the V E ) . However, I agree

with Gallagher that the examination of the VE left the issue of

the walking and standing abilities required for the jobs in

question confused and that the VE’s final response was equivocal.

Thus, it is not clear that the jobs identified at step five do

not require the performance of tasks exceeding Gallagher’s

limitations as found in his RFC and the VE’s testimony cannot be

relied upon to meet the Commissioner’s step five burden. A

remand is necessary to clarify the VE’s testimony.

D. Variance between VE Testimony and DOT

Gallagher also argues that remand is required because of a

conflict between the DOT and the VE’s testimony. More

specifically, Gallagher argues that the VE’s testimony relating

to sitting, standing, and walking limitations for these jobs

conflicted with the DOT listings and that SSR 00-4p required the

ALJ to inquire about the conflicting information he received, and

explain how he resolved the inconsistencies. See SSR 00-4p,

, at * 2 . However, the ALJ provided no such explanation

because he found the VE’s testimony to be consistent with the

information contained in the DOT. T r . at 2 5 . Because I find

remand is necessary to clarify the VE’s testimony, I need not

address this issue.

-24- IV. CONCLUSION

For the foregoing reasons, I grant in part Gallagher’s

motion to reverse (Doc. N o . 8 ) , deny the Commissioner’s motion to

affirm (Doc. N o . 9 ) , and pursuant to sentence four of

(g), remand this case to the Social Security Administration.

The clerk is directed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 3 , 2009

cc: Seth Aframe, Esq. Karen Fitzmaurice, Esq. Francis M . Jackson, Esq.

-25-