Disability Benefits – Flawed Hypothetical

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Civil

7^th Circuit Court of Appeals

Officials: ROVNER, WILLIAMS, and TINDER, Circuit Judges.

Disability Benefits – Flawed Hypothetical

No. 14-2122

Hypothetical posed to a vocational expert in an administrative proceeding to determine disability benefits must incorporate all of claimant’s limitations supported by the medical record.

“Here, there is medical evidence in the record that Varga has moderate difficulties maintaining concentration, persistence, and pace. Most notably, Dr. Rattan’s assessment of Varga’s mental RFC for the state agency noted moderate difficulties in seven areas related to concentration, persistence, and pace: (1) understanding and remembering detailed instructions; (2) carrying out detailed instruction; (3) maintaining attention and concentration for extended periods; (4) completing a normal workweek without interruption from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; (5) accepting instructions and responding appropriately to criticism from supervisors; (6) getting along with coworkers without distracting them or exhibiting behavioral extremes; and (7) responding appropriately to changes in the work setting. In his decision, the ALJ “concur[red]” with the assessment of Varga’s mental state made by the state agency, and this assessment is presumably what led the ALJ to find that Varga had moderate difficulties with regard to “concentration, persistence, or pace” at steps two and three of his sequential analysis. However, the ALJ did not address all of these difficulties in his hypothetical question to the vocational expert. Because a hypothetical posed to a VE must incorporate all of the claimant’s limitations supported by the medical record—including moderate limitation in concentration, persistence, and pace—we find that the ALJ committed reversible error. See Yurt, 758 F.3d at 857 (failure of ALJ to include in hypothetical moderate difficulties in concentration, persistence, and pace attributed to applicant in Section I the MRFCA form was reversible error).”

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing attorney at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.