Tom Krause

Ninth Circuit Remands Case Where the ALJ Failed to Expressly Describe “Medium” Work as Limited to “About Six Hours” of Standing and Walking.

On March 26, 2024, the Ninth Circuit decided Conway v. O’Malley, No. 22-35427, 2024 WL 1263477 (9th Cir. Mar. 26, 2024). In Conway, the Court reversed and remanded the ALJ’s denial of benefits. The ALJ’s hypothetical question to the vocational expert (VE) asked about an individual “who’s limited to medium work, SVP 2, entry-level work.” The ALJ, then, implicitly found the claimant was limited to standing and walking about six hours out of an eight-hour workday. See SSR 83-10 (“A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday”). The VE initially identified jobs the claimant could perform if limited to “medium” work; on cross-examination, the VE testified those jobs were not available if the claimant was limited to standing and walking about six hours a day. Because the ALJ’s hypothetical did not expressly incorporate the six-hour standing and walking limitation, and cross-examination revealed that the expert did not understand the ALJ’s hypothetical to impliedly include that limitation, the ALJ failed to accurately describe Conway’s limitations. The Court remanded the claim to further develop the issue of transferable skills for a claimant who was of Advanced Age. See 20 C.F.R. § 1563(e); SSR 82-41. 

Congratulations to NOSSCR Sustaining Member and Board Member Kevin Kerr and Paul Warren!

Practice tip: If the ALJ limits the claimant to “light” or “medium” work, ask the vocational expert how many of those jobs are available to someone limited to standing and walking about six hours a day. And ask for the source of that number as most Bureau of Labor Statistics data assumes someone limited to “light” or “medium” work can stand and walk eight hours a day. At or after the hearing, check vocational resources such as the Occupational Requirements Surveys to confirm the vocational expert’s testimony.

Seventh Circuit Remands Case with Mixed Medical Records

The Seventh Circuit recently decided Martinez v. Kijakazi, 71 F.4th 1076, 1079 (7th Cir. 2023), holding that the ALJ’s consideration of medical records belonging to an individual other than the claimant was a prejudicial error. A chiropractor mixed nine pages of records from another patient in with the claimant’s medical records. The Appeals Council removed the pages. The Commissioner argued the error was harmless, but the Court did not agree. The ALJ cited the exhibit with the mixed records seven times. In one instance, the ALJ clearly referred to Martinez’s records. A second reference helped Martinez. Other references were not as clear. The Court found the issue of the mixed records permeates the ALJ’s findings regarding the medical opinion evidence and evaluation of the claimant’s symptoms. The Court found the error was not harmless. The Court went on to address other issues. The Court questioned the ALJ’s refusal to give weight to the statement of the claimant’s friend. That the author of the statement was the claimant’s friend and was not a medical source were not proper grounds to disregard the friend’s statements. The ALJ also failed to provide a “logical bridge” between the claimant’s failure to quit smoking despite medical advice and the evaluation of his symptoms. Finally, the Court found Martinez’s lack of inpatient psychiatric treatment did not indicate a claimant was therefore capable of gainful employment. 

Congratulations to NOSSCR Sustaining Member Ann Trzynka and to Jennifer Fisher!