News & Information

CCH® UNEMPLOYMENT INSURANCE — 09/12/17

Case remanded after incomplete hypothetical put to vocational expert

An ALJ's hypothetical question to a vocational expert (VE) must be supported by the evidence in the record. Here, the claimant suffered from physical and mental impairments. He argued that the hypothetical residual functional capacity assessment posed to the VE at the hearing was flawed and caused the VE to overstate the number of jobs that he could perform. Specifically, the claimant stated that the ALJ failed to lay a foundation for the limitation that he might be off task no more than 10% of the day and that he could maintain frequent, rather than occasional, contact with his coworkers and the public. Further, the claimant argued that the hypothetical failed to take into account his moderate limitations in concentration, persistence, and pace. The court agreed that the hypothetical was not supported by substantial evidence. The ALJ had no basis to conclude the claimant would not be off task more than 10% of the time. Indeed, the claimant testified at the hearing that he was taking three to five breaks during each five-hour shift at his part-time job. Further, the medical evidence in the record did not support the 10% calculation. The ALJ did not explain why he credited some medical opinions over others and gave a selective reading of treatment notes contained in the record. Finally, the hypothetical failed to account for limitations to the claimant's concentration, persistence, and pace. The court thus reversed the decision upholding the benefits denial and remanded the case to the agency for further proceedings (Joshua Ray Lanigan v. Berryhill, CA-7, No. 16-2894, July 31, 2017).