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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANGEL STEININGER : CIVIL ACTION

:

V. :

: 04-5383

JO ANNE B. BARNHART, :

COMMISSIONER OF SOCIAL :

SECURITY ADMINISTRATION :

MEMORANDUM AND ORDER

Baylson, J. August 24, 2005

I. Introduction

Plaintiff Angel Steininger has brought this action under 42 U.S.C. § 1383(c)(3), which

incorporates 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social

Security’s decision denying her claims for disability insurance benefits and supplemental security

income under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 401-433,

1381-1383f. The parties have filed cross-motions for summary judgment. 

II. Background

Plaintiff protectively filed applications for benefits on February 27, 2003, alleging that

she had been disabled since May 1, 2002. The applications were denied on September 23, 2003. 

Plaintiff requested a hearing, and on January 22, 2004, a hearing was held before Administrative

Law Judge Christine McCafferty (the “ALJ”). The ALJ issued a decision denying Plaintiff’s

applications on February 11, 2004. Plaintiff sought review before the Appeals Council, which

denied her request for review on October 7, 2004. Plaintiff then proceeded to federal court, filing

the complaint in this action on November 22, 2004.

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“Residual functional capacity” is defined in the regulations as “what a [claimant] can

still do despite his limitations.” 20 C.F.R. §416.945(a). 

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In the February 11, 2004 decision, the ALJ concluded that Plaintiff is not disabled as that

term is defined in the Social Security Act because she retains the residual functional capacity

(“RFC”)1 to perform the functional demands and job duties of her past relevant work. (ALJ

Dec’n, p.2; Admin. Rec., p. 16). The ALJ found that Plaintiff “retains the residual functional

capacity to perform the functional demands of a limited level of light level exertional work; i.e.,

the claimant is able to stand and walk for a total of two hours in an eight hour workday, provided

that the claimant can alternate standing and sitting positions at will; is able to sit for a total of six

hours in an eight hour workday; is able to perform postural activities with no more than

occasional frequency; is unable to push or pull using her lower extremities; and is able to

perform simply, repetitive tasks.” (Id., p. 11; Admin. Rec., p. 25). The ALJ found that these

limitations did not preclude Plaintiff from performing her past relevant work as a systems

surveillance monitor, and therefore Plaintiff is not disabled. (Id., p. 12; Admin. Rec. p. 26).

In determining that the claimant retains the residual function capacity to perform her past

relevant work, the ALJ relied on the testimony of a vocational expert called upon at the hearing

to consider a hypothetical situation involving an individual with the age, educational background,

employment history, and residual functional capacity of Plaintiff. The vocational expert testified

that such an individual would be capable of performing the requirement and duties of a systems

surveillance monitor. (Id., p. 9, Admin. Rec., p. 23). 

Plaintiff argues for remand on several grounds: 

(1) that the ALJ’s determination regarding her residual functional capacity was

inconsistent with the ALJ’s findings regarding Plaintiff’s “moderate degree of

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limitation” in several mental health categories (Admin. Rec., p. 22-23), and

specifically that the hypothetical posed to the vocational expert did not reflect the

ALJ’s findings of Plaintiff’s mental health limitations; 

(2) that Third Circuit precedent bars the assumption that a “sit/stand option at

will” exists in unskilled competitive employments in significant numbers; and

(3) that Plaintiff has been prejudiced by the ALJ’s passivity in developing the

record, because Plaintiff was never sent for a psychiatric consultative examination

and had obtained only two mental health exhibits at the time Plaintiff’s file was

forwarded to a “non-examining” psychologist, and because the ALJ declined to

follow Plaintiff’s counsel’s suggestion that a subpoena be issued to the

Community Council where Plaintiff had been treated and/or that a psychiatric

consultative examination be performed. 

Also, according to Plaintiff, the ALJ’s rejection of the opinion of Dr. Ronald Refice, a

psychologist who reviewed Plaintiff’s file at the behest of the Pennsylvania Department of Public

Welfare as part of a medical/vocational review team, was inappropriate. Plaintiff also argues that

the ALJ mischaracterized the statements of the claimant and of her brother, and ignored the

Community Council mental health record references that did not support denial.

III. Legal Standard

The Court must review the record to determine whether substantial evidence supports the

ALJ’s decision. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The factual findings

of the ALJ are accepted as conclusive, provided they are supported by substantial evidence. 

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). “Substantial evidence has been defined as

more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (quotations and citations omitted). The Court must not

“weigh the evidence or substitute [its own] conclusion for those of the fact-finder.” Rutherford,

339 F.3d at 552 (quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). 

Case 2:04-cv-05383-MMB Document 12 Filed 08/25/05 Page 3 of 9
2The ALJ also considered the “hypothetical scenario” in which the claimant were found to

be incapable of performing her past work and concluded that Plaintiff would still not fulfill the

definition of disabled, because the Social Security Administration had met its burden of showing

that there are other jobs existing significant numbers in the regional and national economies,

such as bench assembler, hand packer, and final assembler, to which Plaintiff could make a

successful vocational adjustment. (ALJ’s Dec’n, p. 12; Admin. Rec., p. 26). As this conclusion

was also based on the testimony of the vocational expert which the Court finds does not

constitute substantial evidence, this determination must also be reconsidered by the ALJ in

further proceedings. 

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IV. Discussion

To be eligible for benefits, Plaintiff must establish that she is unable "to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (2000). The

ALJ evaluates applications for benefits under the five-step process of 20 C.F.R. §§404.1520,

416.920. The ALJ must consider: (1) whether the claimant is working, (2) whether she has a

severe impairment, (3) whether her severe impairment meets or medically equals a listed

impairment, (4) whether she has the residual functional capacity to return to past relevant work,

and (5) whether she can make an adjustment to other available work. Ramirez v. Barnhart, 372

F.3d 546, 550-51 (3d Cir. 2004). 

The parties’ motions address the ALJ’s determination, at the fourth step of the analysis,

that Plaintiff has the residual functional capacity to return to past relevant work.2

 Plaintiff relies

on Ramirez, in which the Third Circuit found that the ALJ’s decision was not supported by

substantial evidence because the ALJ’s hypothetical question to the vocational expert did not

accurately convey all of the claimant’s impairments and limitations caused by those impairments. 

372 F.3d 546. Here, the ALJ posed the following hypothetical to the vocational expert:

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Q: Okay. All right. Mr. Earhart, I want you to assume an individual of the

Claimant’s age, education, and work experience having the following

residual functional capacity. Being able to lift up to 10 pounds, sit for six

hours, stand and walk for two hours with an at will sit stand option, with

occasional postural activities, and being limited to simple repetitive tasks

with only occasional contact with the public and coworkers. Could that

individual return to Claimant’s past relevant work? And no pushing and

pulling with the lower extremity. Could that individual return to

Claimant’s past relevant work?

A: Just the one job as a surveillance system monitor.

(Hearing Transcript, p. 54; Admin. Rec. 369). The Commissioner argues that this hypothetical is

distinguishable from the hypothetical at issue in Ramirez because, in Ramirez, the hypothetical

included only a limitation to simple and repetitive tasks, whereas here the ALJ’s hypothetical

question included not only “being limited to simple repetitive tasks,” but also being limited “to

only occasional contact with the public and coworkers,” which the Commissioner argues

adequately addresses the limitations arising from Plaintiff’s mental impairments. 

The Court disagrees, because the limitation “to only occasional contact with public and

coworkers” does not sufficiently incorporate the ALJ’s own findings regarding Plaintiff’s mental

functional limitations, which include, among other things, “a moderate degree of limitation in the

concentration, persistence and pace area of functioning.” (ALJ’s Dec’n, p. 8-9; Admin. Rec., p.

22-23). As the Commissioner notes, the ALJ gave great weight to Dr. Salvatore Cullari’s state

agency medical consultant assessment in making her finding that Plaintiff “demonstrates a

moderate degree of limitation in the activities of daily living area of functioning; a moderate

degree of limitation in the social area of functioning; a moderate degree of limitation in the

concentration, persistence and pace area of functioning; and one or two episodes of

decompensation.” (ALJ Decision, pp. 8-9; Admin. Rec., pp. 22-23). Dr. Cullari’s “Mental

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Residual Functional Capacity Assessment,” on which the ALJ relied, concluded that although

Plaintiff’s ability to understand and remember complex or detailed instructions is limited,

Plaintiff’s “basic memory processes are intact” and she “can retain, and follow simply job

instructions, i.e., perform one and two step tasks.” (Admin. Rec. p. 189). Dr. Cullari also found

that Plaintiff “is able to interact appropriately with the general public,” “is able to maintain

socially appropriate behavior,” and “can sustain an ordinary routine without special supervision.”

Id. 

The Commissioner argues that the hypothetical posed to the vocational expert by the ALJ

reflected the conclusions in Dr. Cullari’s report, despite the fact that the hypothetical does not

include the ALJ’s other findings regarding Plaintiff’s moderate limitations in concentration,

persistence, or pace. The Third Circuit, however, has “stated in the clearest of terms that an

ALJ’s hypothetical must include all of a claimant’s impairments.” Ramirez, 372 F.3d at 552. In

eliciting testimony from a vocational expert, a “hypothetical question must reflect all of a

claimant’s impairments that are supported by the record; otherwise the question is deficient and

the expert’s answer to it cannot be considered substantial evidence.” Id. (quoting Chrupcala v.

Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). In a recent opinion clarifying this language, the

Third Circuit noted that “[w]e do not require an ALJ to submit to the vocational expert every

impairment alleged by a claimant,” but do require that “the hypothetical posed must accurately

portray the claimant’s impairments and that the expert must be given an opportunity to evaluate

those impairments as contained in the record.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d

Cir. March 3, 2005)(quotations omitted). The ALJ’s hypothetical “must accurately convey to the

vocational expert all of a claimant's credibly established limitations.” Id. 

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So, while the ALJ need only include all of the limitations credibly established in the

record, and may properly exclude any limitations alleged by the plaintiff that are “reasonably

discounted” by the ALJ, Rutherford, 399 F.3d at 555, here the ALJ’s hypothetical did not reflect

the ALJ’s own findings regarding the Plaintiff’s mental health limitations – that Plaintiff

demonstrates a moderate degree of limitation in the concentration, persistence and pace area of

functioning. “This omission from the hypothetical runs afoul of [the Third Circuit’s] directive in

Chrupcala that a ‘hypothetical question posed to a vocational expert must reflect all of a

claimant’s impairments,’ as well as our statement in Burns that ‘great specificity’ is required

when an ALJ incorporates a claimant’s mental or physical limitations into a hypothetical.” 

Ramirez, 372 F.3d at 554-55 (quoting Chrupcala, 829 F.2d at 1276, and Burns v. Barnhart, 312

F.3d 113, 122 (3d Cir. 2002)).

The objection could be made that these Third Circuit cases address ALJ determinations at

the fifth step of the disability analysis, where vocational expert testimony is required and the

defendant has the burden of showing that the claimant could perform other occupations that exist

in significant numbers in the regional and national economies. At the fourth step of the analysis,

vocational expert testimony is not required to establish that a claimant can return to her past

relevant work as long as other substantial evidence supports the ALJ’s conclusion. Molina v.

Barnhart, 2004 WL 2250928 *5 (E.D. Pa. 2004)(citing Rivera v. Barnhart, 239 F.Supp.2d 413,

420-21 (E.D. De. 2002)). Here, however, where the ALJ’s decision at step four relies

exclusively on the vocational expert’s testimony, the Court believes that the Third Circuit

precedent regarding reliance on such testimony applies.

The Court therefore concludes that the ALJ’s hypothetical was deficient and the

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vocational expert’s answer to it does not constitute substantial evidence for the ALJ’s decision. 

Having concluded for the above stated reasons that remand to the ALJ for a new evidentiary

hearing is appropriate, the Court will not address Plaintiff’s other arguments for remand, as the

ALJ’s findings may be revised in any decision issued following the new hearing.

B: Conclusion

After review of the parties’ briefs and the administrative record, the Court believes that it

is appropriate to remand this case to the ALJ for further consideration.

An appropriate order follows. 

A:\04-5383, Steininger v. Barnhart, Memo and Order.wpd

Case 2:04-cv-05383-MMB Document 12 Filed 08/25/05 Page 8 of 9
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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANGEL STEININGER : CIVIL ACTION

:

V. :

: 04-5383

JO ANNE B. BARNHART, :

COMMISSIONER OF SOCIAL :

SECURITY ADMINISTRATION :

O R D E R

AND NOW, this 24th day of August, 2005, upon consideration of Plaintiff’s

Motion for Summary Judgment (Docket No. 7), and Defendant’s Motion for Summary Judgment

(Docket No. 10), it is hereby ORDERED that Plaintiff’s Motion is GRANTED and this matter is

REMANDED to the Commissioner for an evidentiary hearing in accordance with the foregoing

Memorandum. This remand is ORDERED pursuant to the fourth sentence of 42 U.S.C. §

405(g). Defendant’s Motion is DENIED. The Clerk shall mark this case CLOSED.

BY THE COURT:

 /s/ Michael M. Baylson 

MICHAEL M. BAYLSON, J.

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