IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULIE BARRY,

Plaintiff

v.

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant.

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CIVIL ACTION

NO. 05-1825

Memorandum and Order

YOHN, J. September ___, 2006

Plaintiff Julie Barry appeals the final decision of the Commissioner of Social Security

(the “Commissioner”) denying her claim for disability insurance benefits (DIB) and supplemental

security income (SSI) under Titles II and XVI, respectively, of the Social Security Act (the

“Act”), 42 U.S.C. §§ 401-433, 1381-1383f. Barry and the Commissioner have filed cross

motions for summary judgment. I referred the motions to a magistrate judge, who submitted a

report and recommendation that I grant the Commissioner’s motion and deny the plaintiff’s

motion, thus affirming the Commissioner’s decision. Barry has filed objections to the report and

recommendation. The Commissioner did not file a response. For the following reasons, I will

remand the case to the administrative law judge (ALJ) for reconsideration.

I. Factual Background

Plaintiff is a thirty-nine-year-old woman with a twelfth grade education who has most

recently worked in retail at a greeting card shop. (R. 136.) She alleges that she became disabled

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 The Global Assessment of Functioning test “measures an individual's psychological,

social, and occupational functioning on a hypothetical continuum of mental health/illness on a

scale of one to a hundred.” Colon v. Barnhart, 424 F. Supp. 2d 805, 808 (E.D. Pa. 2006). A

score in the 61 to 70 range indicates some mild symptoms or some difficulty in social,

occupational, or school functions, but an individual who is generally functioning pretty well. See

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on October 17, 2002, due to various psychiatric ailments, including depression, anxiety, and

bipolar disorder. (R. 157.) 

Barry has been receiving treatment for depression since 1994 (R. 324), and in 1996 was

diagnosed with bipolar disorder (R. 326). 

In a July 26, 2001 psychiatric progress note from Shore Health System, Barry was

diagnosed with bipolar disorder and post-traumatic stress disorder. (R. 353.) However, the

report stated that medication had stabilized Barry’s condition for the past four years. (R. 353.) 

The note further stated that Barry denied symptoms of bipolar disorder, was oriented, had an

appropriate affect, had an organized thought process, and exhibited a congruent and euthymic

mood. (R. 353.) 

However, on October 19, 2001, Barry was admitted to Shore Health System. (R. 223.) 

She had written a note threatening to commit suicide and placed it in her husband’s lunch bag. 

(R. 223.) At the time she was drinking and using cocaine. (R. 223.) She reported that she was

depressed at the prospect of filing for bankruptcy. (R. 223.) She was diagnosed with depression,

cocaine abuse, and alcohol abuse. (R. 224.) Barry was discharged on October 22, 2001. (R.

224.) 

On October 30, 2001, Barry had a follow-up appointment at Delmarva Family Resources. 

(R. 245.) At this appointment, she was diagnosed with a Global Assessment of Functioning

score of 61.1 (R. 245.)

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American Psychiatric Association, Diagnostic and Statistical Manual 34 (4th ed. 2000). 

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In a November 27, 2001 physician treatment progress note from Delmarva, Barry’s doctor

reported that she was doing well; was alert/oriented; had a euthymic affect; and had fair

attention/concentration, insight, and judgment. (R. 251.) In a February 12, 2002 physician

treatment progress note, the doctor noted that Barry was doing very well, and that her

concentration, insight, and judgment remained fair. (R. 253.) Similarly, in a July 11, 2002

physician treatment progress note, the doctor reported that Barry was alert; had a euthymic affect;

and had fair judgment, concentration, and insight. (R. 254.) A September 23, 2002 physician

treatment progress note reported similar observations, although at this point Barry was getting

divorced and felt more depressed. (R. 255.) Still, she was handling those issues, retained a

euthymic affect, and demonstrated fair skills as described above. (R. 255.)

On January 7, 2002, a state agency medical consultant completed a residual functional

capacity (RFC) assessment of Barry. (R. 256-58.) The assessment reported that Barry was not

significantly limited in her ability to, inter alia, understand and remember very short and simple

instructions; maintain attention and concentration for extended periods; perform activities within

a schedule, maintain regular attendance, and be punctual within customary tolerances; and set

realistic goals or make plans independently of others. (R. 256-57.) The assessment concluded

that she was moderately limited in her ability to: understand and remember detailed instructions;

carry out detailed instructions; complete a normal workday and workweek without interruptions

from psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods; accept instructions and respond appropriately to

criticism from supervisors; and respond appropriately to changes in the work setting. (R. 256-

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 A GAF score from 51-60 represents “moderate symptoms (e.g., flat affect and

circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational,

or school functioning (e.g., few friends, conflicts with peers or coworkers). See American

Psychiatric Association, Diagnostic and Statistical Manual 34 (4th ed. 2000) 

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57.) The assessment reported no marked limitations.

On December 12, 2002, in a psychiatric evaluation from Delmarva, Barry was assigned a

51-60 GAF score.2 (R. 316.) The note reported that while she was irritable, she was also

cooperative, had a full and appropriate affect, had a goal-directed thought process without

loosening of associations or flight of ideas, was alert and oriented, has intact attention, and

showed fair insight and judgment. (R. 315-16.)

In a January 7, 2003 review, a state agency medical consultant determined that Barry had

mild restrictions in performing activities of daily living; mild difficulties in maintaining social

functioning; moderate difficulties in maintaining concentration, persistence, or pace; and one or

two episodes of decompensation. (R. 260, 270.) 

On October 6, 2003, The Family Practice & Counseling Network completed a

psychosocial assessment of Barry. (R. 293-94.) The assessment reported that Barry was

demonstrating symptoms of bipolar disorder, and assigned her a GAF score of 55. (R. 293-94.) 

On October 6, 2003, Barry also had her initial assessment with Shonda Nixon, Psy. D. 

(R. 368.) In a progress note from that date, Dr. Nixon reported that Barry demonstrated a full

range of affect and a congruent mood. (R. 368.) In an October 13, 2003 progress note, Dr.

Nixon also reported that Barry had a full range of affect and was stable. (R. 367.) The note

stated that her mood and affect remained consistent. (R. 367.) In an October 20, 2003 progress

note, Dr. Nixon reported that Barry was cheerful, stable, and exhibited a full range of affect. (R.

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365.) In a November 3, 2003 progress note, Dr. Nixon reported that Barry was feeling less

depressed and in a happy mood. (R. 363.) Barry stated that she had recently started working

part-time at a card store, and was excited about the opportunity. (R. 363.) She reported this

news with a euthymic affect. (R. 363.) Further, in a November 17, 2003 progress note, Dr.

Nixon stated that Barry was enjoying working, was in a somewhat consistent mood, and reported

no significant mania, although she did feel depressed. (R. 360.) Finally, in a November 26, 2003

progress note, Dr. Nixon reported that Barry had a normal affect and consistent mood. (R. 359.) 

Barry stated that she was happy to have her job, but found it difficult to work for more than an

hour without taking a break. (R. 359.) 

On November 23, 2003, Dr. Nixon completed a medical questionnaire concerning Barry. 

(R. 295-99.) In this report, Dr. Nixon stated that Barry suffered from Bipolar II Disorder. (R.

295.) Dr. Nixon stated that Barry’s depressive syndrome was characterized by anhedonia,

appetite disturbance, decreased energy, feelings of guilt or worthlessness, and thoughts of

suicide. (R. 296.) Dr. Nixon further stated that Barry’s manic syndrome was characterized by

hyperactivity, inflated self esteem, and easy distractibility. (R. 296.) Dr. Nixon reported that

Barry suffered from marked difficulties in maintaining social functioning and marked difficulties

in maintaining concentration, persistence, or pace; and had suffered repeated episodes of

decompensation, each of an extended duration. (R. 297.) 

II. Procedural Background

On November 14, 2002, Barry filed her application for DIB and SSI. (R. 136-38.) Both

claims were denied (R. 107), and Barry filed a request for a hearing before an ALJ (R. 111). 

Barry’s administrative hearing occurred on November 25, 2003. (R. 56.)

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During Barry’s administrative hearing, she testified about a variety of topics, including

her work history. She had previously worked as a real estate agent, bartender, and salesperson. 

(R. 65.) At the time of the hearing, she was working as a clerk at a greeting card shop, where she

was responsible for serving customers and stocking shelves. (R. 60, 64.) She worked four or

five hour shifts, about three times a week. (R. 72.) She stated that she had to take frequent

breaks at work, sometimes one an hour. (R. 72-73.) When asked what triggered her need for

those frequent breaks, Barry explained that customers would interrupt her while she was stocking

cards, which would make her feel like she was never finishing her tasks; this was compounded

by customers’ attitude problems. (R. 74.) She emphasized that she could only work four or five

hour days because she could not handle more human contact. (R. 76.) She testified that she did

not have much trouble dealing with supervisors or coworkers, but had great difficulty interacting

with customers. (R. 97.) She explained that overall, she was a good worker. (R. 98.) 

Barry stated that she last consumed alcohol on December 2, 2002, and last used cocaine a

year and a half before the hearing. (R. 65.) She stated that she drives sometimes (R. 66); goes to

AA meetings, the supermarket, and the gas station; talks to a friend on the phone at least an hour

a day; and walks her dog (R. 67). 

Barry also testified that she was feeling better with her medication. (R. 66.) She stated

that while she still suffers from some episodes of panic, she feels less panicked on the

medication, and reported that she has felt better “these last couple of years.” (R. 66.) As an

example of her improvement, Barry explained that she was not as panicked by the prospect of the

administrative hearing as she would have been in the past. (R. 66.) 

 Nonetheless, Barry stated that she sometimes had trouble getting out of bed. (R. 79.) 

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She explained “I just thought that the whole day ahead of me was overwhelming and I just

couldn’t face interacting with all the people and trying to put on this face that everything was

okay.” (R. 79.) When she was depressed, she would only eat something like a can of soup, call

her friend, and bathe only if she had somewhere to go. (R. 88.) She also stated that her financial

problems brought significant stress to her life. (R. 83.) Barry further testified that when she is

manic, she gets crazed and obsesses over certain matters. (R. 85.) 

After hearing Barry’s testimony, the ALJ asked a vocational expert (VE) whether work

existed in the national economy for an individual of plaintiff’s age, education, and part-time

work history who “is capable of performing work that involves simple, repetitive, one to two step

tasks, and a job that is low stress in nature providing no more than limited contact . . . with the

public or coworkers.” (R. 99.) The VE responded that there are such jobs, including jobs as a

surveillance system monitor, small product assembler, and in hand packing. (R. 99-100.) 

Barry’s representative offered an alternate hypothetical, which the ALJ rephrased as whether “an

individual so compromised by depression as to be unable to get out of bed on a regular basis and

therefore unable to maintain regular attendance and during the course of the workday is unable to

maintain regular concentration, persistence, or pace” would be able to work. (R. 102.) The VE

stated that those limitations would significantly erode the job base. (R. 102-03.) 

On January 14, 2004, the ALJ issued her decision, denying Barry’s application for

benefits. (R. 16-22.) The ALJ first concluded that Barry had not engaged in substantial gainful

activity since her onset date. (R. 17.) She next ruled that Barry had bipolar affective disorder,

severe within the meaning of the regulations but not severe enough to meet or equal a listing. (R.

19.) The ALJ noted that Barry demonstrated an ability to perform activities of daily living, did

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not present a marked impairment in her ability to interact with others, did not present evidence of

impaired concentration or distractibility, and proffered evidence of only one episode of

decompensation (the October 2001 hospitalization). (R. 19.) The ALJ then concluded that Barry

retained the residual functional capacity to perform simple, low stress 1-2 step tasks, involving

limited contact with the public and coworkers. (R. 20.) The ALJ ruled that Barry was not able to

perform any of her past relevant jobs. (R. 20.) However, based on the testimony of the VE, the

ALJ ruled that Barry was able to perform various jobs, and accordingly, was not disabled under

the Act. (R. 21.) 

In making these rulings, the ALJ accepted Barry’s testimony as generally credible (R. 20);

however, she only gave Dr. Nixon’s medical questionnaire partial probative weight (R. 18). The

ALJ found that the some of the questionnaire responses were not supported by various sets of

progress notes, including those of Dr. Nixon herself. (R. 18.) The ALJ accepted Dr. Nixon’s

conclusion that Barry would be easily overwhelmed when subjected to medium or high levels of

stress, but not the determination that Barry was totally precluded from performing substantial

gainful activity. (R. 19.) The ALJ also noted that while Barry reported difficulties working at

her job at the card shop, that job was more stressful and difficult than the jobs prescribed by the

VE. (R. 20.) 

On February 18, 2005, the Appeals Council denied Barry’s request for review. (R. 7.) 

Accordingly, the ALJ’s decision is the final decision of the Commissioner. (R. 7.)

On July 14, 2005, Barry brought an action pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3) seeking judicial review of the ALJ’s decision. The case was assigned to a magistrate

judge. Both parties filed motions for summary judgment, and the magistrate judge issued a

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report and recommendation recommending that Barry’s motion for summary judgment be denied

and the Commissioner’s motion for summary judgment be granted.

III. Standards of Review

I review de novo the parts of the magistrate judge’s report to which Barry objects. 28

U.S.C. § 636(b)(1)(C). I may accept, reject, or modify, in whole or in part, the magistrate’s

findings or recommendations. Id.

In contrast, a district court may not review the Commissioner’s decision de novo. The

court may only review the Commissioner’s final decision to determine “whether that decision is

supported by substantial evidence.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing

42 U.S.C. § 405(g)). “[S]ubstantial evidence is more than a mere scintilla.” Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation omitted). “Substantial evidence

‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Hartranft, 181 F.3d at 360

(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). In making this determination, the

court must consider “the evidentiary record as a whole, not just the evidence that is consistent

with the agency’s finding.” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). 

The substantial evidence test is “deferential.” Id. Consequently, the court “will not set the

Commissioner’s decision aside if it is supported by substantial evidence, even if [it] would have

decided the factual inquiry differently.” Hartranft, 181 F.3d at 360.

IV. Discussion

A. Introduction

To qualify for DIB or SSI payments, a claimant must be unable “to engage in any

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 Technically, neither party bears the burden of proving step three “[b]ecause step three

involves a conclusive presumption based on the listings.” Sykes v. Apfel, 228 F.3d at 263 n.2.

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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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3). When evaluating a claim for disability payments, the Commissioner applies a

five-step sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Sykes v. Apfel, 228 F.3d 259,

262-63 (3d Cir. 2000). The Commissioner considers: (1) whether the claimant worked during

the alleged period of disability; (2) whether the claimant has a “severe medically determinable . .

. impairment”; (3) whether the “impairment” meets the requirements of a listed impairment; (4)

whether the claimant can continue to perform “past relevant work”; and (5) whether the claimant

can perform “other work” in the national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 

The claimant bears the burden of proving steps one through four.3 If the claimant satisfies these

requirements, the burden shifts to the Commissioner to show that the claimant is capable of

performing “other work.” Sykes, 228 F.3d at 263.

Further, there is an additional process the Commissioner must employ to evaluate an

alleged mental impairment. See Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999); 20 C.F.R.

§§ 404.1520a, 416.920a. This technique requires the Commissioner to first consider the

claimant’s symptoms, signs, and laboratory findings to determine whether the claimant has a

mental impairment. §§ 404.1520a(b)(1), 416.920a(b)(1). If the Commissioner finds an

impairment, the Commissioner must then rate the degree of the functional limitation caused by

the impairment in four areas: activities of daily living; social functioning; concentration,

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persistence, or pace; and episodes of decompensation. §§ 404.1520a(b)(2), 404.1520a(c)(3),

416.920a(b)(2), 416.920a(c)(3). Based on this evaluation, the Commissioner must determine if

the impairment is severe, §§ 404.1520a(d), 416.920a(d); if it is severe, the Commissioner must

then determine whether it meets or equals a listing, §§ 404.1520a(d)(2), 416.920a(d)(2). If the

impairment does not meet or equal a listing, the Commissioner will then conduct a residual

functional capacity assessment. §§ 404.1520a(d)(3), 416.920a(d)(3). 

Here, Barry has filed two objections to the magistrate judge’s recommendation. First, she

contends that the magistrate judge mistakenly approved the ALJ’s decision to accord Dr. Nixon’s

opinion only partial weight. Second, Barry argues that the magistrate judge erred in concluding

that the ALJ’s hypothetical question to the VE accurately conveyed her limitations. On these two

points, she argues that the ALJ’s reasoning is not supported by substantial evidence.

B. The ALJ’s Decision to Accord Dr. Nixon’s Questionnaire Partial Weight

Barry first argues that the ALJ’s decision to accord only partial probative weight to Dr.

Nixon’s questionnaire responses is not supported by substantial evidence. As described below,

the court will reject this argument.

It is well established that “[t]reating physicians’ reports should be accorded great weight,

especially ‘when their opinions reflect expert judgment based on continuing observation of the

patient’s condition over a prolonged period of time.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d

Cir. 1999) (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). The regulations

provide that treating physician opinions will be granted controlling weight where they are

well-supported by medical evidence and not inconsistent with other substantial evidence in the

record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). “In choosing to reject the treating

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 A GAF score from 41-50 represents “serious symptoms (e.g., suicidal ideation, severe

obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or

school functioning (e.g., no friends, unable to keep a job). See American Psychiatric

Association, Diagnostic and Statistical Manual 34 (4th ed. 2000) 

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physician's assessment, an ALJ may not make speculative inferences from medical reports and

may reject a treating physician's opinion outright only on the basis of contradictory medical

evidence and not due to his or her own credibility judgments, speculation or lay opinion.” 

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (internal quotation marks omitted).

Here, Dr. Nixon’s questionnaire responses stated that Barry met the listing for Affective

Disorders, as listed at 20 C.F.R. Pt. 404, Subpt. P, Appx. 1 § 12.04. Thus, had the ALJ fully

credited Dr. Nixon’s questionnaire, Barry would have been found disabled under the Act at step

3 of the five-step test.

However, substantial evidence supports the ALJ’s decision to accord Dr. Nixon’s

questionnaire only partial probative weight. The ALJ correctly noted that the dire limitations

described in the questionnaire are not supported by the rest of the medical evidence in the record. 

First of all, the extreme symptoms that Dr. Nixon reported in her questionnaire are never

mentioned in her treatment notes; rather, those notes invariably describe Barry as exhibiting a

full range of affect and a stable mood. Also, as stated by the ALJ, the treatment notes from Shore

Health System state that Barry was stable with medication, and show that she was only

hospitalized once when she used drugs and alcohol. The ALJ also appropriately noted that Dr.

Nixon’s office assigned Barry a GAF score of 55, which generally stands for moderate, rather

than severe,4 limitations. Additionally, Dr. Nixon’s questionnaire responses are inconsistent with

the two state agency assessments in the record, which described only mild and moderate – not

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marked – limitations. Finally, the questionnaire reported limitations of a more serious nature

than the physician treatment notes from Delmarva Family Resources.

The limitations described by Dr. Nixon are also inconsistent with Barry’s testimony. 

Barry testified that she was able to prepare her own food, drive a car, travel to appointments

unaccompanied, travel to and socialize at the supermarket, talk to a friend on the phone for at

least an hour a day, and walk her dog. She also testified that with her medication she had been

feeling better for the last couple years and, as an example, stated that she was not as anxious

about going to the administrative hearing as she would have been in the past. Finally, Barry was

working at the time of her administrative hearing, and had not missed any shifts. While her work

situation was stressful to her, her complaints about the work were almost entirely limited to

problems dealing with customers, which is not an essential component of every job. All of this

evidence conflicts with Dr. Nixon’s questionnaire responses, and accordingly, the ALJ’s decision

to accord that opinion only partial weight is supported by substantial evidence.

Barry also argues that the ALJ’s use of treatment notes, including those completed by Dr.

Nixon, represents a lay opinion, as proscribed by Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.

2000). See id. (“In choosing to reject the treating physician's assessment, an ALJ may not make

speculative inferences from medical reports and may reject a treating physician's opinion outright

only on the basis of contradictory medical evidence and not due to his or her own credibility

judgments, speculation or lay opinion.”). However, the court will also reject this argument. The

regulations require mental ailments to be demonstrated by medical evidence, which consists of

signs, symptoms, and laboratory findings. 20 C.F.R. §§ 404.1508, 416.908. Further, in

addressing the severity of a mental impairment, the regulations instruct the Commissioner to

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“consider all relevant and available clinical signs and laboratory findings.” §§ 404.1520a(c)(1),

416.920a(c)(1). The regulations explain that “[p]sychiatric signs are medically demonstrable

phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior,

mood, thought, memory, orientation, development, or perception.” 20 C.F.R. §§ 404.1528(b),

416.928(b). Here, Dr. Nixon’s observations about Barry’s affect, mood, and stability constitute

signs. See Rivera v. Barnhart, No Civ. A. 04-2102, 2005 WL 713347, at *8 (E.D. Pa. March 24,

2005). Further, the Third Circuit has consistently stated that in order to be controlling, the

opinions of treating physicians must be supported by the medical evidence of the record, which

concept includes treatment notes. Indeed, in Plummer v. Apfel, 186 F.3d 422, 430 (3d Cir. 1999),

the Third Circuit accorded limited weight to a treating physician’s answers to interrogatories

when the answers conflicted with prior notes. This demonstrates that the Third Circuit allows

ALJs to compare a treating physician’s opinion with that physician’s prior records. 

Barry is correct that Morales counsels against overvaluing treatment notes because they

report a claimant’s psychiatric state while at a clinic, not work. Morales, 225 F.3d at 319. 

However, in this case the ALJ’s decision is supported not only by the treatment notes from Dr.

Nixon, her treating psychologist, but also two state agency assessments, mental status reports

from Shore Health System and Delmarva, and Barry’s testimony. See Torres v. Barnhart, 139

Fed. Appx. 411, at *3 (3d Cir. 2005). Further, in this case the ALJ weighed the medical evidence

much more objectively than the ALJ did in Morales. In Morales, the ALJ rejected a great deal of

medical evidence simply because he did not believe the claimant’s testimony at the hearing and

because there was evidence that the claimant malingered during medical testing. Id. at 318. 

Here, however, the ALJ did not inappropriately base her rejection of the treating psychologist’s

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questionnaire opinion on credibility judgments, speculation, or lay opinion. Thus, the court finds

that substantial evidence supports the ALJ’s decision to accord Dr. Nixon’s questionnaire only

partial probative weight.

C. The Adequacy of the ALJ’s Hypothetical Question

Barry next challenges the ALJ’s determination at step five that she remained able to

perform substantial gainful activity. The ALJ’s conclusion “was based in large measure on the

testimony provided by the vocational expert.” Rutherford v. Barnhart, 399 F.3d 546, 553 (3d

Cir. 2005). Barry claims that the hypothetical question to the VE did not refer to several of her

limitations – her difficulties with concentration, distractibility, persistence, and pace; her periodic

isolation; and her depressed mood – and accordingly, cannot justify the ALJ’s step-five ruling.

The Third Circuit has explained that “‘the vocational expert's testimony concerning a

claimant's ability to perform alternative employment may only be considered for purposes of

determining disability if the question accurately portrays the claimant's individual physical and

mental impairments.’” Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (quoting

Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). The hypothetical question “must

reflect all of a claimant's impairments.” Id. Thus, “the ALJ must accurately convey to the

vocational expert all of a claimant's credibly established limitations.” Rutherford, 399 F.3d at

554.

There are two main methods by which a claimant may challenge an ALJ’s hypothetical

question: (1) by arguing that the hypothetical question failed to include limitations that the ALJ

identified in the RFC assessment, or (2) by arguing that the ALJ “failed to recognize credibly

established limitations during the RFC assessment and so did not convey those limitations to the

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vocational expert.” Id. at 554 n.8. At bottom, arguments of the second sort challenge the RFC

assessment itself. Id.

In this case, the ALJ’s RFC assessment concluded that Barry retained the RFC to

“perform simple, low stress 1-2 step tasks, involving limited contact with the public and coworkers.” (R. 20.) In other parts of the opinion she noted that when Barry “is diligent in taking

her medications, her symptoms are resolved or lessen” (R. 20); that Barry did not present marked

limitations in performing activities of daily living (R. 19); that she did not present evidence of

social withdrawal or isolation (R. 19); and that there was no evidence of impaired concentration,

distractibility, or attention problems (R. 19). Accordingly, because the ALJ did not recognize the

limitations that Barry claims she should have included in the hypothetical question to the VE, the

court interprets her argument as being an attack on the RFC assessment. Thus, the court must

determine whether Barry credibly established the limitations that she now alleges. See

Rutherford, 399 F.3d at 554.

In Rutherford, the Third Circuit described the standard for determining when a limitation

has been credibly established (and thus must be included in the hypothetical). First,

“[l]imitations that are medically supported and otherwise uncontroverted in the record” have

been credibly established. Id. Second, limitations that are medically supported in some parts of

the record but contradicted in other parts of the record may or may not be credibly established; it

is for the ALJ to decide which evidence to credit, but he or she “cannot reject evidence for no

reason or for the wrong reason.” Id. (internal quotation marks omitted). “Finally, limitations that

are asserted by the claimant but that lack objective medical support may possibly be considered

nonetheless credible”; however, the ALJ may reject a claimed limitation when it is contradicted

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by the objective evidence in the record. Id. 

As noted above, Barry argues that she credibly established limitations concerning her

concentration, persistence, and pace; isolation; and depression. Regarding her first contention,

the ALJ stated that “[t]here is no evidence of impaired concentration. Treatment notes do not

show evidence of distractibility or attention problems when the claimant is diligent in following

prescribed treatment.” (R. 19.) Accordingly, the ALJ did not include any reference to limitations

in concentration, persistence, or pace in the hypothetical question that she submitted to the VE. 

However, the record contains frequent references to such a limitation. First of all, Dr. Nixon’s

questionnaire states that Barry suffers from marked difficulties in maintaining concentration,

persistence, or pace. (R. 297.) While Dr. Nixon’s statement that Barry met a listing was

inconsistent with the record as a whole, her finding that Barry was limited in this area is

supported by other parts of the record. The state agency’s residual functional capacity

assessment concluded that Barry was moderately limited in her “ability to complete a normal

workday and workweek without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest periods.” (R.

257.) Further, the subsequent state agency assessment reported that Barry suffered from a

moderate limitation in maintaining concentration, persistence, or pace. (R. 270.) These reports

are also consistent with Barry’s testimony, which the ALJ found generally credible (R. 20), in

which she complained of having to take breaks from her job every hour and stated that when

manic, she had difficulty concentrating because she would think about “20 different things at

once” (R. 86). 

There may be a valid explanation for the ALJ’s omitting this limitation from the

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18

hypothetical. For example, Barry did attribute her need for breaks largely to being upset by

customer interaction, which the ALJ may have found was the only cause for these difficulties. 

However, this is not clear from the record. The ALJ plainly stated that there was no evidence of

these limitations, not that the limitations could be controlled by separating Barry from customers. 

Thus, the record as a whole demonstrates that Barry suffered from at least moderate limitations in

maintaining concentration, persistence, or pace, and that limitation should have been included in

the hypothetical question. 

The Third Circuit illustrated this point in Ramirez. In Ramirez, the court ruled that when

an ALJ concluded that a claimant often suffered from limitations in concentration, persistence, or

pace, but failed to include that limitation in the hypothetical question to the VE, the hypothetical

question did not accurately convey all of the claimant’s limitations. 372 F.3d at 552. While the

limitation in Ramirez “often” occurred and here is arguably of “moderate” severity, these two

terms are essentially synonymous. The five point scale for measuring limitations in

concentration, persistence, and pace formerly was broken into categories labeled never, seldom,

often, frequent, and constant. Id. at 551. The categories have been revised, however, and the

five levels are now labeled none, mild, moderate, marked, and severe. Colon v. Barnhart, 424 F.

Supp. 2d 805, 811 (E.D. Pa. 2006). “Often” and “moderate” both occupy the middle category,

and thus, “[a] finding of ‘often’ under the old scale therefore roughly equates to a ‘moderate’

deficiency.” Id. Based on these considerations, the court concludes that the ALJ’s hypothetical

question did not adequately convey all of Barry’s limitations because it did not consider her

limitations in maintaining concentration, persistence, or pace. This could well impact on her

ability to maintain more than the part-time employment she held at the time of the hearing or her

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19

need for hourly breaks, which might also affect the VE’s opinion.

Barry also argues that the hypothetical question was deficient for failing to include

reference to her periodic isolation. Here, however, the ALJ is on firmer ground. While Dr.

Nixon’s questionnaire reported that Barry suffered from marked difficulties in maintaining social

functioning (R. 297), this finding is not supported by the rest of the record. The state agency’s

RFC assessment reported that Barry was not significantly limited in her ability to interact

appropriately with the general public, or in her ability to get along with coworkers or peers

without distracting them or exhibiting behavioral extremes. (R. 257.) The second state agency

assessment found that Barry suffered from only mild limitations in maintaining social

functioning. (R. 270.) Further, Barry testified to talking to her friend on the phone daily for an

hour, getting along with coworkers and supervisors, socializing at the grocery store, and

interacting with her physicians. Barry testified that even when she is depressed she will still talk

to her friend and at times even go over to her house for dinner. Thus, the ALJ appropriately did

not include this alleged limitation in her hypothetical question to the VE.

Similarly, the ALJ’s decision that Barry’s depression did not limit her functional ability is

also supported by substantial evidence. The ALJ correctly referred to Barry’s entire span of

medical history, and noted that records from Shore Health System in July 2001 stated that Barry

had been stable for four years. Barry was hospitalized in October 2001, but that occurred when

she was using drugs and drinking, which she no longer does. Upon release and through 2002,

records from Delmarva Family Resources consistently reported that Barry was doing well, was

alert/oriented, and had a euthymic affect. Even the September 23, 2002 physician treatment

progress note, in which Barry reported that she was getting divorced and felt more depressed,

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20

stated that Barry was handling those issues and retained a euthymic affect. (R. 255.) Further,

throughout the treatment notes from Dr. Nixon, Barry is described as demonstrating a full range

of affect, a consistent mood, and reported that she was happy to be working. Barry also testified

that when she is depressed she will sometimes stay in bed all day; however, she stated that this

was because she had a hard time finding a reason to get out of bed when she was not working,

which cannot be interpreted to limit her ability to work. (R. 80.) Also, she testified that even

when she is depressed she will talk to her friend, eat, bathe, and go to work or AA meetings. (R.

88.) She also testified that she will go to dinner with her friend while depressed. (R. 88.) 

Finally, she reported to feeling better during the past eighteen months. Accordingly, the ALJ’s

determination that Barry’s bipolar disorder only limited her ability to perform high stress jobs is

supported by substantial evidence.

Thus, the court concludes that the ALJ’s hypothetical question to the VE did not

accurately convey Barry’s limitations in concentration, persistence, or pace. Accordingly, the

Commissioner’s decision is not supported by substantial evidence. The court will thus remand

the case to the ALJ for further proceedings consistent with this opinion. See Burns v. Barnhart,

312 F.3d 113, 124 (3d Cir. 2002). 

An appropriate order follows. 

Case 2:05-cv-01825-WY Document 20 Filed 09/28/06 Page 20 of 22
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULIE BARRY,

Plaintiff,

v.

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant.

:

:

:

:

:

:

:

CIVIL ACTION

NO. 05-1825

Order

AND NOW, this ______day of September 2006, upon consideration of the parties’ crossmotions for summary judgment (Doc. Nos. 7, 8), and after careful and independent review of the

magistrate judge’s report and recommendation and the plaintiff’s objections thereto, it is hereby

ORDERED that:

1. Plaintiff’s objections are GRANTED to the extent that I am remanding.

2. The Report and Recommendation of United States Magistrate Judge David R.

Strawbridge is APPROVED except to the extent that I am remanding.

3. The plaintiff’s motion for summary judgment is GRANTED to the extent that I am

remanding.

4. The motion of defendant Jo Anne Barnhart, Commissioner of Social Security, for

summary judgment is DENIED.

5. The matter is REMANDED to the ALJ for further proceedings consistent with this

Case 2:05-cv-01825-WY Document 20 Filed 09/28/06 Page 21 of 22
memorandum and order.

 s/ William H. Yohn Jr., Judge 

 William H. Yohn Jr., Judge

 

 

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