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Thomas v. Commissioner of Social Security

United States District Court, D. Massachusetts

March 24, 2016





The plaintiff, Ashley Thomas (“Thomas”), has brought this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), in order to challenge the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for Social Security Income (“SSI”) benefits. The matter is presently before the court on the plaintiff’s “Motion to Reverse” (Docket No. 13), by which Thomas is seeking an order reversing the Commissioner’s decision and granting her claim for benefits, or in the alternative, remanding the matter to the Social Security Administration for further administrative proceedings. It is also before the court on the “Defendant’s Motion to Affirm the Commissioner’s Decision” (Docket No. 25), by which the Commissioner is seeking an order upholding her determination that Thomas is not disabled within the meaning of the Social Security Act, and is therefore not entitled to an award of SSI benefits. The principal issue raised by the parties’ motions is whether the Administrative Law Judge (“ALJ”), in reaching her decision that Thomas was not disabled, erred by failing to include certain cognitive limitations in the hypothetical questions that she posed to the Vocational Expert (“VE”), and by failing to address the VE’s testimony, on cross-examination, that an individual with such cognitive limitations would be precluded from carrying out any type of gainful employment activity. For all the reasons detailed below, this court finds that the ALJ committed no error and that her decision was supported by substantial evidence. Therefore, the plaintiff’s motion to reverse or remand is DENIED, and the defendant’s motion to affirm is ALLOWED.


Thomas was born on December 15, 1988, and was 25 years old at the time of her hearing before the ALJ. (Tr. 23). She received special education services beginning in the sixth grade, and dropped out of school before completing the ninth grade. (Tr. 23-24, 405, 614). Thomas has not obtained a GED or pursued any additional education since that time. (See Tr. 614). Although Thomas was living with a boyfriend when she applied for SSI benefits, she remains single and does not have any children. (See Tr. 24, 614).

The record indicates that Thomas has difficulty getting along with others, and has a history of psychiatric impairments. (See Tr. 612-13). It also indicates that Thomas has had very little employment experience. (See Tr. 26-27, 145, 612). Although she was able to find some work through a temp agency in 2012, Thomas contends that she “flipped out and walked off the job” after working for only about one month. (Tr. 27, 612). She further contends that she has been disabled since 2009 due to hearing loss in her right ear, memory loss, seizures, anemia, lactose intolerance and a number of psychiatric conditions including bipolar disorder, schizophrenia, depression and attention deficit disorder. (Tr. 126, 144).

Procedural History

On April 22, 2013, Thomas filed an application for SSI, claiming that she had been unable to work since July 31, 2009. (Tr. 126). Her application was denied initially on June 18, 2013, and upon reconsideration on January 7, 2014. (Tr. 45-67). The plaintiff then requested and was granted a hearing before an ALJ, which took place on June 26, 2014. (Tr. 20-44, 77-78, 92-97). Thomas, who was represented by counsel, appeared and testified at the hearing. (Tr. 23-34). She also called Aaron Henderson, one of her long-time friends, to testify on her behalf. (Tr. 35-39). In addition, the ALJ elicited testimony from Dr. Robert Lasky, a psychologist and vocational consultant who appeared in his capacity as a VE. (Tr. 39; see also Tr. 110). Dr. Lasky responded to hypothetical questions, which were aimed at determining whether jobs exist in the national and regional economies for an individual with the same age, educational background, work experience and residual functional capacity (“RFC”) as the plaintiff. (Tr. 39-44). Thomas claims that the ALJ committed reversible error by failing to include all of her mental limitations in the hypothetical question that she posed to Dr. Lasky, and by failing to credit Dr. Lasky’s responses to the questions posed by her counsel. However, this court finds that no error occurred, and that the ALJ’s treatment of Dr. Lasky’s testimony was appropriate.

Significantly, during the hearing, the ALJ asked Dr. Lasky the following hypothetical question:

Assume a person of the Claimant’s age, education, work experience. This person would be limited to simple, routine tasks; occasional decision making; occasional changes in the work setting; no interaction with the public. I’m going to further say the work is isolated with only occasional supervision, no tandem tasks of any kind. Can you identify any jobs?

(Tr. 39). Dr. Lasky responded that such an individual would have the ability to carry out the unskilled jobs of a mail clerk, a sealer of semi-conductor packages and an inspector of electrical equipment. (Tr. 39-40). He also confirmed that each of those jobs involved isolated work, and existed in significant numbers in the national and regional economies. (See Tr. 40). As described below, the ALJ relied on Dr. Lasky’s response to this question to determine that the plaintiff was capable of working, and was not under a disability within the meaning of the Social Security Act.

After the VE responded to the ALJ’s hypothetical question, Thomas’ counsel was given an opportunity to conduct cross-examination. (Tr. 40-44). During the examination, plaintiff’s counsel questioned Dr. Lasky about the aptitudes necessary to perform each of the jobs that he had described in response to the ALJ’s question. (Tr. 41). In particular, plaintiff’s counsel asked Dr. Lasky the following questions and received the following answers:

Q And if our hypothetical person was in the lowest ten percent of general learning ability, based on their IQ scores, would that be consistent with the aptitudes for the jobs you’ve given us?
A If the person is at the very lowest level, chances are that would significantly compromise their ability to perform most work even at the unskilled level.
Q Okay.
A In the particular jobs that we have here, the levels that are included - let me give you a couple of examples.
Q Please?
A If we take a look at the inspector job, for example, this is at the kind of general learning ability that’s needed for that is certainly - well, they say, the DOT, 11 to 33rd percentile, and that’s down in the lower third, not in the lower ten percent so that’s quite low. General learning ability in the mail clerk position is also down relatively low. That’s in the 34th to 66th percentile and so these are low but not as low as you’re suggesting.
Q Okay. So if our hypothetical person was in the lowest ten percent, that would be below the aptitudes listed for these jobs?
A I believe so because certainly this would indicate - strongly suggest a learning disability which would certainly compromise employability.

(Tr. 41-42). Thomas argues that her IQ scores placed her in the 8th percentile of the population. (Pl. Mem. (Docket No. 13) at 5-6). She also argues that the ALJ committed reversible error by failing to credit, or even consider, Dr. Lasky’s testimony indicating that an individual with Thomas’ IQ would be unemployable.

After questioning Dr. Lasky about the aptitudes needed to perform each of the jobs he identified, plaintiff’s counsel asked him to respond ...

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