Filed: Feb. 03, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-3-2004 Robinson v. RRB Precedential or Non-Precedential: Non-Precedential Docket No. 03-2391 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Robinson v. RRB" (2004). 2004 Decisions. Paper 1030. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1030 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-3-2004 Robinson v. RRB Precedential or Non-Precedential: Non-Precedential Docket No. 03-2391 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Robinson v. RRB" (2004). 2004 Decisions. Paper 1030. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1030 This decision is brought to you for free and open access by the Opinions of the United St..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-3-2004
Robinson v. RRB
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2391
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Robinson v. RRB" (2004). 2004 Decisions. Paper 1030.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1030
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2391
JEFFREY ROBINSON,
Respondent,
v.
RAILROAD RETIREMENT BOARD,
On Petition for Review of a Decision of the United States
Railroad Retirement Board
(R.R.B. No. 02-AP-0115)
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2004
Before: ALITO and CHERTOFF, Circuit Judges, and
DEBEVOISE,* Senior District Court Judge
(Opinion Filed: February 3, 2004)
OPINION OF THE COURT
DEBEVOISE, Senior District Court Judge
*
Honorable Dickinson R. Debevoise, Senior United States District Judge for the District
of New Jersey, sitting by designation.
Petitioner, Jeffrey L. Robinson, filed a petition for review of a final decision of
Respondent, the United States Railroad Retirement Board (the “Board”), which affirmed
and adopted the decision of the hearings officer denying Robinson’s claim for a period of
disability and early Medicare coverage under the Social Security Act, 42 U.S.C. §301, et
seq. We find that critical findings of the hearings officer were not supported by
substantial evidence and that the hypothetical question posed to the vocational expert by
the hearings officer did not incorporate all of Robinson’s limitations. To the contrary, the
vocational expert’s testimony established that Robinson had an impairment or
combination of impairments which prevented him from performing regular employment.
We will reverse and remand with instructions that an order granting a period of disability
and early Medicare coverage be entered.
I. The Proceedings
From August 1976 until February 1998 Robinson worked as a railroad backhoe
foreman. Thereafter he applied for and was awarded an occupational disability annuity
under section 2(a)(1)(iv) of the Railroad Retirement Act, 45 U.S.C. §231(a)(1)(iv). He
established that he had a current connection with the railroad industry, had completed
twenty years of service and was found unable to perform his regular railroad occupation.
His application for an occupational disability annuity was also an application for a period
of disability and early Medicare coverage under the Social Security Act. This application
was denied on March 12, 1999.
2
On March 20, 2000, Robinson filed a second application for a period of disability
and early Medicare. His application was denied at the various administrative stages, and
he appealed. On January 31, 2002, after an evidentiary hearing, the hearings officer held
that Robinson’s impairments do not prevent him from engaging in all regular
employment. Robinson appealed to the Board. In a May 30, 2002 decision the Board
remanded the case to the hearings officer to supplement the record with testimony of a
vocational expert providing examples of jobs that Robinson could perform.
A telephone hearing was held at which a vocational expert testified in response to
hypothetical questions which the hearings officer posed and in response to questions
which Robinson’s attorney posed. In an August 9, 2002 decision the hearings officer
found once again that Robinson was not disabled from all regular employment. Robinson
appealed this decision. On March 3, 2003, the three-member affirmed and adopted the
decision of the hearings officer, with one Board member dissenting. His petition to this
Court followed.
II. The Facts
Robinson was 48 years old as of the date of the administrative hearing. He left his
position as a railroad backhoe foreman alleging disability on the basis of carpel tunnel
syndrome, right rotator cuff repair and cervical discectomy and fusion. He underwent a
cervical discectomy and fusion as well as a right subacromial decompression and distal
clavicle resection. He was operated on for the carpel tunnel syndrome, and by the time of
3
his initial hearing before the hearings officer, his primary care physician, Lance C.
Sweeney, D.O., diagnosed his impairments as i) cervical disc degeneration, ii) neck pain,
iii) chronic right shoulder rotator cuff tendinitis, iv) lumbar disc degeneration and v) low
back pain.
In addition to continuing treatment by Dr. Sweeney, Robinson was treated by K.
Nicholas Pandelidis, M.D., an orthopedist. Robinson’s last visit to Dr. Pandelidis was
approximately one month before the hearing. At that time the doctor wanted him to have
an MRI on his lower back, but Robinson delayed the procedure because of its expense
and his lack of insurance. Both Dr. Sweeney and Dr. Pandelidis submitted reports which
were introduced in evidence before the hearings officer. A Board consultant physician,
Stephen Laucks, M.D., examined Robinson on April 18, 2000, and his report was entered
into evidence.
At the initial hearing before the hearings officer Robinson testified about his
physical condition, pain and activities. As to his former work he stated, “I would run the
backhoe to a certain extent and then I’d get off and help the men do their work, what we
had to do, and then I’d get back on and run the backhoe again if it needed to be done.”
(A.R. 152)1 . He now lives alone in a one-story house. He stated that he could stand for
one-half to one hour before experiencing unbearable pain, walk for a half hour to forty-
1
“A.R.” refers to the administrative record submitted in support of the Board’s first
decision. “S” refers to the administrative record submitted in support of the Board’s second
decision. Most of the material contained in the first record is the same as that contained in the
second record.
4
five minutes. Despite an operation he cannot do overhead lifting because of his rotator
cuff condition. He described continuous pain in his back and extending into his neck. He
is unable to sit or to stand for any length of time. To relieve the pain he stated, “I just go
where I can stand it one way, and then I either stand up for a little while, for a little bit to
try to ease it off. Even at night time I have a hard time sleeping. I can’t even sleep.”
(A.R. 158). For medication he takes Viox, Elavil and Tylenol to relieve the pain as
prescribed by his orthopedist.
Robinson does not use a walker or a cane. He walks for about ten minutes each
day, which makes his pain feel worse. Asked how his back prevented him from working,
Robinson testified, “[b]ecause I can’t do anything. I can’t bend over, I can’t hardly walk, I
can’t hardly stand.” (A.R. 167). He loses his balance and falls about once every other
day. Because of his shoulder condition, he testified, “I don’t really have any use in my
right arm.” (A.R. 169) His condition worsened during the previous twelve months.
Robinson drives a vehicle with an automatic gear shift. He uses the car once a
week to go to the store, which is about a fifteen minute drive from his house; he visits his
mother once a day, which is about a two minute drive from his home. Once a month he
attends hour-long meetings of a Masonic Lodge, standing up during the meeting if
required to relieve the pain. He does “a little bit of my housework,” and “[I] try to do a
little bit of my laundry and do stuff around the house that I can do and other than that
there my daughters come down and give me a hand and help me do some of it,” (A.R.
5
176). He can do minor repairs such as putting a handle on a door and he does his own
cooking.
When driving to the place where the hearing took place, a distance of about forty-
five minutes from his home, Robinson had to stop the car and get out to relieve his pain.
During the hearing he was required to stand up on several occasions.
At the hearing which followed the Board’s remand of the case in order that the
hearings officer could receive the testimony of a vocational expert, a vocational expert
testified. The hearings officer first asked and the vocational expert responded:
HEARINGS OFFICER: Mr. Anderson if I find that the appellant can no
longer perform his past relevant work and that he has the following
restrictions: lifting and carrying 20 pounds occasionally, ten pound
frequently, with occasionally (sic) stair and ladder climbing, occasional
reaching in all directions with the right, upper extremity and sitting,
standing, and walking for about six hours out of an eight-house workday,
are there any skilled or semi-skilled jobs in the national economy to which
his skills are transferable given his age, his education and his work
experience?
WITNESS: No your Honor.
(A.R. 169)
Having been informed that there were no skilled or semi-skilled jobs in the
national economy to which Robinson’s skills were transferable, the hearings officer
ascertained through this vocational expert’s testimony that under the Social Security and
Railroad Retirement Board’s regulations there were 2500 unskilled jobs, 900 at the
medium-exertional level, 1400 at the light-work level and 200 at the sedentary-work
6
level.
Applying the same restrictions as set forth in the above-quoted hypothetical
question (which assumed no limitations regarding the left, upper extremity) the vocational
expert was of the opinion that there would be a 40% erosion of the 200 sedentary base
and a 60% erosion of the light - occupational base. He gave examples of kinds of
unskilled jobs that would remain in the sedentary base, e.g., surveillance system monitor,
order clerk (food and beverage), call-out operator, counter clerk, ticket taker, and parking
lot cashier.
At that point the hearings officer added additional limitations to his hypothetical-
lifting a maximum of 10 pounds, with occasional bending, occasional stooping,
occasional kneeling, crouching, and crawling and several other limitations:
HEARINGS OFFICER: If in addition to the previous restrictions I find that
the appellant has the additional restrictions of lifting a maximum of 10
pounds, with occasional bending, occasional stooping, occasional kneeling,
crouching, and crawling, the need to avoid climbing and balancing, the need
to avoid working at heights, and around dangerous machinery, and an
additional restriction of avoiding repetitive activities with both upper
extremities, and avoid operating hand controls.
…
HEARINGS OFFICER: What effect would these additional restrictions
have on the jobs to which you testified?
WITNESS: I think all those positions would remain, including the light, as
well as sedentaries.
HEARINGS OFFICER: If in addition to the previous restriction I find that
the appellant has the additional restriction of no overhead reaching with the
7
right, upper extremity, what effect would that additional restriction have on
the jobs to which you testified?
WITNESS: No further relation.
(A.R. 172-74).
This hypothetical was based upon a finding that Robinson could engage in
occasional stooping, occasional kneeling, crouching, and crawling. It contained the
assumption that Robinson could sit, stand and walk about six hours in an eight hour
workday. Then the hearings officer asked a hypothetical which incorporated the
following limitations:
HEARINGS OFFICER: If I make a finding which is consistent with all of
the restrictions to which the appellant previously testified, namely that he
can stand no more then one hour at a time, walk for no more then one hour,
sit for a maximum of 45 minutes, lift and carry less than ten pounds, never
bend, should avoid performing fine and gross manipulated bilaterally, are
there any jobs that he can do in the national economy?
WITNESS: The erosion of the occupational brief would be complete.
There would be no jobs.
(A.R. 174)
On cross-examination Robinson’s attorney followed up on the situation that would
exist if Robinson could not work a full day:
ATTORNEY: Okay. Last couple questions I have, just you’re familiar with
social security’s definition of regular and continuing basis?
WITNESS: Okay. Yes.
ATTORNEY: And is it your understanding that that means full-time work?
8
WITNESS: Yes.
ATTORNEY: Okay. And how do you define that in terms of hours or
days?
WITNESS: Well that may vary depending on the length of the lunch break.
Lunch breaks today are normally, today, are one-half hour and there would
be a 15-minute break in the morning and a 15-minute break in the
afternoon. Ah, with the total usually equaling eight hours, but occasionally
seven and a half-hours.
ATTORNEY: I’m not going to go through the different medical evidence
that, you know, basically states that Mr. Robinson couldn’t work eight
hours a day, but it’s your opinion that if someone couldn’t work on a full-
time basis like that that that’s (sic), ah, would be a problem for most
employers?
WITNESS: Yeah.
ATTORNEY: Okay. And in fact, that they wouldn’t be employable?
WITNESS: I don’t think they’d be employable physically, ah, but you
know, that’s what the judge’s . . .
(A.R. 181-83)
The hearings officer’s August 9, 2002 decision must be read in conjunction with
her January 31, 2002 decision. Pursuing the applicable five-step sequential evaluation
process the hearings officer resolved the first four requirements, namely, that Robinson
was not working, that he has severe impairments that affect his ability to perform basic
work activity, that his impairments do not meet any of the impairments listed in the Social
Security Administration’s Listing of Impairments, 20 C.F.R. §404.1520(d), and that he
was unable to perform his past relevant work as a backhoe operator and track repairman
9
which involved medium and heavy work. These findings are not in dispute on this
appeal.
The hearing officer’s critical finding which is at the heart of this appeal is:
The hearings officer finds that the appellant, despite his impairments, can
perform sedentary work consisting of occasional bending, stooping, kneeing
(sic), crouching and crawling. He should avoid climbing and balancing,
working at heights and around hazards. Based on the appellant’s history of
right rotator cuff tendinitis and bilateral carpel tunnel syndrome, he should
avoid repetitive activities with the upper extremities, reaching and overhead
activities with the right upper extremity, and operating hand controls.
(A.R. 006)
Implicit in the finding that Robinson was capable of performing sedentary work
was a finding that he could sit for about six hours in an eight-hour day. The controlling
hypothetical addressed to the vocational expert assumed that Robinson could sit, stand
and walk for about six hours of an eight-hour day. The hearings officer recognized that
there was evidence that Robinson could never bend, stoop, kneel, crouch, or crawl, and
she provided her reasons for rejecting that evidence. She noted that although Robinson’s
gait is slow, he does not use a cane, walker or crutches for ambulation and does not use a
back brace. She also found that Robinson’s testimony that he is able to do household
chores, laundry and small repairs, that he prepares dinner, attends a lodge meeting once a
month, drives and visits his mother once a day and drives to the store once a week
demonstrates that his “activities of daily living and social functioning are not significantly
limited. The appellant’s activities indicate that his remaining exertional and manipulative
10
abilities would not prevent him from performing sedentary work.” (A.R. 006)
The hearings officer recited that “[t]he Railroad Retirement Board regulations
define sedentary work as involving lifting no more than 10 pounds at a time with
occasionally lifting and carrying articles like small tools or ledgers, and sitting for
approximately six hours out of an eight-hour work day with occasional standing and
walking.” (A.R. 007)
In her previous January 31, 2002 decision the hearings officer summarized the
medical reports of Robinson’s orthopedic physician, Dr. Pandelidis, and of the Board
consultant, Dr. Laucks.
Referring to Dr. Pandelidis’s reports, the hearings officer ruled that a basis for
rejecting his opinions was the inconsistency in the opinions expressed in different reports.
Specifically she noted that in his February 4, 2000 assessment Dr. Pandelidis stated that
Robinson should be able to sit, stand and walk for less than six hours out of an eight-hour
workday; in his January 14, 2001 report Dr. Pandelidis stated that Robinson can sit, stand
and walk less than one hour out of an eight hour workday; in his August 17, 2001 Dr.
Pandelidis concluded that Robinson can sit, stand and walk for less than two hours in an
eight hour workday. The hearings officer, in addition to noting these inconsistencies
concluded “that none of the assessments are consistent with objective medical findings.”
(A.R. 010)
The hearings officer found in her first opinion that Robinson’s complaints of
11
disabling pain “are out of proportion to the medical evidence” and that Robinson’s
“activities of daily living and social functioning are not significantly limited. The
appellant’s activities indicate that his remaining exertional and manipulative abilities
would not prevent him from performing sedentary and light work.” (A.R. 011).
This conclusion in the first opinion was modified in the hearing officer’s second
opinion in which she found that Robinson had the “residual functional capacity to
perform sedentary work that consists of occasional bending, stooping, kneeling,
crouching and crawling.” (S-008).
Citing Social Security Administration records that recognize 200 unskilled
occupations, each representing numerous jobs on the national economy, the hearings
officer relied on the vocational expert’s testimony that Robinson could perform 60
percent of the sedentary occupations. She found that “[t]he above numbers represent jobs
in such significant numbers that the appellant cannot be considered disabled for all
substantial employment.” (A.R. 007). The hearings officer concluded on the basis of this
finding that Robinson was not entitled to a period of disability under §216(i) of the Social
Security Act or early Medicare coverage.
A majority of the Board affirmed the denial of Robinson’s claim, and Robinson’s
petition followed.
IV. Discussion
This Court has jurisdiction of a petition from a decision of the United States
12
Railroad Retirement Board.
A decision of the Board will not be set aside if it is supported by “substantial
evidence on the record, when viewed in the light that record in its entirety furnishes,”
Kelly v. Railroad Retirement Board, 625 F.2d 486, 493 (3d Cir. 1980). Substantial
evidence is that which a reasonable mind would accept as adequate to support the result.
Richardson v. Perales,
402 U.S. 389, 401 (1971). In arriving at his or her findings a
hearings officer must accord a treating physician substantial weight. Morales v. Apel,
225 F.3d 310, 317 (3d Cir. 2000). Similarly, Social Security regulations provide that a
treating physician’s opinion is given great weight provided it is “well supported by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R.
§404.1527(d)(2).
Robinson challenges the hearings officer’s findings in two critical respects. First,
Robinson challenges the finding that he could perform sedentary work which required
occasional bending, stooping, crouching and squatting and the ability to sit approximately
six hours out of an eight-hour workday with occasional standing and walking. The fact
that Robinson possessed these abilities was incorporated in the hearings officers
hypothetical question posed to the vocational expert. Second, Robinson challenges the
finding that his “subjective complaints . . . are not fully credible. . .” (A.R. 012).
It is highly questionable whether the hearings officer’s finding that Robinson could
occasionally bend, stoop, crouch and squat is supported by substantial evidence. Dr.
13
Pandelidis was Robinson’s orthopedic specialist for a number of years. In a March 2000
report he checked the space between “occasionally” and “never” on the form where it
called for his evaluation of Robinson’s ability to bend/stoop, crouch/squat/climb. In
January 2001 evaluation he checked the bend/squat category “occasionally” and the
crawl/climb category “never.” Robinson’s impairments were progressive and in his
August 2001 report Dr. Pandelidis was not called upon to evaluate Robinson’s ability to
bend/stoop, crouch/squat/climb but instead found him to be “totally disabled.”
The Board’s own consultant stated that “I would relate the claimant’s reliability as
good”, (S-051) and concluded that “I think stooping and kneeling would be very difficult
for this patient secondary to the pain he expresses when moving in these fashions.
Likewise, crouching and crawling would be [extremely] difficult and uncomfortable for
this patient.”
More critical was the hearings officer’s finding that Robinson could sit for a
period of approximately six hours in an eight-hour working day. Robinson’s own
testimony demonstrated that he was capable of sitting continuously only for a period of 45
minutes to an hour. This was evidenced by his inability to drive to the first hearing
without stopping his automobile once during the short trip from his home to the site of the
hearing in order to relieve his back pain. It was evidenced by his need to stand on several
occasions during the course of a relatively brief hearing. It was evidenced by the
extremely limited activities of his daily life.
14
This inability to sit, a requirement for a sedentary job, was confirmed by three
reports of the orthopedist, Dr. Pandelidis. The hearings officer advanced two reasons for
rejecting Dr. Pandelidis’s reports, neither of which survive examination: i) an asserted
inconsistency in the reports and ii) inconsistency with objective medical findings. As to
the first ground, the hearings officer stated: “[t]he hearings officer notes the
inconsistencies in the various assessments provided by Dr. Pandelidis.”
The so-called “inconsistencies” concern the length of time that the orthopedist
estimated that Robinson could sit in an eight-hour workday: i) less than six hours in his
March 2000 report; ii) less than one hour in his January 2001 report and iii) less than six
hours in his August 2001 report. The “inconsistency” is not attributable to Dr. Pandelidis;
it is attributable to the forms that the Board required him to complete.
The question on the Board’s form used in March 2000 and in August 2001 read:
In an 8 hour workday, claimant can sit:
G less than 6 hours total G 6 hours or more
The question on the Board’s form used in January, 2001 read:
In an 8 hour day, claimant can sit without taking measure to relieve his
pain.
____1___2___3___4___5___6___7___8___ hours.
In each case Dr. Pandelidis checked the lowest number of hours that the form
permitted. His answers were perfectly consistent with each other, with his opinions and
15
with Robinson’s persuasive testimony that approximately one hour was as long as he
could sit without taking measures to relieve pain.
The hearings officer’s statement that none of Dr. Pandelidis’s assessments are
consistent with the objective medical findings ignores evidence in the record. Dr.
Pandelidis diagnosed Robinson’s impairments as cervical disc degeneration, lumbar disc
degeneration and right shoulder rotator cuff tendinitis. These conditions were confirmed
by the physical examination which the Board’s consultant, Dr. Laucks, performed on
April 18, 2000. As early as September 1994 a myelogram demonstrated a minimal bulge
at L4-L5 (S-0120, 0121). In June 1996 an MRI showed evidence of degeneration at the
C6-7 disc (S-0106). A September 1997 M RI showed “some subacromial chronic
impingement, with degenerative tendinosis on the supraspinaties. No rotator cuff tear is
demonstrated.” (S-0105). The record contains several reports of Earl J. Wenner, Jr.,
D.O., FAA, PMR who engaged in electrodiagnostic testing relating primarily to
Robinson’s carpel tunnel syndrome and cervical difficulties.
The hearing officer’s finding that Robinson could perform sedentary work, i.e.,
that he could sit for approximately six hours out of an eight-hour day with occasional
standing and walking, was not supported by substantial evidence.
Further, the hearings officer’s reasons for rejecting Robinson’s complaints of pain
do not find support in the record. She cited his ability to do household chores, laundry
and small repairs and prepare dinner without noting the extremely limited nature of his
16
performance of these tasks. She cited Robinson’s daily visits with his mother and weekly
drive to a store without noting that the mother lives but two minutes distance from his
home and that the store is but fifteen minutes from his home. She failed to note that he
was unable to drive the short distance from his home to the first hearing without stopping
to relieve his pain or that he was required to stand several times during the hearing. She
did not refer to the greatly circumscribed nature of the activities in which Robinson is
able to engage during each day of his life. The finding that Robinson’s “activities of
daily living and social functioning are not significantly limited” (S-006) is clearly not
supported by the record.
Nor is the hearing officer’s finding that Robinson’s complaints of disabling pain
are out of proportion to the medical evidence and are not fully credible supported by the
record (A.R. 011,012).
Robinson’s complaints of pain are fully supported by the reports of his treating
orthopedist, by the report of his internist, Dr. Sweeney, and even by the report of the
Board consultant, Dr. Laucks. These reports are referred to above in connection with the
hearings officer’s finding that Robinson could sit for six hours during an eight-hour
workday. The degree of pain is confirmed by the limited activities in which Robinson
engages.
Having concluded that the hearings officer’s finding that Robinson could engage
in sedentary work is not supported by substantial evidence, it follows that the opinions of
17
the vocational expert provide no support whatsoever for the hearings officer’s finding that
there are jobs in the national economy that Robinson could perform, and that, therefore,
he is not disabled.
The hearings officer asked a hypothetical based upon the residual functional
capacity to lift and carry 20 pounds occasionally, 10 pounds frequently, with occasional
stair and ladder climbing, occasional reaching in all directions with the upper right
extremity and sitting, standing and walking for about six hours in an eight-hour day. The
vocational expert testified that with these limitations there would be a loss of
approximately 40% of the 200 sedentary occupations, leaving 60% which Robinson could
perform. When the vocational expert added the additional limitations of lifting a
maximum of 10 pounds, with occasional bending, stooping, kneeling, crouching and
crawling, the need to avoid climbing and balancing, the need to avoid working at heights
and around dangerous machinery, and an additional restriction of avoiding repetitive
activities with both upper extremities and avoiding operating hand controls, the
vocational expert testified that positions would exist to the same extent as he previously
testified in response to the first hypothetical.
Each of these hypothetical questions contained at least one, and perhaps two,
major factual assumptions which are not supported by substantial evidence. The finding
that Robinson could occasionally bend, stoop, kneel, crouch and crawl is supported by
only the slimmest evidence. The finding that Robinson could sit, stand and walk for
18
about six hours in an eight-hour day is not supported by substantial evidence and, in fact
is, conclusively negated by the evidence before the hearings officer. A hearings officer’s
(or ALJ’s) decision, insofar as it is based upon a vocational expert’s responses to
hypothetical questions, is not supported by substantial evidence if the hearings officer (or
ALJ) did not accurately portray the claimant’s impairments and limitations. Chrupcala v.
Heckler, 829 F.2d 1269 (3d Cir. 1987). The vocational expert’s response to the hearings
officer’s hypothetical in this case was based on assumptions which lacked support in the
record. Consequently the finding that despite Robinson’s impairments there are a
significant number of jobs in the national economy that he could perform must be
rejected.
Contrary to the hearings officer’s finding, the testimony of the vocational expert
affirmatively establishes that there are no jobs in the national economy that Robinson
could perform. When asked whether Robinson’s inability to work eight hours a day
would be a problem for most employers, the vocational expert responded, “I don’t think
they’d be employable physically . . .” (S-182, 183).
V. Conclusion
The hearings officer’s finding that Robinson is not disabled is not supported by
substantial evidence. This case has been before a hearings officer and the Board on two
occasions. The Board and the hearings officer found on each of those occasions that only
the finding that there were jobs in the national economy which he could perform
19
prevented Robinson from prevailing on his claim. We have found that finding is not
supported by substantial evidence and that the evidence can only support a finding that
Robinson is disabled. Consequently, he is entitled to the relief he sought. For the reasons
set forth in this opinion we will reverse the decision of the Board and remand the case to
the Board with instructions to grant Robinson’s claim for a period of disability and early
Medicare coverage under the Social Security Act.
/s/ Dickinson Debevoise
SENIOR DISTRICT COURT JUDGE
20
