# Laura Russo v. Comm Social Security

> Court of Appeals for the Third Circuit · April 6, 2011 · 421 F. App'x 184

URL: https://www.frixlaw.com/law-library/cases/214092

## Case

- **Full name:** Laura J. RUSSO, Appellant v. Michael J. ASTRUE, Commissioner of Social Security
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** April 6, 2011
- **Citations:** 421 F. App'x 184
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Van Antwerpen
- **Judges:** Fuentes, Smith, Van Antwerpen
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/214092

## How later opinions describe it (automated extraction)

- concluding that treating physician’s opinion should not be afforded controlling weight because it was inconsistent with other substantial evidence in the case record, “particularly [claimant’s] list of daily activities’
- finding “hypothetical question accurately conveyed all of” the plaintiff’s limitations where the hypothetical individual could understand, remember, and 29 carry out simple instructions, which reflected the plaintiff’s moderate difficulties in concentration
- finding it notable that plaintiff continued working after the alleged onset date even though that work did not reach the level of substantial gainful activity
- affirming ALJ’s denial of social security benefits when the ALJ found the claimant engaged in substantial gainful activity for a period of time after the alleged disability onset date, precluding a disability finding for that period
- finding the ALJ was not required to give a doctor’s opinion controlling weight because it was inconsistent with other evidence in the record and the claimant’s daily activities

## Opinion text

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 10-2772
______

LAURA J. RUSSO,
Appellant

v.

MICHAEL J. ASTRUE,
Commissioner of Social Security

______

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 09-cv-0086)
District Judge: Honorable Gregory M. Sleet
______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 21, 2011

Before: FUENTES, SMITH, and VAN ANTWERPEN, Circuit Judges

(Filed: April 6, 2011)
______

OPINION OF THE COURT
______

VAN ANTWERPEN, Circuit Judge.

Appellant, Laura J. Russo (“Russo”), challenges the denial of her application for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under

Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f.
Because the decision of the Administrative Law Judge (“ALJ”) was supported by

substantial evidence, we will affirm.

I. FACTS

On February 16, 2006, Russo applied for DIB and SSI under the Social Security

Act. Prior to filing her application, Russo had been employed as a data entry clerk.

Russo’s application claimed she had suffered from anxiety attacks, depression, stress, and

schizophrenia since November 15, 2005. After applying for benefits, Russo was

diagnosed with bipolar disorder and began taking prescribed medications. The state

agency denied Russo’s application initially and upon reconsideration. Russo requested

an administrative hearing which was held on July 23, 2008. Counsel represented Russo

at the hearing. Russo presented medical records and testified. Russo’s mother and a

vocational expert (“VE”) also testified. We briefly summarize Russo’s evidence here.

According to medical records, Russo saw Dr. Aydin Z. Bill, a psychiatrist, every

month or two from 1998 through 2005. Dr. Bill’s treatment notes indicate that Russo

was more talkative and active in March, 2005 and feeling better in December, 2005.

(Appx. at 33.) On February 9, 2006, Russo suffered “depression and suicidal ideas,”

checked into a hospital, received care, was discharged on February 14, 2006, and

remained on outpatient care through February 22, 2006. (Id.) On August 1, 2006, Dr.

Brian Simon, a licensed psychologist with the Delaware Disability Service (“DDS”),

evaluated Russo, finding that she had fair attention and concentration, could perform

serial calculations, had fair judgment, denied suicidal feelings, could follow simple

directions, and got along with people. Dr. Simon ultimately diagnosed Russo with

2
“general anxiety disorder, major depressive disorder” and rated her Global Assessment of

Functioning (“GAF”) at 54. 1 (Id. at 6.) On September 20, 2006, a DDS Residual

Functional Capacity (“RFC”) 2 assessment determined that Russo had resolved her

previous problems and could perform low stress, repetitive work. From March, 2007

through September, 2007, Dr. Bill’s notes indicated that Russo was improving.

On November 21, 2007, Russo began seeing Dr. Suzy Nashed. Dr. Nashed

initially assessed Russo’s GAF at 55. (Id. at 34.) On December 26, 2007, Dr. Nashed

noted that Russo was “doing a lot better.” (Id. at 8.) On February 26, 2008, Dr. Nashed

noted that although Russo’s medications were helping, as of March 18, 2008, some

residual psychosis remained. According to Dr. Nashed’s records, on April 22, 2008,

Russo expressed some suicidal ideation, but on May 9, 2008, Russo told Dr. Nashed she

was “doing much better.” (Id.) At the May 9, 2008 meeting, Dr. Nashed diagnosed

Russo as bipolar. Finally, on June 23, 2008, Dr. Nashed “felt that Russo should receive

social security benefits, based on her ‘limited cognitive capacity,’ as evidenced by her

previous six year work history and her present inability to follow medication schedules.”

(Id. at 8-9.)

At the evidentiary hearing, in addition to the presentation of medical records, the

ALJ heard testimony from Russo, Russo’s mother, and a VE. Russo testified about her

1
The GAF is a scale ranging from zero to one hundred used by clinicians to rate an
individual’s psychological, social, and occupational functioning. See AM. PSYCHIATRIC
ASSOC., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th Ed.,
Text Revision 2000).
2
“Residual functional capacity” is defined as “the most [a claimant] can still do despite []
limitations.” 20 C.F.R. § 416.945(a).
3
employment history, including her work as a data entry clerk at Chase Manhattan Bank

for six years from December, 2000 until February, 2006, and as a daycare worker and as

an employee at Wendy’s in 2007. Russo discussed her medical treatment and

medications. She also testified as to her daily activities, which include going to the gym,

swimming, shopping, doing chores, running errands, watching television, reading,

attending church, visiting the beach, and babysitting her nieces. (Id. at 33.) The ALJ

found Russo “not credible” because of inconsistencies between Russo’s testimony and

Russo’s written documentation. (Id.)

Russo’s mother, Jane Woerner (“Woerner”), testified that Russo suffered anxiety

and panic attacks, that Russo lived with her because Russo could not afford to live on her

own, and that Russo’s mental health had improved with medication. The VE testified

that Russo could perform past relevant work as a data entry clerk and as a daycare

worker, order filler, and fast food worker. The ALJ posed four hypothetical questions to

the VE, all four of which premised a 31-year old individual who had a high school

education, could read, write, use numbers, and had Russo’s past work history. (Id. at 11.)

Specifically, the third hypothetical question posited an individual who “could understand,

remember, and carry out simple instructions, would have limited contact with the public

and coworkers, and would not have a quota to fulfill.” (Id.) The VE responded that such

a person could “perform medium exertion, unskilled positions.” (Id.)

On August 29, 2008, the ALJ denied Russo’s application. On September 4, 2008,

the Social Security Appeals Council denied Russo’s request for review. On February 9,

2009, Russo appealed to the United States District Court for the District of Delaware, and

4
the parties cross-moved for summary judgment. On May 10, 2010, the District Court

denied Russo’s motion for summary judgment and granted the Commissioner’s motion

for summary judgment, thereby affirming the ALJ’s decision. On June 11, 2010, Russo

timely appealed to this Court.

II. JURISDICTION AND STANDARD OF REVIEW

We have appellate jurisdiction pursuant to both 28 U.S.C. § 1291 and 42 U.S.C. §

405(g). We review the ALJ’s decision, which is the final decision of the Commissioner.

See Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). “[W]e must uphold a final

agency determination unless we find that it is not supported by substantial evidence in the

record.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); 42 U.S.C. § 405(g).

“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003).

III. ANALYSIS

A. Administrative Framework and the ALJ’s Decision

Under the Social Security Act, a “person who has a ‘disability’ is entitled to SSI

payments . . . .” Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). A “disability” is

the “inability to engage in substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Ramirez, 372

F.3d at 550. However, a claimant is potentially eligible for benefits only if the claimant’s

impairments “are of such severity that he is not only unable to do his previous work but

cannot, considering his age, education and work experience, engage in any other kind of

5
substantial gainful work which exists in the national economy.” 42 U.S.C. §

423(d)(2)(A); Knepp, 204 F.3d at 83.

To determine whether a claimant is disabled and thus entitled to benefits, the

Social Security Administration has promulgated a five-step process. 20 C.F.R. §§

404.1520, 416.920. According to this process:

First, the Commissioner must determine whether the claimant has engaged
in substantial gainful activity since his alleged disability onset date. [20
C.F.R. §§ 404.1520(b), 416.920(b)]. If not, the Commissioner next
determines whether the claimant has an impairment or combination of
impairments that is severe. Id. §§ 404.1520(c), 416.920(c). If the claimant
has a severe impairment, the Commissioner considers whether the
impairment meets the criteria of an impairment listed in Appendix 1 of 20
C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed
impairment. If so, the claimant is automatically eligible for benefits; if not,
the Commissioner proceeds to step four. Id. §§ 404.1520(d), 416.920(d).
In step four, the Commissioner determines whether, despite the severe
impairment, the claimant retains the residual functional capacity to perform
his past relevant work. Id. §§ 404.1520(e), (f), 416.920(e), (f). The
claimant bears the ultimate burden of establishing steps one through four.
Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). At step five, the
burden of proof shifts to the Social Security Administration to show that the
claimant is capable of performing other jobs existing in significant numbers
in the national economy, considering the claimant’s age, education, work
experience, and residual functional capacity. Id. at 551.

Poulous v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007).

Here, at step one, the ALJ determined that Russo had engaged in substantial

gainful employment as a data entry clerk from the alleged disability onset date of

November 15, 2005 until February 2, 2006 and was thus not eligible for benefits prior to

February 3, 2006. (Appx. at 30.); see 20 C.F.R. § 404.1520(a)(4)(i) (claimant not

disabled if engaging in substantial gainful activity). However, because the ALJ then

found that Russo had not engaged in substantial gainful employment after February 2,

6
2006, the sequential evaluation would continue for the period from February 3, 2006

through August 29, 2008 (the date of the ALJ’s decision). (Appx. at 30.) At step two, the

ALJ found that Russo had “severe impairments”: affective disorder and anxiety disorder.

(Id. at 31.); see 20 C.F.R. § 404.1520(c). At step three, the ALJ determined that Russo

did not automatically qualify for benefits because Russo had no impairment or

combination of impairments that met the criteria in the Listings. (Appx. at 31.); see 20

C.F.R. § 404.1520(d). At step four, the ALJ determined that Russo had the residual

functional capacity to perform work that is “limited nonexertionally due to [Russo’s]

psychologically based symptoms . . . .” (Appx. at 31.) Accordingly, Russo “should avoid

complex tasks and instructions as found in skilled work, but [Russo] is able to understand

instructions adequately, and maintain persistence and pace adequately.” (Id.) At step

five, the ALJ concluded that Russo was capable of performing past relevant work as a

data entry clerk, a day care provider, a fast food worker, and an order clerk. (Id. at 34.)

After progressing through the five-step analysis, the ALJ ultimately determined that

Russo had the RFC to perform past relevant work and, accordingly, had not been under a

disability from November 15, 2005 through the date of decision on August 29, 2008. (Id.

at 35.)

Our review of the ALJ’s decision satisfies us that it was supported by substantial

evidence. As required by regulation, the ALJ’s RFC assessment considered all relevant

evidence, including Russo’s medical records, medical source opinions, and Russo’s own

testimony. See 20 C.F.R. § 404.1545(a). The evidence supported the ALJ’s finding that

Russo had the RFC to perform non-complex work. (Appx. at 32.) For example, Russo

7
testified that she was able to go to the gym and pool, drive, shop for groceries, do some

chores, watch television, attend church, visit the beach, and babysit her nieces. Notably,

Russo continued to work as a data entry clerk until February, 2006 – after the alleged

disability onset date of November, 2005. See 20 C.F.R. § 404.1571 (work done during

alleged disability period may show that claimant can work at substantial gainful activity).

The ALJ also considered the testimony of Russo’s mother, who testified that although

Russo cannot keep house, is tired, has difficulty following directions, and gets stressed at

work, Russo can take care of herself, eat out, and was doing better on new medications.

Finally, the ALJ considered Russo’s medical evidence. Dr. Bill’s notes indicated that

Russo was improving prior to her episode of depression in February, 2006. Russo’s

subsequent medical records show that Dr. Simon diagnosed her as suffering from

“general anxiety disorder and major depressive disorder, recurrent, moderate, in full

remission (provisional),” but that Russo had a GAF score of 54. (Appx. at 34.) Dr.

Nashed rated Russo’s GAF at 55 and noted improvement in Russo’s condition from

November, 2007 through June, 2008. In the conclusion of her decision, the ALJ wrote

that Russo’s “impairments are severe in that they have more than a minimal affect [sic]

on her ability to function, [but] they are not totally disabling and do not preclude the

performance of all substantial gainful activity.” (Id. at 34.) Accordingly, the ALJ

determined that, given her RFC, Russo could perform past relevant work as a data entry

clerk. (Id. at 34.) We think substantial evidence supports this assessment.

B. Russo’s Alleged Errors

8
Nevertheless, Russo argues that substantial evidence did not support the ALJ’s

RFC determination because the ALJ: (1) relied exclusively on Russo’s activities of daily

living and accorded too much weight to these activities; (2) did not give appropriate

weight to the medical opinion of Russo’s treating physician, Dr. Nashed; and (3) posed

deficient hypothetical questions to the VE. All three arguments fail.

Contrary to Russo’s first argument, the ALJ did not rely exclusively on Russo’s

activities of daily living in assessing Russo’s RFC. Regulations require that, in addition

to activities of daily living, an ALJ also consider social functioning, concentration,

persistence or pace, and episodes of decompensation when assessing a claimant’s

impairments. 20 C.F.R. § 404.1520a(c). Here, the ALJ explicitly considered all four of

these categories when rating the severity of Russo’s mental impairments. (Appx. at 32.)

The ALJ’s subsequent RFC analysis “reflect[ed] the degree of limitation” found in the

mental function analysis, (Appx. at 32.), and considered, in detail, the impact of these

limitations on Russo’s RFC as required by 20 C.F.R. 404.1529(d)(4). Specifically, the

ALJ discussed Russo’s “mild restriction” in activities of daily living, noting that Russo

drives, goes to Curves and the pool, does grocery shopping, does chores, goes to church

and the beach, and babysits her nieces. (Appx. at 31, 33.). Similarly, with respect to

Russo’s “mild difficulties” in social functioning, the ALJ noted that Russo goes to the

gym, the pool, the mall, church, and the beach. (Id.) Regarding Russo’s “moderate

difficulties” with concentration, persistence or pace, the ALJ noted Russo’s difficulties

with concentration but recognized that “on formal evaluation [Russo’s] concentration and

attention were fair.” (Id. at 31.) Finally, the ALJ noted that while working at Chase,

9
Russo had “one to two episodes of decompensation.” (Id.) Thus the ALJ’s RFC

assessment considered all four categories of functioning.

Moreover, the ALJ’s RFC assessment discussed Russo’s functional limitations in

detail and gave appropriate weight to Russo’s activities of daily living. Russo argues that

the ALJ ignored the depression, anxiety, and lack of motivation she feels when pursuing

these daily activities. But the ALJ found that Russo’s “statements concerning the

intensity, persistence and limiting effects of these symptoms are not credible to the extent

they are inconsistent with the residual functional capacity assessment . . . .” (Id. at 33

(emphasis added).) Specifically, the ALJ found Russo’s testimony not credible because it

conflicted with her activities of daily living. For example, Russo minimized her ability to

do household chores, but her written documentation stated that she goes grocery

shopping, does laundry and vacuums, and takes her dogs for walks. (Id.) Because the

ALJ found that Russo lacked credibility, the ALJ’s RFC assessment discounted Russo’s

alleged impairments. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir.

1999) (rejecting claimant’s subjective testimony where ALJ found claims not credible).

Finally, as required, the ALJ provided a thorough analysis of which evidence she rejected

and which evidence she credited in making her decision. (Appx. at 33.); see Schaudeck,

181 F.3d at 433. In light of the ALJ’s analysis of Russo’s activities of daily living and

credibility determination, we reject Russo’s first alleged error.

Russo’s second alleged error is that the ALJ’s RFC assessment failed to give

appropriate weight to Dr. Nashed’s medical opinion. This argument also fails. We have

held that “an ALJ may not simply ignore the opinion of a competent, informed, treating

10
physician.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986). Similarly, when

making a residual functional capacity determination, “an ALJ may not reject pertinent or

probative evidence without explanation.” Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,

204 (3d Cir. 2008). According to regulation, we will give a treating physician’s opinion

controlling weight if the “treating source’s opinion on the issue(s) of the nature and

severity of [the claimant’s] impairment(s) is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in [the claimant’s] case record . . . .” 20 C.F.R. § 404.1527(d)(2).

Indeed, “treating physicians’ reports should be accorded great weight, especially ‘when

their opinions reflect expert judgment based on a 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)). However, if

the treating physician’s opinion is not given controlling weight, the ALJ applies the

factors listed in 20 C.F.R. § 404.1527(d)(1)-(6) to determine the appropriate weight to

give a medical opinion. 3 See 20 C.F.R. § 404.1527(d)(1). In short, “[i]n making a

residual functional capacity determination, the ALJ must consider all evidence before

him . . . . Although the ALJ may weigh the credibility of the evidence, he must give some

3
These factors include: (1) examining relationship; (2)(i) length of treatment relationship
and frequency of examination; (2)(ii) nature and extent of the treatment relationship; (3)
degree to which evidence supports the opinion; (4) consistency of the record as a whole;
(5) specialization of the physician; and (6) other factors, such as any other information
which would tend to support or contradict the medical opinion. See 20 C.F.R. §
404.1527(d)(1)-(6).
11
indication of the evidence which he rejects and his reason(s) for discounting such

evidence.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Here, the ALJ considered Dr. Nashed’s opinion but rejected it. Dr. Nashed opined

that she “felt that Russo should receive social security benefits, based on her ‘limited

cognitive capacity,’ as evidenced by her previous six year history and her inability to

follow medication schedules.” (Appx. at 8-9.) The ALJ did not accord controlling

weight to Dr. Nashed’s opinion because it was inconsistent with, and unsupported by,

other substantial evidence in the case record, particularly Russo’s list of daily activities. 4

See 20 C.F.R. § 404.1527(d)(3), (4), (6); Plummer, 186 F.3d at 429 (“An ALJ . . . may

afford a treating physician’s opinion more or less weight depending upon the extent to

which supporting explanations are provided.”). Upon Dr. Nashed’s first examination of

Russo in November, 2007, Dr. Nashed rated Russo’s GAF at 55, “indicating moderate

difficulty in social, occupational or school functioning.” (Appx. at 34.) However, Dr.

Nashed’s GAF rating does not resolve whether Russo was “disabled” for purposes of the

Social Security Act. Other record evidence about Russo’s daily activities, including

Russo’s own testimony, also undermines Dr. Nashed’s opinion. For example, Russo

testified that her activities include driving, going to the gym and pool, grocery shopping,

doing some chores, watching television, attending church, visiting the beach, and

4
Although the ALJ could have explained this analysis more clearly, we nevertheless
agree that objective record evidence contradicts Dr. Nashed’s opinion. See Plummer, 186
F.3d at 429 (permitting ALJ to reject treating physician’s opinion in the face of
contradictory medical evidence and where ALJ explained reasons for discounting
evidence).

12
babysitting her nieces. (Id. at 33.) Dr. Nashed noted that Russo was “doing a lot better”

in December, 2007, that medication was helping in March, 2008, and that Russo was

“doing much better” in May, 2008. (Id. at 8.) Finally, Dr. Nashed had been Russo’s

treating physician only since November, 2007. See 20 C.F.R. § 404.1527(d)(2)(i) (length

of treatment relationship is a factor when considering appropriate weight to give medical

opinion). Because this record evidence contradicts Dr. Nashed’s opinion, the ALJ was

not required to give that opinion controlling weight. 5 In short, the ALJ complied with her

obligation to consider Dr. Nashed’s opinion, and the ALJ explained her reasons for

rejecting it. Burnett, 220 F.3d at 122; Johnson, 529 F.3d at 204. Accordingly, we find

Russo’s second claim of error unavailing.

We now turn to Russo’s third alleged error: that the hypothetical questions posed

by the ALJ to the VE were flawed because they did not contain all of Russo’s

restrictions. Accordingly, Russo argues that these deficient hypothetical questions cannot

provide the basis for a proper RFC assessment. We disagree because the third

hypothetical question posed by the ALJ to the VE conveyed all of Russo’s limitations.

According to the Social Security regulations, “a vocational expert or specialist

may offer expert testimony in response to a hypothetical question about whether a person

with the physical and mental limitations imposed by the claimant’s medical

5
We also note that Dr. Nashed’s opinion whether Russo should receive disability benefits
was not entitled to controlling weight because that determination is reserved for the
Commissioner. See 20 C.F.R. §§ 404.1527(e), 416.927(e); Adorno v. Shalala, 40 F.3d
43, 47-48 (3d Cir. 1994) (“We recognize, of course, that a statement by a plaintiff’s
treating physician supporting an assertion that she is ‘disabled’ or ‘unable to work’ is not
dispositive of the issue.”). Dr. Nashed could properly opine on Russo’s functional
limitations but not the ultimate issue whether Russo was eligible for benefits.
13
impairment(s) can meet the demands of the claimant’s previous work.” 20 C.F.R. §

404.1560(b)(2). When posing hypothetical questions, “the ALJ must accurately convey

to the vocational expert all of a claimant’s credibly established limitations.” Rutherford

v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). Here, the ALJ determined at step three of

the sequential evaluation process that Russo had the following impairments: (1) mild

restriction in activities of daily living; (2) mild difficulties in social functioning; (3)

moderate difficulties with concentration, persistence, or pace; and (4) one to two episodes

of decompensation. (Appx. at 31.); see 20 C.F.R. § 404.1525 (explaining use of “Listings

of Impairments”). Accordingly, the ALJ’s hypothetical question must have reflected all

four of these impairments. See Rutherford, 399 F.3d at 554.

All four hypothetical questions asked the VE to assume a thirty-one year old

individual with a high school education who had the ability to read, write, and use

numbers and who had Russo’s past work history. (Appx. at 11.) The ALJ’s third

hypothetical question specifically asked the VE “to assume that the individual could

understand, remember, and carry out simple instructions, would have limited contact with

the public and coworkers, and would not have a quota to fulfill.” (Id.)

We think the third hypothetical question accurately conveyed all of Russo’s

limitations. First, the hypothetical individual could “understand, remember, and carry out

simple instructions,” (Id.), which reflected Russo’s mild restrictions in daily living and

moderate difficulties in concentration. See 20 C.F.R., Part 404, Appendix 1, Listing

12.00(C)(1) (“Activities of daily living include adaptive activities . . . .”), (3)

(“Concentration . . . refers to the ability to sustain focused attention and concentration

14
sufficiently long to permit the timely and appropriate completion of tasks commonly

found in work settings.”). Second, the hypothetical individual would have “limited

contact with the public and coworkers,” (Appx. at 11.), which accounted for Russo’s mild

restrictions in social functioning. See Listing 12.00(C) (“Social functioning refers to

[claimant’s] capacity to interact . . . with other individuals.”). Finally, the hypothetical

individual “would not have a quota to fulfill,” (Appx. at 11.), which accounts for Russo’s

moderate difficulties with concentration, persistence, pace, and decompensation episodes.

See Listing 12.00(C)(4) (“Episodes of decompensation are exacerbations or temporary

increases in symptoms . . accompanied by a loss of adaptive functioning . . . as

manifested by difficulties in . . . maintaining concentration, persistence, or pace.”).

Therefore, the ALJ’s third hypothetical was proper because it “accurately convey[ed] . . .

all of [Russo’s] credibly established limitations.” Rutherford, 399 F.3d at 554. In

response to this hypothetical question, the VE concluded that such an individual could

“perform medium exertion, unskilled positions” and was not disabled. (Appx. at 11, 22.)

Therefore, the ALJ’s third hypothetical question to the VE accurately conveyed Russo’s

limitations, and the ALJ could consider the VE’s response to this question when

assessing Russo’s claim.

In conclusion, while we think the ALJ’s reasoning could have been clearer, we

nevertheless think the ALJ’s ruling was supported by substantial evidence.

IV. CONCLUSION

For the foregoing reasons, we will affirm.

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/214092. Public record. Not legal advice.