Court of Appeals Upholds District Court

January 21, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

In a summary order, the Second Circuit upheld a decision by U.S. District Court Judge David Larimer of the Western District affirming the Commissioner.  The case, which involved a 47 year old claimant alleging disability based on depression and anxiety, had previously been remanded from the District Court by stipulation for vocational testimony.

In Calabrese v. Astrue, 592 F.Supp.2d 379 (W.D.N.Y. 2009), aff’d 2009 WL 5031356 (2d Cir. Dec. 23, 2009), the Court held that on remand the ALJ properly relied on testimony of a vocational expert (VE) to determine that claimant’s nonexertional impairments did not significantly restrict the range of work that she could perform.  The VE did not testify as to specific jobs that the claimant could perform, but only assisted the ALJ in determining whether her non-exertional limitations significantly limited the range of work she could perform.  In light of the ALJ’s finding that the non-exertional impairments had little or no effect on her occupational base of sedentary work, the ALJ was justified in using the Grid and finding her not disabled.  Because the ALJ concluded from the grids that the claimant was not disabled, he was not required to identify specific jobs she could perform.

The Court of Appeals also agreed that the hypotheticals posed to the VE accurately reflected the claimant’s limitations.  The ALJ did not err by failing to specify claimant’s IQ scores in his hypothetical question to the VE where the hypothetical included findings that were based on her limited intelligence.  The Court cited England v. Astrue, 490 F.3d 1017, 1023 (8th Cir. 2007) for the proposition that a hypothetical “need not frame the claimant’s impairments in the specific diagnostic terms used in the medical reports, but instead should capture the concrete consequences of those impairments.”

Finally, the Court found that the ALJ’s credibility finding was amply supported by evidence that the claimant took no prescription strength pain medication despite her contention that she was experiencing pain of eight on a scale of one to ten; was noncompliant in taking prescribed medication; and admitted to her ability to cook, clean, do laundry, shop and handle her own finances.

Advocates will recall that these summary orders from the Court of Appeals may be cited in future cases, but do not have precedential effect.