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Oskey v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

February 12, 2015

Jolynn R. Oskey, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.



Plaintiff Jolynn Oskey seeks judicial review of the final decision of Defendant Carolyn Colvin, Acting Commissioner of Social Security, denying her applications for Disability Insurance Benefits and Period of Disability under the Social Security Act. Oskey claims that the Administrative Law Judge should have found her unable to perform any past relevant work. The Court GRANTS Oskey's request for remand to the agency because the ALJ's decision cannot be supported by substantial evidence where she failed to develop a full and fair record.

A. Procedural History

Oskey applied for disability benefits in July 2010, initially alleging that she became disabled July 31, 2009. (R. 145-47.) Her application was denied first in October 2010, and again in December 2010. (R. 98-101, 103-05.) She requested an administrative law judge hearing, and appeared before ALJ Warnecke Miller on October 21, 2011. (R. 106, 32.) Oskey represented herself, and ALJ Miller obtained Oskey's (un-contested) waiver of representation. (R. 34-37.) At the hearing, she amended her disability on-set date to July 31, 2010. (R. 17, 46.) Oskey's motherin-law and vocational expert ("VE") Marie Kieffer also testified. (R. 32.) The ALJ issued a decision on March 5, 2012, concluding that Oskey was still able to work as a teacher's aide, and for that reason denied her benefits. (R. 27.) The Appeals Council denied review on July 30, 2013. (R. 1.)

Oskey filed her Complaint [DE 1] on October 3, 2013, and this Court has jurisdiction pursuant to 42 U.S.C. ยง 405(g).

B. Facts

(1) Oskey's Background and Testimony

Oskey was 55 years old at the time she alleges she became disabled. (R. 145.) At the hearing, Oskey testified that she completed her GED when she was 40 years old; she received training for a security guard position in 1988, but she had no other classes or special training. (R. 45.) The ALJ asked Oskey about her past job as an in-school suspension supervisor and read a job description Oskey provided to SSA. (R. 48-49.) The ALJ's description included: monitoring students who were suspended from regular classes but not sent home; collecting homework; collecting new assignments from teachers; getting lunches for the students; assisting students with their assignments; sitting between five and six hours; and standing and walking about two to three hours. (R. 48-49.) Oskey said this description was correct, and stated that this was a full-time position during the school year. (R. 49.) During the VE's testimony Oskey provided further clarification that she worked in this position for two school years, and that she could decide when she stood and walked around the "little room" while supervising students. (R. 91-92.)

(2) Vocational Expert Testimony

The VE was present during the course of the hearing, and she added two titles to Oskey's work history based on Oskey's testimony. (R. 75-77.) The VE described both titles; one of them was "Teacher Aide, " a skilled position requiring one to two years of experience, described as light work in the Dictionary of Occupational Titles (" D.O.T. "), and sedentary work as performed by Oskey.[1] (R. 77.) The VE testified that Oskey had worked in the position long enough to reach the requisite experience level. (R. 82.) The ALJ proceeded to pose four hypotheticals to the VE.

For the first hypothetical, the ALJ included the following limitations: the individual could occasionally lift and carry 20 pounds; frequently lift and carry 10 pounds; stand or walk for six hours out of an eight hour day; sit for six hours out of an eight hour day; occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; and could not engage in fast-paced work, restricting her to a pace limited to goal-oriented standards and not production-pace rate. (R. 82.) The VE testified that the individual could not perform any past relevant work, and the ALJ questioned the VE about how these restrictions affected each of Oskey's past positions. (R. 83-85.)

The VE stated that the pace restriction eliminated the Teacher Aide position, and the ALJ clarified that the pace restriction meant the individual could not work in a factory-type job but could complete a set number of items or maintain a set of standards over the course of a workday. (R. 85-86.) In light of the ALJ's clarification, the VE testified that Oskey's Teacher Aide position was more goal-oriented and could be performed because of the one-on-one interactions with students. (R. 86-87.) The VE specified that, as Oskey described her experience she could move at each student's pace; and the VE also testified that the hypothetical was in line with the exertion levels from the D.O.T. (light) and as-performed by Oskey (sedentary). (R. 87.)

For hypothetical two the ALJ added a limitation that the individual could not tolerate sudden or unpredictable workplace changes, and the VE testified that this did not impact the individual's ability to work as a Teacher Aide. (R. 88.) Hypothetical three limited the individual to lifting and carrying only 10 pounds occasionally and 5 pounds frequently; and standing or walking for only two hours in an eight hour work day. (R. 88.) The VE said that such individuals could not work as a Teacher Aide as described in the D.O.T., but they could work as a Teacher Aides as actually performed by Oskey. (R. 88.) For the fourth hypothetical, the ALJ added a limitation that the individual was unable to understand, remember, or carry out detailed instructions, and the VE stated that no past relevant work could be performed. (R. 89.)

The ALJ did not ask, and the VE did not testify about, the number of Teacher Aide positions ...

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