HOOD v. ASTRUE

Protection team focused on all aspects of information protection and conducted forensic investigations involving improper or unauthorized use of Defendant's computers by employees, along with enforcing policies for passwords and data encryption.

Id. at Ex. D, Affidavit of Williams, ¶ 4.

Id. at Ex. D, Affidavit of Williams, ¶¶ 5-6.

Id. at Ex. D, Affidavit of Williams, ¶ 5.

Id. at Ex. D, Affidavit of Williams, ¶¶ 6-7.

d. Application Technology Services

Application Technology Services, formerly known as the Technology Implementation group, had the primary responsibility of distributing applications and ensuring they functioned properly. These employees were generally required to have a four-year college degree, had a pay range of between $69,000 and $116,000 per year, and were all classified as exempt.

Id. at Ex. E, Affidavit of Wallace, ¶¶ 3-4.

Id. at Ex. E, Affidavit of Wallace, ¶ 6.

The group oversaw the implementation and maintenance of advanced applications on Defendant's servers. Its responsibilities were only to ensure that applications were correctly installed and operated within the other information technology infrastructures; the team was not responsible for issues arising within the applications themselves. The team also distributed applications; developed specifications for in-coming applications; implemented the applications to ensure they worked and functioned properly; handled the use of interface engines between applications; encrypted data on laptops; and handled backend database structures.

Id. at Ex. B, Affidavit of Thorpe, ¶ 13; Ex. E, Affidavit of Wallace, ¶ 4.

Id.

Id.

e. Information Management Applications

This group was responsible for software applications, such as patient care and billing, with specific analysts assigned to different applications. All employees were classified as exempt and were required to have a four-year degree. They were also all required to have at least five years of relevant experience and specialized skills, such as experience and knowledge with respect to host and client server architectures, logical and physical data architectures, and a history of development of projects in a medium-to-large data processing environment with mainframes, midrange, and client servers. Non-managerial employees were paid between $62,000 and $116,000 a year, while the pay for systems analysts ranged from $62,000 to $104,000 a year.

Id. at Ex. B, Affidavit of Thorpe, ¶ 15.

Id. at Ex. B, Affidavit of Thorpe, ¶ 24.

Id.

Id.

These analysts were required to have in-depth knowledge of databases, including their build and application configurations. They needed to know the function and purpose of each application, how it served that function, and the methods by which the application could be manipulated with programming to better serve its function and to resolve issues. They would address tickets only when the identified problems implicated the applications being utilized. This troubleshooting was secondary to the larger focus of development and maintenance of the applications. They also participated in strategic development planning.

Id. at Ex. B, Affidavit of Thorpe, ¶ 16.

Id.

Id. at Ex. B, Affidavit of Thorpe, ¶ 17.

Id. at Ex. B, Affidavit of Thorpe, ¶ 18.

Id.

Wroe worked as a systems analyst in this group. Her job description was as follows:

Id. at Ex. B, Affidavit of Thorpe, ¶ 19.

Under the direction of the Manager or Project Manager, working in a team environment on large projects or independently on small projects, the Systems Analyst performs software upgrades, maintenance, new software implementation projects with vendor provided software, or custom developed enhancements and interfaces. Coordinates and provides problem resolution, technical analysis, costs and resource estimates, work plans, workflow documentation, and progress reports on assigned projects. Assists assigned customer areas in identifying potential benefits, setting standards, developing procedures, and re-engineering business and clinical processes to achieve expected benefits of new andPGPage 14 existing systems. Provides production support and functional assistance.

Wroe's position thus required advanced knowledge of the processing behind the data and how to determine what was happening during the process. This required developing and using code, along with the ability to program how to generate reports for end users for the various applications that the hospital used. Wroe was also required to transfer data from the mainframe into applications; she claims that she was the only person in her department who had the knowledge and expertise to work in the mainframe.

Id. at Ex. B, Affidavit of Thorpe, ¶ 21.

Id. at Ex. B, Affidavit of Thorpe, ¶¶ 21-22.

Id. at Ex. B, Affidavit of Thorpe, ¶ 23.

II. Defendant's Objections to Plaintiff's Declarations

Defendant objects to portions of three declarations submitted by Plaintiff in support of his motion for conditional class action certification.

Defendant's Objections to Plaintiff's Evidence in Support of Plaintiff's Motion ("Defendant's Objections"), Docket Entry No. 23.

A. Plaintiff's Declaration

Defendant objects to Plaintiff's references to "computer technical support staff" as vague and lacking foundation because Plaintiff does not provide detailed information regarding the composition of such a group. The court disagrees.

Id. at pp. 2-4 (objecting to ¶¶ 3-4 12 of Plaintiff's declaration).

Here, Plaintiff sufficiently describes the composition of this group. First, Plaintiff states that this group is within IT Services. Second, he states that the group is composed of those employees whose purpose and function is to assist the users of computers and computer-related equipment in various departments of St. Luke's. Third, Plaintiff provides a description of what the relevant employees within each group of IT Services does. The court does not find these descriptions to be so vague that these portions of Plaintiff's declaration should be stricken.

Plaintiff's Motion, Docket Entry No. 9, Ex. A, Declaration of Plaintiff, ¶ 4.

Id. at Ex. A, Declaration of Plaintiff, ¶ 5.

Id. at Ex. A, Declaration of Plaintiff, ¶ 4 ("[E]mployees of the [TSC] are responsible for all desktop or laptop computers in all St. Luke's departments and facilities. The employees of [IT Infrastructure Computer Operations] are responsible for supporting the servers to which most desktops or laptops are connected. The employees of [Information Management Applications] help the accounting or business departments when their computer applications fail to perform as expected.").

Defendant also objects to Plaintiff's statements regarding the areas of responsibilities, purposes, and functions of various employees located in different departments within St. Luke's IT Services as lacking foundation because Plaintiff failed to specify in which positions those employees worked and failed to state how he came to have personal knowledge of the information. Defendant further objects to Plaintiff's statement that "St. Luke's required all non-managerial members of [IT Services] to respond to `tickets,' which are requests for help from other employees of St. Luke's," as lacking foundation because Plaintiff failed to state how he came to have personal knowledge of the requirements and expectations of this group.

Defendant's Objections, Docket Entry No. 23, pp. 4-5 (objecting to ¶¶ 4-5 of Plaintiff's declaration).

Id. at 5 (objecting to ¶ 6 of Plaintiff's declaration).

Plaintiff worked within IT Services and claims to have personal knowledge of the various positions within IT Services' groups. By virtue of his position, he has properly stated a basis upon which he may have gained personal knowledge of the organization by way of his day-to-day work and interaction with other employees of IT Services during his tenure with Defendant. Defendant's objections here are overruled.

Defendant also claims that Plaintiff cannot have personal knowledge of the work schedules of members of the computer technical support staff. Plaintiff supports his general statements by stating that he personally observed extra hours worked by some other members. Defendant's objection is overruled.

Further, although Defendant asserts that Plaintiff has stated that Defendant was in violation of the FLSA because these employees were owed compensation for their overtime hours, Plaintiff actually did not state such. Plaintiff only stated that these employees complained of not being compensated for their overtime hours (a factual assertion), not that the FLSA had been violated because they were actually owed compensation for overtime hours (a legal determination). Thus, Defendant's objection here is also overruled.

Finally, Defendant objects to Plaintiff's statement that "I know that the other computer technical support employees were salaried, because many of them said so. They also complained of the lack of `comp-time' or other compensation for their overtime hours," as inadmissible hearsay. To the extent that these statements are offered for the truth of the statements therein, Defendant's objection is sustained. However, whether true or not, these statements provide a basis for Plaintiff's belief that aggrieved individuals exist who may be owed overtime compensation. Accordingly, Defendant's objection is overruled to that extent.

Id. at 5-6 (objecting to ¶ 12 of Plaintiff's declaration).

Thus, the court overrules in part, sustains in part Defendant's objections to Plaintiff's declaration.

B. Tran's Declaration

Defendant objects to the descriptions of the two positions held by Tran during his ten years at St. Luke's as vague because Tran failed to state the time frames within that ten-year period for which he worked in each of the groups.

Id. at 6 (objecting to ¶¶ 2-7 of Tran's declaration).

At the hearing held on August 13, 2010, the period Tran worked for each of the groups was clarified. He worked in the TSC from some time in 2001 until mid-2008; then, from mid-2008 until March 15, 2010, he worked for IT Infrastructure Computer Operations. Because Plaintiff's lawsuit alleges violation of the FLSA from January 27, 2007, to the present, Tran clearly worked in each of the two groups during the relevant period. Thus, the information he provides in relation to each of his positions is relevant and is not so vague as to be inadmissible. Therefore, the court overrules Defendant's objection on this ground.

See Plaintiff's Motion, Docket Entry No. 9, Ex. B, Declaration of Tran, ¶ 2.

Defendant also objects to Tran's statements with respect to the other employees within his groups as vague and lacking foundation, because Tran did not work in each position within each group and, thus, Defendant avers, he cannot provide competent testimony with respect to other positions within the group.

Defendant's Objections, Docket Entry No. 23, pp. 6-7 (objecting to ¶ 6 of Tran's declaration).

Tran need not have worked in each position within each of his groups to competently testify as to whether his colleagues tended to work overtime. He has only testified with respect to what was generally expected of the members of his groups and as to his observations that the employees of these groups tended to work overtime. Tran's assertions are therefore sufficient to show that he had personal knowledge of the matters to which he testified concerning other employees within his groups. See Fed.R.Civ.P. 602. Therefore, the court overrules Defendant's objection on this ground.

Plaintiff's Motion, Docket Entry No. 9, Ex. B, Declaration of Tran, ¶ 6.

Thus, the court overrules all of Defendant's objections to Tran's declaration.

C. Wroe's Declaration

Defendant objects to Wroe's statement that:

I know that other computer technical support employees have worked substantial overtime, because I have personally seen them working late. For example, I know that one of my peers in the computer technical support department routinely worked twelve hours a day, and worked at least five days a week.

Defendant argues that the terms "computer technical support staff," "staff," and "department" are not defined by Wroe's affidavit or by reference to a defined group within the St. Luke's community and thus are vague and lack foundation.

Defendant's Objections, Docket Entry No. 23, p. 7. The court notes that the word "staff" does not appear in the paragraph that Defendant has objected to, and thus any objection to this word is overruled. See Plaintiff's Motion, Docket Entry No. 9, Ex. C, Declaration of Wroe, ¶ 11.

Wroe states that she worked for St. Luke's Information Management Applications group as a systems analyst, helping solve problems with the computer applications used in accounting, payroll, and similar bookkeeping functions. In the paragraph to which Defendant objects, Wroe refers to "one of [her] peers in the computer technical support department." As Wroe had previously described with particularity in which department she worked, reference to her peer clearly refers to a colleague within her own department. She is not required to name her peer for this portion of her declaration to be admissible. Further, for purposes of this motion, the court does not find that the words "computer technical support employees" are so vague as to be inadmissible. Finally, Plaintiff's statement that "other computer technical support employees have worked substantial overtime" is clearly not lacking foundation, as she alleges that she had personally seen them working late. Defendant's objection to this paragraph is overruled.

Plaintiff's Motion, Docket Entry No. 9, Ex. C, Declaration of Wroe, ¶¶ 2-3.

Id. at Ex. C, Declaration of Wroe, ¶ 11.

Accordingly, Defendant's objections to evidence submitted by Plaintiff in support of his motion for conditional class certification is OVERRULED IN PART, SUSTAINED IN PART.

III. Conditional Class Certification A. Legal Framework

1. Class Action Certification Under the FLSA

The FLSA requires covered employers to pay non-exempt employees for hours worked in excess of defined maximum hours. 29 U.S.C. § 207(a). It allows employees to bring an action against their employers for violation of its hour and wage provisions. See 29 U.S.C. §§ 215- 216. An employee may bring this action against his employer on "behalf of himself . . . and other employees similarly situated. No employee shall be a party plaintiff to any such an action unless he gives his consent in writing to become a party and such consent is filed in the court in which such action is brought." 29 U.S.C. § 216(b). Courts have the authority to implement the representative action process by facilitating notice to potential plaintiffs, i.e., to persons alleged to be "similarly situated" to the named plaintiff(s). Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989).

In the Fifth Circuit, the determination of whether plaintiffs are "similarly situated" is generally made by using one of two analyses: (1) the two-step analysis described in Lusardi v. Xerox Corporation, 118 F.R.D. 351, 359 (D.N.J. 1987), or (2) the "spurious class action" analysis described in Shushan v. University of Colorado, 132 F.R.D. 263 (D. Colo. 1990). See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5^th Cir. 1995) (expressly declining to decide which of the two analyses is appropriate).

Mooney v. Aramco Services Co. was an action under the Age Discrimination in Employment Act ("ADEA"), but it applies here because the ADEA explicitly incorporates Section 216(b) of the FLSA to there also provide for an "opt-in" class action procedure for similarly-situated employees. See Mooney, 54 F.3d at 1212.

Under the Lusardi approach, the court first "determines whether the putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class." Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 519 (5^th Cir. 2010) (citing Mooney, 54 F.3d at 1213-14). The court makes this determination by using a fairly lenient standard, requiring only "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Mooney, 54 F.3d at 1214 n. 8. If the court determines that the employees are similarly situated, then notice is sent and new plaintiffs may "opt in" to the lawsuit. Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d at 1214). Next, once discovery has largely been completed, and, thus, more information on the case made available, the court makes a final determination on whether the plaintiffs are similarly situated and whether they can proceed together in a single action. Id.

According to the Fifth Circuit, the Shushan approach, known as the "spurious class action" analysis, is similar to the class certification procedure used under Federal Rule of Civil Procedure 23 ("Rule 23"):

Shushan espouses the view that [ 29 U.S.C. § 216(b) ("Section 216(b)")] merely breathes new life into the socalled "spurious" class action procedure previously eliminated from [Rule 23]. Building on this foundation, the court determined that Congress did not intend to create a completely separate class action structure for the FLSA . . . context, but merely desired to limit the availability of Rule 23 class action relief under . . . [the FLSA]. In application, the court determined that Congress intended the "similarly situated" inquiry to be coextensive with Rule 23 class certification. In other words, the court looks at "numerosity," "commonality," "typicality" and "adequacy of representation" to determine whether a class should be certified. UnderPGPage 23 this methodology, the primary distinction between a . . . [FLSA] representative action and a [Rule 23] class action is that persons who do not elect to opt-in to the . . . [FLSA] representative action are not bound by its results. In contrast, Rule 23 class members become party to the litigation through no action of their own, and are bound by its results.

Mooney, 54 F.3d at 1214.

The Fifth Circuit has not ruled which method the courts should use to determine whether plaintiffs are sufficiently "similarly situated" to advance their claims together in a single action under Section 216(b). Acevedo, 600 F.3d at 518-19. Although it has stated that not all class action standards are applicable to Section 216(b) actions, it has explicitly left open the question of whether the Lusardi approach, the Shushan approach, or some third approach should be used in determining whether employees' claims are sufficiently similar to support the maintenance of a representative action. Id. (citing Mooney, 54 F.3d at 1216;LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5^th Cir. 1975)).

However, most courts in this District follow the Lusardi approach in suits under Section 216(b). See, e.g., Tolentino v. C J Spec-Rent Servs., Inc., No. C-09-326, 2010 WL 2196261, at *3 (S.D. Tex. May 26, 2010) (collecting cases). The Lusardi approach is consistent with Fifth Circuit dicta, stating that the two-step approach is the typical manner in which these collective actions proceed. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n. 2 (5^th Cir. 2008). The Fifth Circuit has also stated that "[t]here is a fundamental, irreconcilable difference between the class action described by [Rule 23] and that provided for by [Section 216(b)]," i.e., the "opt out" procedure for class members under Rule 23 as opposed to the "opt in" procedure under Section 216(b). LaChapelle, 513 F.2d at 288; see also Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5^th Cir. 1981) ("The FLSA procedure, in effect, constitutes a congressionally developed alternative to the [Rule 23] procedures."). This court, therefore, will analyze Plaintiff's claims using the Lusardi method.

2. Lusardi

The present case is at the "notice stage" of the Lusardi analysis. At this stage, the court's decision is "made using a fairly lenient standard;" a plaintiff need only make a minimum showing to guide the court's determination in whether to issue notice to potential class members. Mooney, F.3d at 1214.

In lieu of Fifth Circuit guidance on the appropriate test to use at the notice stage of the Lusardi analysis, courts are split on the appropriate elements to consider in determining whether to grant conditional certification. Some courts use three elements, requiring the plaintiff to show that: (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit. See, e.g., Cantu v. Vitol, Inc., No. H-09-0576, 2009 WL 5195918, at *4 (S.D. Tex. Dec. 21, 2009) (unpublished); Tolentino, 2010 WL 2196261, at *8-9. Other courts, however, have rejected the third, non-statutory element. See, e.g.,Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, at *3 (S.D. Tex. Dec. 11, 2008) (unpublished); Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 780 (N.D. Ill. 2007).

The court agrees that a plaintiff need not present evidence at this stage of the third element, that aggrieved individuals actually want to opt in to the lawsuit. There are several reasons for this. First, as already stated, this element is not a statutory requirement at this stage. See 29 U.S.C. § 216(b). Second, this element has not been required, or even discussed, by any higher court opinion that this court has been able to find or to which the parties have cited. Rather, the Fifth Circuit's discussion of the Lusardi approach only requires, at the first stage, that "putative class members' claims are sufficiently similar to merit sending notice of the action to possible members of the class." See Acevedo, 600 F.3d at 519 (citing Mooney, 54 F.3d at 1213-14). Third, unlike under Rule 23, there is no numerosity requirement in a FLSA class action lawsuit under theLusardi approach. See, e.g., Badgett v. Tex. Taco Cabana, L.P., No. Civ.A.H 05-3624, 2006 WL 367872, at *2 (S.D. Tex. Feb. 14, 2006) (Lake, J.) (unpublished) (citing Mooney, 54 F.3d at 1214 n. 8) (stating that "at the notice stage [in a FLSA action using the Lusardi approach], courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan" (internal quotations omitted)). Fourth, this element, requiring evidence of purported class members who are willing to join a class action before an appropriate class is even determined, is dissonant with the Supreme Court's directive that the FLSA be liberally construed to effect its purposes. See Tony Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296 (1985). Liberally construing the FLSA to effect its purposes, the court finds that it is enough for the plaintiff to present evidence that there may be other aggrieved individuals to whom a class action notice should be sent, without requiring evidence that those individuals actually intend to join the lawsuit.

Therefore, based on these considerations, the court finds that it need not determine whether Plaintiff has alleged sufficient information that aggrieved individuals are actually willing to opt in to this lawsuit. The court will now proceed to look at the first two elements of the test.

B. Analysis

For the purposes of determining the outcome of this motion only, the court assumes that Plaintiff has stated a cognizable claim under Section 207 of the FLSA.

1. Existence of Aggrieved Individuals

The court first notes that Defendant's argument here relies, in large part, upon its assertion that Plaintiff has not provided evidence that similarly-situated, aggrieved individuals exist. That argument, however, impermissibly combines the first and second elements of the test. See Cantu, 2009 WL 5195918, at *4. The test for the first element is actually much more lenient than that; Plaintiff need only show that it is reasonable to believe that there are other aggrieved employees who were subject to an allegedly unlawful policy or plan. See Morales v. Thang Hung Corp., No. 4:08-2795, 2009 WL 2524601, at *3 (S.D. Tex. Aug. 14, 2009) (Miller, J.) (unpublished); Prater v. Commerce Equities Mgmt. Co., Inc., No. H-07-2349, 2007 WL 4146714, at *5 (S.D. Tex. Nov. 19, 2007) (Rosenthal, J.) (unpublished). In short, the court does not conduct a similarly-situated analysis until it examines the second element of the test. See Cantu, 2009 WL 5195918, at *4.

See Defendant's Response, Docket Entry No. 24, pp. 18-22. The court also notes that Defendant's argument relies in large part upon its attack of the statements made in the declarations of Plaintiff, Tran, and Wroe. Id. The court has already dealt with those arguments and will not address them again here. See supra § II.

Plaintiff presents the court with three declarations in support of his assertion that there were other non-exempt, aggrieved individuals who worked more than forty hours in a week but were not paid overtime. Plaintiff's own declaration states:

I know that other computer technical support employees have worked substantial overtime, because I have personally seen them working late. For big projects such as large scale replacements of hardware or software updates to applications or operating systems, many of the computer technical support employees would come in to work over the weekends, together. I know that other employees worked on-call, because sometimes they asked to trade on call time slots. For example, I know that Julie Rector, Mario Zamora, Glenn Hickerson, Jim Christiansen, Marcus Tran, Solomon Medhin, and Rurik Wilmot worked more than forty hours in some weeks, because they worked after their regular schedule or on weekends. I know that the other computer technical support employees were salaried, because many of them said so. They also complained of the lack of "comp-time" or other compensation for their overtime hours.

Similarly, Tran's declaration states:

. . . St. Luke's company policy required members of the [TSC] and [IT Infrastructure Computer Operations] to serve "oncall" at regular intervals. [TSC] employees served on call about one week a month, and during that week were expected to respond to calls even very late at night or on weekends, whenever the user had a need. Employees of [IT Infrastructure Computer Operations] served oncall about once every six weeks. As a result, employees of the [TSC] and [IT Infrastructure Computer Operations] tended to work more than forty hours in a week spent oncall, because we worked our regular daily shift, but still had to return in the evenings as needed. I routinely worked more than forty (40) hours per week during my on call periods. Sometimes when I was oncall, I was required to return to the office late at night or early in the morning to address emergency problems with a computer or server. However, prior to December 2008, I was classified as a salaried employee by St. Luke's and did not get paid for the hours I worked in excess of forty (40) per week at one and a half (1.5) times my regular rate.

Wroe further states in her declaration that she regularly worked more than forty hours in a week but that she did not get paid for those extra hours. She also claims to have personally seen other employees in IT Services often working overtime, and she points to one colleague in particular whom she avers routinely worked twelve-hour days, five days a week.

Id. at Ex. C, Declaration of Wroe, ¶¶ 6, 10-11.

Id.

Together, these declarations allege that Tran, Wroe, and other named and unnamed employees of IT Services were allegedly treated in the same manner. Each declaration provides allegations that Defendant failed to properly pay overtime wages. They show that Defendant allegedly implemented the same policy with respect to different employees. See, e.g., Ali v. Sugarland Petroleum, No. 4:09-cv-0170, 2009 WL 5173508, at *5 (S.D. Tex. Dec. 22, 2009) (Ellison, J.) (unpublished). In light of these statements, the court finds that Plaintiff has shown that it is reasonable to believe that there are other aggrieved employees.

2. Similarly Situated

Defendant contends that Plaintiff, along with Tran and Wroe, have failed to demonstrate that they are similarly situated to each other or to members of the proposed class.

See Defendant's Response, Docket Entry No. 24, pp. 22-27.

Potential class members are considered similarly situated to the named plaintiff if they are:

"similarly situated" with respect to their job requirements and with regard to their pay provisions.

The positions need not be identical, but similar. A court may deny a plaintiff's right to proceed collectively only if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice.

Yaklin v. W-H Energy Servs., Inc., No. C-07-422, 2008 WL 1989795, at *2 (S.D. Tex. May 2, 2008) (Jack, J.) (unpublished) (internal quotations and citations omitted). If the job duties among putative class members vary significantly, then class certification should be denied. See, e.g., Dreyer, 2008 WL 5204149, at *3; Aguirre v. SBC Commc'ns, Inc., No. H-05-3198, 2007 WL 772756, at *9 (S.D. Tex. Mar. 12, 2007) (Rosenthal, J.) (unpublished).

Here, the court has already described the various groups and teams within IT Services, including the groups for which Plaintiff, Tran, and Wroe each worked. Plaintiff worked as a DSA in the TSC group, which was composed of two teams: Help Desk and Desktop Support. The evidence shows that the Help Desk team provided the first level of support for end users; Desktop Support provided the second level of support, solving issues that Help Desk employees were unable to resolve. Although Desktop Support employees handled more complex problems than did Help Desk employees, the court finds that these two teams within the TSC group had sufficiently similar job responsibilities to warrant collective action. It is not apparent that any differences between these two teams are relevant or make the jobs so dissimilar as to deny collective action. See, e.g., Tolentino, 2010 WL 2196261, at *7; Johnson v. Big Lots Stores, Inc., Nos. 04-3201, 05-6627, 2007 WL 5200224, at *9 (E.D. La. Aug. 21, 2007) (unpublished) ("To pursue claims against an employer, plaintiffs must be similarly situated. They do not have to be identically situated." (emphasis omitted)).

See supra § I.B.2.

Prior to December 2008, Help Desk employees were apparently already classified as non-exempt. Defendant's Response, Docket Entry No. 24, p. 7 n. 3; Ex. A, Affidavit of Robicheaux, ¶ 22. However, the record is not entirely clear as to whether all of these employees were properly paid for overtime in accordance with the FLSA. As the court notes infra, only if they were not properly paid according to the time-and-a-half provisions of the FLSA may they join this lawsuit.

The employees of the TSC were "Jacks-of-all-trades." The four other groups within IT Services were different, however. While employees in each of these groups might work on issues that the TSC team could not resolve, end-user issue resolution was not a primary focus for any of these groups. Rather, each of the four groups had its own area of expertise. IT Infrastructure Computer Operations specialized in the servers. Telecommunications Security Services specialized in security and privacy. Application Technology Services specialized in advanced applications. Information Management Applications specialized in application functionality. These groups were not primarily responsible for diagnosing and addressing "break/fix" issues, as was the TSC.

Plaintiff states that all of the employees working in IT Services had "a common purpose and function, which is to help the users of computers and computer related equipment, at various departments of St. Luke's, to get the most performance from their computers and to overcome problems or obstacles." However true this may be, the generic quality of the statement creates a far broader categorization than that permitted under the "similarlysituated" analysis. While slight differences in job duties or functions do not run afoul of the similarly-situated requirement, significant variation of job duties among potential class members means that class certification should not be granted. See, e.g., Dreyer, 2008 WL 5204149, at *2. Generally speaking, TSC employees dealt with fixing the computer issues that arose on a daily basis at St. Luke's; the other four groups specialized in the implementation of and maintenance of specific software or hardware issues. They only occasionally dealt with complex "break/fix" issues that arose with respect to their areas of expertise. This specialization prevents the court from finding that employees in those groups are similarly situated to those employees who worked in the TSC.

Plaintiff's Motion, Docket Entry No. 9, p. 3.

Therefore, the court finds that only those employees working within the TSC are similarly situated. Accordingly, the court GRANTS IN PART, DENIES IN PART Plaintiff's motion to conditionally certify class.

The following class is conditionally certified for purposes of this FLSA collective action:

All current and former employees of St. Luke's Episcopal Hospital who held non-managerial positions in the Technology Service Center in the Information Technology Services department (formerly known as the Information Management Division) at any time between January 26, 2007, and December 31, 2008, and who were not paid for hours worked in excess of forty (40) in any given work week at one-and-a-half (1.5) times their regular rate.

See Baldridge v. SBC Commc'ns, Inc., 404 F.3d 930, 931-32 (5^th Cir. 2005) (stating that the court has the power to limit the scope of a proposed class in a FLSA collective action).

If Tran, Wroe, or any member of the IT Services department, other than those in the TSC, wish to proceed on a claim for overtime compensation under the FLSA, they must file a separate lawsuit.

The court notes that Tran allegedly worked for the TSC during part of the relevant period. Accordingly, he may join this lawsuit only with respect to the time spent in his position in that group, and not with respect to his job in the IT Infrastructure Computer Operations group.

C. Notice

Having examined Plaintiff's and Defendant's proposed notices, the court finds that Defendant's notice should issue to proposed class members, with the exception that the limitations date should begin on January 26, 2007, not January 26, 2008, as the notice currently states.

Defendant's Response, Docket Entry No. 24, Ex. F, Notice of Pendency of FLSA Lawsuits; Ex. G, Consent to Join.

Within fourteen (14) days of this opinion, Defendant shall provide Plaintiff with a list of all employees fitting the description of the conditionally certified class. This list shall include each individual's full name, last known mailing address, any alternate addresses, date of birth, and date(s) of employment. Plaintiff shall have fourteen (14) days from the receipt of this information to mail the notice to the potential class members.

Defendant need not post the notice and consent forms in a place where potential class members are likely to view them, as Plaintiff requests. Notice by mail is sufficient under the circumstances of this case.

IV. Conclusion

Accordingly, the court GRANTS IN PART, DENIES IN PART Plaintiff's Motion for Conditional Certification of a Collective Action (Docket Entry No. 9). Furthermore, the court OVERRULES IN PART, SUSTAINS IN PART Defendant's Objections to Plaintiff's Evidence in Support of Plaintiff's Motion for Conditional Certification of a Collective Action (Docket Entry No. 23).

led a borderline deficit in mathematics. Other skills were developed consistently with intellectual functioning, but she failed to achieve literacy levels in reading, and barely achieved that level in writing . . . Observations and patterns suggest the following disorders: Learning Disorder, NOS; Expressive Language Disorder; Phonological Disorder . . . The disorders are thought to be at least moderate in severity, and will hamper her considerably in formal training and work settings.

(Tr. at 146).

During the period of October 21, 2003 through January 4, 2005, Ebenezer Medical Outreach listed Claimant's medical issues as anxiety/depression, hypertension, chronic low back pain, a hiatal hernia, a gastric ulcer, diverticulitis, and a family history of breast cancer through her mother. (Tr. at 210, 200). At various points throughout this period, Claimant was prescribed Atacand, Effexor, Vioxx, Norflex, Ultram, Claritin, Celebrex, and Nexium. Id.

These medications are generally prescribed for the following purposes: Atacand for hypertension; Effexor for anxiety/depression; Vioxx and Celebrex for arthritis; Norflex and Ultram for muscle pain and stiffness; Claritin for allergies; and Nexium for gastrointestinal issues.

On March 18, 2003 through August 23, 2004, Claimant received physical therapy from Westmoreland Physical Therapy. (Tr. at 162-172). Her final evaluation stated that Claimant received five treatments and failed to appear for subsequent sessions. (Tr. at 64). The only abnormal finding concerned Claimant's range of motion of her back. (Tr. at 163).

On August 20, 2004, Brian Bailey, M.A., conducted a consultative examination. (Tr. at 156-161). Claimant was referred to Mr. Bailey from the Department of Disability Services (hereinafter "DDS") for an evaluation to assist in the determination of her eligibility for Social Security benefits. (Tr. at 156). The information used in the examination was provided solely by Claimant and she was deemed a reliable informant. Id. Mr. Bailey diagnosed Claimant with Major Depressive Disorder, Single Episode, Moderate; Phonological Disorder; and Maladaptive Health Behaviors, such as lack of exercise affecting obesity and hypertension. (Tr. at 160).

On August 17, 2004, Rodolfo Gobunsuy, M.D., conducted a consultative examination. (Tr. at 149-155). Claimant was told to have bulging discs and arthritis based on a CAT scan and x-ray of her lumbar spine. (Tr. at 151). She also had arthritic changes in her knees; radicular symptoms down her left leg consistent with lumbar disc disease; limited anterior bending of the lumbar spine due to her obese abdomen, but straight leg raising was satisfactory; symptoms of carpel tunnel syndrome; no Tinel sign, but positive Phalen sign; and no problems using her hands. Id.

On October 6, 2004, DDS physician, Joseph Kuzniar, Ed.D., completed a Psychiatric Review Technique Form, assessing Claimant's mental condition dating back to June 7, 2004. (Tr. at 181-194). Dr. Kuzniar found that Claimant suffered from two mental disorders: (1) an organic mental impairment as evidenced by a phonological disorder and (2) an affective disorder characterized by disturbance of mood, accompanied by depressive syndrome, as evidenced by anhedonia (pervasive loss of interest in almost all activities), sleep disturbance, decreased energy, and difficulty concentrating or thinking. (Tr. at 181-184). He found that Claimant did not suffer from any other mental disorders. (Tr. at 182-190). On a scale of "none," "mild," "moderate," "marked," and "extreme," Dr. Kuzniar rated Claimant mildly restricted in activities of daily living and maintaining social functioning; moderately limited in maintaining concentration, persistence, or pace; and that there were no episodes of decompensation of extended duration. (Tr. at 191).

On the same date, Dr. Kuzniar completed a RFC Assessment Form. (Tr. at 195-198). On a scale of "not significantly limited," "moderately limited," "markedly limited," and "no evidence of a limitation," he found the following:

Claimant was "not significantly limited" in her ability to remember locations and work-like procedures; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; work in coordination with or proximity of others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; respond appropriately to changes in the work setting; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independently of others.

Claimant was "moderately limited" in her ability to understand, remember, and carry out detailed instructions and maintain attention and concentration for extended periods.

There was "no evidence" that Claimant was limited in her ability to understand, remember, and carry out very short and simple instructions; sustain an ordinary routine without special supervision; make simple work-related decisions; ask simple questions or request assistance; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and be aware of normal hazards to take appropriate precautions.

(Tr. at 195-196).

On September 7, 2004, DDS physician, Atiya Lateef, M.D., completed a Physical RFC Assessment Form, assessing Claimant's "current" condition. (Tr. at 173-180). Dr. Lateef listed Claimant primary diagnosis as "DJD L/S Spine," which the Court interprets as Degenerative Joint Disease of the lumbrosacral spine; her secondary diagnosis as "DJD" of the knees and morbid obesity; and her other alleged impairments as hypertension, depression, gastrointestinal reflux disease, and temporomandibular joint syndrome. (Tr. at 173). In rating Claimant's exertional limitations Dr. Lateef found that Claimant could do the following:

Occasionally lift 20 pounds

Frequently lift 10 pounds

Stand and/or walk with normal breaks for at least 2 hours in an 8-hour workday

Sit with normal breaks for about 6 hours in an 8-hour workday

Push and/or pull an unlimited amount, other than as shown for lift and/or carry

(Tr. at 174). In the section where Dr. Lateef was asked to explain how and why the evidence supported her conclusions and the specific facts upon which her conclusions were based, she stated:

Walks steadily without limp or antalgia.

Extremities revealed fine varicose veins [with] + 1 edema.

Distal pulses are intact.

Neuro-no muscle weakness or atrophy.

Cranial nerves II-XII-grossly intact.

Lumbar spine is tender [at] the lower lumbar to the upper sacral.

The knees have crepitations, more on the [left] side, and the [left] knee is tender medially and laterally.

She has radicular symptoms, down to her [left] leg consistent with lumbar disc disease.

Anterior bending of the lumbar spine is limited as her abdomen is obese but SLR is satisfactory.

X-ray [left] knee-moderate degenerative arthritis of the knee joint.

Lumbar-narrowing L5-S1, L4-L5, L2-L3.

(Tr. at 174-175). In evaluating Claimant's postural limitations, Dr. Lateef found that Claimant could "occasionally" climb, balance, stoop, kneel, crouch, and crawl. (Tr. at 175). Claimant had no manipulative, visual, communicative, or environmental limitations. (Tr. at 176-177). There were no treating or examining source statements in the file from which Dr. Lateef based her conclusions. (Tr. at 179).

On January 11, 2005, Licensed Psychologist Kelly Daniel, M.A., evaluated Claimant's intellectual functioning, finding the following, as summarized by the Court:

Claimant was cooperative, able to maintain attention, tearful regarding some of her history the recent loss of her Husband. She reported that she was "held back" in the second grade and was in special reading and math classes at times, but that she graduated from high school.

Claimant's verbal IQ score was 77, which fell in the borderline mentally retarded range; her performance IQ was 84, which was in the low average range; and her full scale IQ was 78, which was in the borderline intellectual functioning range. The results were believed to be accurate.

It appeared that Claimant was able to comprehend information at a low average level, but could not retain the information and manipulate it as necessary to perform arithmetic well. In addition, she would have trouble retaining and repeating information if required to incorporate it with other information, which is a skill at the mildly mentally retarded range.

(Tr. at 267-268).

On January 13, 2005, Kelly M. Dick, M.A., a supervised psychologist at University Psychiatric Associates conducted an initial intake interview, noting the following:

Claimant spoke in a normal manner without stammering or stuttering; her speech was a normal rate, tone, and pace; she was oriented to person, place, time, and situation; her speech and manner were not bizarre; receptive and expressive language seemed unimpaired.

Claimant's thoughts and associations were logical and coherent; she was able to sustain reasonable attention; however, she described her attention and concentration as poor.

Ms. Dick's diagnostic impression was "Major Depressive Disorder, Recurrent, Moderate" and she needed to rule out anxiety disorder.

(Tr. at 262-266). On February 18, 2005, University Psychiatric Associates reported a "marginal improvement" in Claimant's depression. (Tr. at 256).

On January 18, 2005, Dr. Triplett found that Claimant's pain in her left arm, shoulder, and elbow were due to mild degenerative joint disease, but that she suffered from that condition in those areas only. (Tr. at 316). Dr. Triplett noted that Claimant had hypertension and that he needed to rule out diabetes. (Tr. at 317).

On April 6, 2005, a DDS physician completed a Psychiatric Review Technique Form concerning Claimant; his findings are summarized by the court below:

Claimant had non-severe mental impairments of borderline intellectual functioning; affective disorder, characterized by appetite disturbance with change in weight, sleep disturbance, and decreased energy; moderate major depressive disorder; and anxiety.

Claimant did not have an impairment in the category of mental retardation which is defined as "[s]ignificantly subaverage general intellectual functioning with deficits in adaptive functioning."

On a scale of none, mild, moderate, marked, and extreme, Claimant's mental impairments rendered her mildly restricted in activities of daily living; maintaining social functioning; and maintaining concentration, persistence, or pace. There were no episodes of decompensation of extended duration.

(Tr. at 269-282).

On April 11, 2005, Fulvio Franyutti, M.D., completed a Physical RFC Assessment Form, listing the following:

Claimant could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk and sit with normal breaks for approximately six hours in an eight-hour work day; and push and/or pull, including hand and/or foot controls, an unlimited amount.

Claimant could occasionally climb ramps/stairs, balance, and stoop and could never climb ladders/robes/scaffolds, kneel, crouch, or crawl.

Claimant had no manipulative, visual, or communicative limitations.

Claimant had no limitations with regard to wetness, humidity, or noise, but should avoid concentrated (as opposed to moderate or all exposure) to extreme cold, extreme heat, vibration, fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery, heights, etc.

(Tr. at 284-287). Dr. Franyutti also noted that in his judgment, Claimant's symptoms were attributable to medically determinable impairments. (Tr. at 288). He found Claimant to be credible and that her allegations were supported by the medical findings. Id. He adjudged her capable of performing "light" work. Id. There were no statements from a treating doctor in the file from which Dr. Franyutti formed his opinion. (Tr. at 289).

On April 15, 2005, Dr. Triplett noted that Claimant's hypertension and diabetes were controlled. (Tr. at 298). He stated that he was "very pleased" with her blood sugar level and that her "blood pressures have been great also." Id.

On August 20, 2005, Cynthia L. Clay, WV Licensed Psychologist, evaluated Claimant. (Tr. at 292). Ms. Clay noted that Claimant was cooperative, that her attention and concentration were intact, that her persistence was "generally good," and that the results of the tests were considered to be valid. Id. Ms. Clay found that Claimant was able to read at a fourth grade level and spell and perform arithmetic at a third grade level. Id.

On November 19, 2005, Tri-State MRI reported that Claimant had "degenerative disc disease with spinal canal, lateral recess and neural foraminal stenosis;" that her "right L4-5 neural foramen [was] very narrowed from either disc protrusion or extrusion superimposed on bulging;" and that her "spinal canal stenosis [was] most noted from L2 to L4." (Tr. at 294).

On April 14, 2006, Claimant reported to Tri-State Rehab Services of Westmoreland. (Tr. at 386-387). She was assessed as having "good rehab potential" and scheduled for physical therapy two-to-three times per week for a four-to-six week period. Id.

On May 13, 2006, Ms. Clay, submitted her opinion of Claimant's condition. (Tr. at 336-342). Ms. Clay worked with Claimant since June 2005. (Tr. at 336). Ms. Clay's diagnosis of Claimant was "Major Depressive Disorder, Recurrent, Mild" and "Breathing Related Sleep Disorder." Id. On a functional imitation scale of "none, slight, moderate, marked, or extreme," Ms. Clay assessed that Claimant had a "slight" restrictive of activities of daily living; a "moderate" difficulty in maintaining social functioning; and often experienced deficiencies of concentration, persistence, or pace. (Tr. at 341). b. Evidence Received Post Hearing

Claimant asserts that this evidence was obtained "after the hearing, on May 5, 2006." (Pl.'s Br. at 10). A date stamp on the document indicates that it was received by the SSA on May 19, 2006. Claimant assertion that the evidence was obtained "after the hearing" is illogical as the hearing took place on June 8, 2006. Therefore, the Court assumes that this evidence was received prior to the hearing.

On September 30, 2006, Richard Cohen, M.D., provided his medical opinion, based upon a review of Claimant's medical evidence. (Tr. at 357-362). His findings, as summarized by the court, include the following:

Claimant's mental impairments from July 2002, when she last worked, to the present, were major depression with sleeping problems, decreased energy, decreased concentration, suicide ideation at times, decreased self esteem, borderline intellectual functioning, and anxiety disorder.

Claimant's activities of daily living and social functioning were mildly impaired; her concentration, persistence, and pace was moderately impaired; and she had no episodes of deterioration or decomposition for extended periods of time.

Claimant's impairments, considered in combination, did not equal any impairments listed in Appendix 1, Subpart P, Social Security Regulations No. 4.

Claimant had a "good" ability to follow work rules; relate to co-workers; deal with the public; interact with supervisor(s); function independently; understand, remember, and carry out simple job instructions; and maintain personal appearance.

Claimant had a "fair" ability to use judgment; deal with work stresses; maintain attention/concentration; understand, remember, and carry out complex job instructions; understand, remember, and carry out detailed, but not complex job instructions; behave in an emotionally stable manner; relate predictably in social situations; and demonstrate reliability.

Claimant could, at a minimum, perform simple, repetitive tasks in a low-stress environment.

Id.

On January 30, 2007, Claimant was evaluated by Travis Hansbarger, M.D. (Tr. at 390-393). Dr. Hansberger diagnosed Claimant with chronic "LBP" with "DDD" and "CTS," which the court interprets as lower back pain with degenerative disc disease and carpel tunnel syndrome. (Tr. at 390). Dr. Hansbarger made the following observations:

In an eight-hour work day, Claimant could sit for approximately four hours with hourly breaks of walking for fifteen minutes and she could stand/walk less than two hours at a time.

Claimant must be able to shift positions at will from sitting, standing, or walking and must occasionally take unscheduled breaks during an eight-hour work day. Claimant did not require a cane or other assistive device to walk and can occasionally lift less than ten pounds, but never more than ten pounds.

Depression and anxiety contributed to the severity of Claimant's symptoms and functional limitations.

Claimant's physical and emotional impairments were reasonably consistent with the symptoms and functional limitations listed in the report.

Claimant frequently experienced pain or other symptoms severe enough to interfere with attention and concentration needed to perform simple work tasks and was incapable of even low stress jobs due to her psychological conditions.

Claimant could not walk a city block without rest or severe pain and could stand for five minutes before needing to sit down or walk around.

Claimant could not bend over, squat, or climb ladders and could rarely twist or climb stairs.

Claimant had significant limitations with reaching, handling, or fingering and as a result, during a work day, she could not use her hands to grasp, turn, or twist objects; could not use her fingers for fine manipulation; and could use her arms to reach overhead only five percent of the time.

(Tr. at 391-393). Dr. Hansbarger's final notation was that "[w]orking in the public sector would be difficult for [Claimant]." (Tr. at 393).

III. Claimant's Challenges to the Commissioner's Decision

Claimant asserts that the ALJ erred by (1) failing to submit the interrogatories obtained from Dr. Cohen after the hearing to the Claimant and offering the Claimant the opportunity to either question Dr. Cohen by her own interrogatories or at hearing, (2) failing to address the opinion of the Claimant's treating psychologist, and (3) relying upon a vocational expert's testimony without allowing the vocational expert to see all of the evidence. (Pl.'s Br. at 7-11).

To the contrary, the Commissioner argues that (1) the ALJ properly entered the post-hearing evidence into the record in accordance with the Regulations, (2) substantial evidence supports the ALJ's decision that Claimant was not disabled, (3) substantial evidence supports the ALJ's finding that Claimant could perform the unskilled jobs identified by the vocational expert. (Def.'s Br. at 9-15).

V. Discussion

a. Dr. Cohen's Post-Hearing Report

Subsequent to Claimant's administrative hearing, Dr. Richard Cohen provided his opinion of Claimant's condition. (Tr. at 357-362). Claimant's first assertion of error argues that "the ALJ should have obtained an explicit waiver [of Claimant's right to request a supplemental hearing, cross examine Dr. Cohen, or submit controverting evidence] on the record either by signed statement or as an exhibit before entering Dr. Cohen's opinion on the record and relying upon it in making his decision." (Pl.'s Br. at 8).

Claimant specifically points to portions of I-2-7-15 and I-2-7-35 of the Social Security Administration Office of Disability Adjudication and Review Hearings, Appeals, and Litigation Law Manual ("HALLEX"):

If the ALJ decides at or after the hearing that additional evidence is needed for a full and fair inquiry into the matters at issue, the ALJ will direct the HO staff to undertake the necessary development and inform the claimant of the evidence that is being developed. The ALJ will also inform the claimant that he or she will be given an opportunity to examine and comment on, object to, or refute the evidence by submitting other evidence, requesting a supplemental hearing, or if required for a full and true disclosure of the facts, cross-examining the author(s) of the evidence.

A claimant may waive the right to examine additional evidence. However, the ALJ must neither encourage nor discourage waiver. If a claimant decides to waive such right, the waiver must be made either on the record at the hearing or in writing.

If a claimant has waived the right to examine additional evidence, the ALJ may enter it into the record without proffering it. However, if the ALJ believes the claimant should examine it, the ALJ should proffer it notwithstanding the waiver. (citations omitted)

HALLEX I-2-7-15.

If an ALJ enters posthearing evidence into the record without proffer, the ALJ must ensure that the claimant waived the right to examine the evidence and to appear at a supplemental hearing. The waiver may have been made on-the-record at the hearing or by a signed written statement.

HALLEX I-2-7-35.

Claimant either misunderstands the facts of this case or the HALLEX provisions which she cites. The ALJ in this case did not enter the evidence from Dr. Cohen without proffer. Thus, the ALJ was not required to obtain a waiver on the record or by a signed written statement. Rather, the ALJ sent a proffer letter on January 22, 2007 to Marie Redd, Claimant's non-attorney advocate, apprising her of the new evidence. (Tr. at 135-136). The letter comports with the requirements of HALLEX I-2-7-30:

Claimant was represented at the administrative level by Marie Redd; attorney, William Redd; and the Redd Law Firm, all of which share the same business address. The proffer letter was sent to that location.

The proffer letter must:

• Give the claimant a time limit to object to, comment on or refute the evidence, submit a written statement as to the facts and law that the claimant believes apply to the case in light of the evidence submitted, submit written questions to be sent to the author(s) of the proferred evidence or exercise his or her rights with respect to requesting a supplemental hearing and the opportunity to cross-examine the author(s) of any posthearing report(s) if it is determined by the ALJ that such questioning is needed to inquire fully into the issues.

• Advise the claimant that he/she may request a subpoena to require the attendance of witnesses or the submission of records and the procedures for the requesting and issuance of a subpoena.

Therefore, Claimant argument that the ALJ did not comply with the procedures outlines in HALLEX is without merit.

Dr. Cohen's report (Tr. at 357-362) does not appear directly after the proffer letter (Tr. at 135-136) in the Social Security Transcript. However, the letter states that additional evidence is enclosed and the Commissioner verifies that Dr. Cohen's report was included in this enclosure. (Def.'s Br. at 9-10).

Claimant also cites Goan v. Shalala, 853 F.Supp. 218, 219 (S.D.W.Va. 1994), stating the holding of the case as the following: "[A]n ALJ must choose either to grant a claimant the right to cross-examine a consulting physician submitting a post hearing report or decline to rely upon the physician's report." (Pl.'s Br. at 8). Claimant, however, fails to appreciate the holding of that case. In Goan v. Shalala, the Claimant sought to remand his case because the ALJ denied him the opportunity to cross-examine a doctor who provided a post-hearing report. Goan, 853 F.Supp. at 219. The Court upheld the Magistrate Judge's finding that the ALJ's refusal of Claimant's request to cross-examine the doctor was an abuse of discretion under the Regulations and constituted a denial of due process. Id. Goan provides no support for Claimant's contention. Here, the ALJ's letter specifically advised Claimant that she could question "the author(s) of the enclosed report(s)." (Tr. at 135). Claimant never responded to the letter or requested to cross-examine Dr. Cohen.

Lastly, Claimant cites Goree v. Callahan, 964 F.Supp. 1533 (N.D.Okla. 1997) and a case cited therein, Allison v. Heckler, 711 F.2d 145, 147 (10th Cir.). Claimant states that "[i]t has been held that the claimant is denied due process when an ALJ uses a post-hearing medical report without giving the claimant the opportunity to cross-examine the physician or rebut the report." (Pl.'s Br. at 8). Claimant similarly misunderstands the holdings of both Goree v. Callahan and Allison v. Heckler.

In Goree, the ALJ sent the claimant a letter notifying him that he received post-hearing evidence from a doctor and advising the claimant of his rights with respect to the new evidence. However, when the claimant requested in writing a supplemental hearing and the opportunity to cross-examine the doctor, the ALJ did not respond and instead issued his opinion denying benefits. Goree, 964 F.Supp. at 1536-1537. Goree, like the aforementioned case cited by Claimant, is not relevant to this matter. Here, the ALJ did not deny Claimant the right to question Dr. Cohen, to submit interrogatories, or to have a supplemental hearing. The ALJ simply advised Claimant of her rights and Claimant chose not to respond.

Allison v. Heckler, is likewise inapposite to this case. There, the ALJ sent the administrative hearing record to a doctor for review and then relied on the doctor's conclusions in finding the Claimant not disabled and denying benefits. The Court found that the Claimant was denied due process because he was never given the opportunity to subpoena or cross-examine the doctor or offer evidence in rebuttal. Allison, 711 F.2d at 147. b. Treating Psychologist Ms. Clay

Claimant next asserts that the ALJ "committed clear error in not addressing the weight of the decision he gave to the opinion of the treating psychologist." (Pl.'s Br. at 10). The opinion to which Claimant refers is that of Ms. Cynthia Clay, which was expressed in her letter dated May 13, 2006. (Tr. at 336-343).

Claimant does not point to any area in which the ALJ's RFC finding is inconsistent with the opinion of Ms. Clay. Rather, Claimant argues that the ALJ did not specifically enumerate the weight which he accorded to Ms. Clay's 2006 letter and accompanying Psychiatric Evaluation Form. To the extent that the ALJ did not explicitly state the weight that he afforded to this evidence, the Court finds this to be a harmless error for the following reasons.

Courts have applied a harmless error analysis in the context of Social Security appeals. One illustrative case provides:

Moreover, "[p]rocedural perfection in administrative proceedings is not required. This court will not vacate a judgment unless the substantial rights of a party have been affected." Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). The procedural improprieties alleged by Morris will therefore constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision.

Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) ("No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result"). Our Court of Appeals, in a number of unpublished decisions, has taken the same approach. See, e.g., Bishop v. Barnhart, No. 03-1657, 2003 WL 22383983, at *1 (4th Cir. Oct 20, 2003); Camp v. Massanari, No. 01-1924, 2001 WL 1658913, at *1 (4th Cir. Dec 27, 2001); Spencer v. Chater, No. 95-2171, 1996 WL 36907, at *1 (4th Cir. Jan. 31, 1996).

In reconciling the consideration cited by Claimant that the Court "cannot determine if findings are unsupported by substantial evidence unless the [ALJ] explicitly indicates the weight given to all of the relevant evidence," Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984), the Court finds that the ALJ's failure to explicitly state the weight given to Ms. Clay's 2006 letter to be harmless error because it does not "cast into doubt the existence of substantial evidence to support the ALJ's decision." Morris, 864 F.2d at 335.

The ALJ specifically mentions Ms. Clay's letter, indicating that he considered it. (Tr. at 22-23). Further, his determination of Claimant's mental impairments and RFC are consistent with Ms. Clay's observations. The RFC finding, in relevant part, states:

[Claimant] has a "fair" (defined as limited, but satisfactory) ability to use judgment; to deal with work stresses; to maintain attention/concentration; to understand, remember and carry out complex and detailed job instructions; to behave in an emotionally stable manner; to relate predictably in social situations; and to demonstrate reliability.

(Tr. at 20). Correspondingly, on a functional limitation scale of "none, slight, moderate, marked, or extreme," Ms. Clay assessed that Claimant had a "slight" restrictive of activities of daily living; a "moderate" difficulty in maintaining social functioning; and often experienced deficiencies of concentration, persistence, or pace. (Tr. at 341).

The entirety of the post-hearing evidence received from Ms. Clay consists of (1) Ms. Clay's letter, which states:

I am writing in response to your request for records of my work with Peggy Hood. I have been working with Ms. Hood in my practice since June, 2005. My diagnosis of Ms. Hood is (296.31) Major Depressive Disorder, Recurrent, Mild and (780.59) Breathing Related Sleep Disorder.

Symptoms related to these diagnoses include: depressed mood, loss of energy, sleep difficulty, difficulty with motivation, hopelessness, concentration problems and low self-esteem. She also reports having racing thoughts and irritability at times.

Ms. Hood has been consistent in attending appointments and has participated well. We have addressed daily coping skills/stress management, grief/loss issues and family or origin issues/loss.

(Tr. at 336) and (2) a Psychiatric Evaluation Form, which consists of "check off boxes" for which Ms. Clay checked the aforementioned disorders and symptoms and rated Claimant's degree of limitation as discussed above. (Tr. at 341).

Ms. Clay did not include any additional comments, treatment notes, or other evidence with the letter and form. Therefore, the evidence received from Ms. Clay does not conflict with the ALJ's findings. As such, remand is not warranted to correct the procedural technicality that the ALJ did not specify how much weight he afforded to Ms. Clay's observations.

Furthermore, the ALJ's decision is supported by substantial evidence. In respect to mental limitations, which is what Ms. Clay's evidence concerns, the ALJ thoroughly discussed the evidence which he considered in determining that Claimant had severe impairments of depression and borderline intellectual functioning. (Tr. at 17-18, Finding No. 4). In addition, the ALJ implemented the "special technique," outlined at 20 C.F.R. §§ 404.1520a and 416.920a, which is used in evaluating the severity of mental impairments. (Tr. at 18-19, Finding No. 5). In finding Claimant's mental RFC, the ALJ extensively discussed the evidence of record. (Tr. at 20-24, Finding No. 6). Claimant does not point to any area in the ALJ's decision which contravenes Ms. Clay's evidence, but only asserts a procedural error. Thus, as stated above, this argument does not warrant remand.

c. Hypothetical Posed to the Vocational Expert

Claimant's final assertion of error is that "the opinion of the vocational expert in this case cannot be used as substantial evidence to support the ALJ's unfavorable decision simply because the jobs cited were not in response to the hypothetical given in the decision." (Pl.'s Br. at 11).

As discussed the RFC finding in the ALJ's decision, in relevant part, states:

[Claimant] has a "fair" (defined as limited, but satisfactory) ability to use judgment; to deal with work stresses; to maintain attention/concentration; to understand, remember and carry out complex and detailed job instructions; to behave in an emotionally stable manner; to relate predictably in social situations; and to demonstrate reliability.

(Tr. at 20).

Claimant argues that the hypothetical which the ALJ posed to the vocational expert during the hearing, however, did not include these "psychological limitations." As such, Claimant argues that the vocational expert's statement that jobs existed which the Claimant could perform is invalid because she did not base her opinion on a hypothetical which fairly included all of Claimant's impairments. (Pl.'s Br. at 11).

Claimant misunderstands the requirement that the opinion of a vocational expert is not helpful if it is not delivered "in response to proper hypothetical questions which fairly set out all of [a] claimant's impairments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). A hypothetical posed to the expert need not reflect the RFC finding in the ALJ's decision with explicit precision in order to fairly set out a claimant's impairments. Rather, the hypothetical must "adequately reflect" the RFC for which the ALJ had sufficient evidence. Fisher v. Barnhart, 181 Fed. Appx. 359, 364 (4th Cir. 2006), quoting Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005).

Here, the ALJ first questioned the vocational expert whether the Claimant could perform any of her past work, considering the following limitations:

[H]er age of 51, her one year of business school that she went through, training and work experience, exertional impairments that limit her to light work. Non-exertionally, she should never climb ladders, ropes, or scaffolds, kneel, crouch, or crawl. She should only occasionally climb ramps and stairs, balance, and stoop. And she should avoid extreme cold, heat, vibration, air pollutants, and hazards.

(Tr. at 440-441). Claimant is correct that this hypothetical does not include mental limitations. However, the ALJ proceeded to question the expert if she could provide "two examples of light and sedentary, unskilled jobs." (Tr. at 441). As stated by the Fourth Circuit in Fisher, 181 Fed. Appx. at 364, "unskilled work" is a term of art, defined by regulation as "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time." 20 C.F.R. § 404.1568(a).

The ALJ's hypothetical fairly reflected Claimant's mental impairments without explicitly listing them. Like this case, the ALJ in Fisher found that the claimant suffered from borderline intellectual functioning, among other impairments. Fisher, 181 Fed. Appx. at 362. The borderline intellectual functioning, in combination with an adjustment disorder, rendered the claimant mildly restricted in activities of daily living and social functioning and moderately restricted in maintaining concentration, persistence, and pace. Id. However, the ALJ did not state these restrictions verbatim in the hypothetical posed to the vocational expert, but rather told the expert to assume that the claimant was capable of only "unskilled work" and that he could not "perform complex tasks." Id. at 364. The Court found that the hypothetical adequately represented the limitations that the ALJ listed in the RFC assessment. Id.; see also Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) ("We find that [a hypothetical question] describing [the claimant] as capable of doing simple work adequately accounts for the finding of borderline intellectual functioning").

The purpose of a hypothetical question posed to a vocational expert is to elicit a response as to whether a claimant can work, considering his or her limitations. Therefore, where the hypothetical encompasses the Claimant's mental limitations by virtue of questioning whether she can perform any "unskilled" jobs, the omission of the mental limitations in the hypothetical is justified.

Here, the ALJ acknowledges the omission of Claimant's mental impairments in the hypothetical that he posed to the expert. The ALJ states that he afforded great weight to Dr. Cohen's assessment, which was received after the hearing, in determining the mental limitations in the Claimant's RFC. (Tr. at 24). However, he further states that nevertheless, the mental limitations "would not change the jobs named by the vocational expert at the hearing, since all of those jobs are simple and routine in nature." Id. For the reasons stated above, the ALJ's conclusion is correct.

Based on the hypothetical posed, the vocational expert identified that Claimant could perform unskilled jobs such as bench worker, information clerk, house sitter/companion, and grader/sorter. Because these positions are "unskilled" jobs, they were based on an assumption of limited mental ability. Therefore, the hypothetical and the jobs cited in response are consistent with the ALJ's findings concerning Claimant's mental limitations and the omission did not render the vocational expert's testimony inaccurate.

VI. Conclusion

After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision IS supported by substantial evidence. Accordingly, by Judgment Order entered this day, the final decision of the Commissioner is AFFIRMED and this matter is DISMISSED from the docket of this Court.

The Clerk of this Court is directed to transmit copies of this Order to all counsel of record.

ENTERED: November 3, 2010.