McMillian v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 10/4/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
YEVON McMILLIAN,

:

Plaintiff,

:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 12-0108-C

:

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for
disability insurance benefits. The parties have consented to the exercise of jurisdiction
by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.
(Docs. 17 & 19 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.
73, the parties in this case consent to have a United States Magistrate Judge conduct any
and all proceedings in this case, . . . order the entry of a final judgment, and conduct all
post-judgment proceedings.”).) Upon consideration of the administrative record,
plaintiff’s brief, the Commissioner’s brief, and the parties’ arguments at the September
26, 2012 hearing before the undersigned, it is determined that the Commissioner’s
decision denying plaintiff benefits should be reversed and remanded for further
proceedings not inconsistent with this decision.1
1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 19 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of

(Continued)

Plaintiff alleges disability due to hypertension, diabetes mellitus, and depression.
The Administrative Law Judge (ALJ) made the following relevant findings:
1.
The claimant last met the insured status requirements of the
Social Security Act on September 30, 2009.
2.
The claimant did not engage in substantial gainful activity
during the period from alleged onset date of September 26, 2009
through her date last insured of September 30, 2009 (20 CFR 404.1571 et
seq.).
3.
Through the date last insured, the claimant had the following
severe impairments: hypertension, diabetes mellitus and depression (20
CFR 404.1520(c)).
4.
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
The claimant’s mental impairments, considered singly and in
combination, did not meet or medically equal the criteria of listing 12.04.
In making this finding, the undersigned has considered whether the
“paragraph B” criteria were satisfied. To satisfy the “paragraph B” criteria,
the mental impairments must result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every 4 months, each lasting for at least 2
weeks.
In activities of daily living, the claimant had moderate restriction. In social
functioning, the claimant had moderate difficulties. With regard to
concentration, persistence or pace, the claimant had moderate difficulties.
As for episodes of decompensation, the claimant had experienced no
episodes of decompensation, which have been of extended duration.
.

.

.

Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))

2

The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p). Therefore, the following residual functional
capacity assessment reflects the degree of limitation the undersigned has
found in the “paragraph B” mental function analysis.
5.
After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the residual
functional capacity to perform less than the full range of light work as
defined in 20 CFR 404.1567(b). Light work is defined in 20 CFR
404.1567(b) as work that involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10
pounds. A job in this category may involve a good deal of walking or
standing, usually 6 hours out of 8 hours, or when it involves sitting,
generally 2 hours out of 8 hours, may involve pushing and/or pulling
with arm or leg controls. Additionally, the work should involv[e] no
climbing of ropes, ladders, or scaffolds; no more than occasional
bending, stooping, crouching, crawling or kneeling; no work at
unprotected heights; no work with hazardous machinery; no operating
of motor vehicles and no more than occasional contact with the general
public.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical
3

evidence, the undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case record.
At the time the claimant filed her current application she completed a
Disability Report-Adult and reported she had high blood pressure,
diabetes, anxiety, depression, high cholesterol, arthritis and rapid
heartbeat. She stopped working on July 20, 2007. She had past work as an
inspector and multiple jobs at a sewing factory [].
The claimant also completed a Function Report-Adult and stated that she
lived in a house with her husband. During the day, she did some chores,
but slept a lot due to the medications. She had some trouble with personal
care, putting on her shoes and shortness of breath. She did not drive, but
shopped for groceries and personal items. She was able to count change
and handle money accounts. Her flowers in the yard used to be her hobby,
but no more. She went to church sometimes, but did not like being around
people. Her ability to lift, squat, bend stand, reach, walk, sit, kneel, talk,
stair climb, see, memory, complete tasks, concentrate, understand, follow
instructions, and use hands had been affected by her condition. The
claimant reported she could not handle stress, had physical limitations,
and had memory problems, heart palpitations, trouble concentrating,
problems completing tasks, weakness, numbness in her fingers, sleepiness
and side effects from her medications.
The claimant testified she was . . . disabled due to “sugar and blood
pressure” and depression. She testified . . . [s]he had problems with
functioning and with her concentration.
The undersigned has considered the evidence, particularly with regard to
two issues[:] the evidence that was considered in the administrative law
judge decision issued on September 25, 2009, in which Res Judicata
applies, and the pertinent evidence with regard to the claimant’s date last
insured of September 30, 2009.
The evidence in the prior decision, which is presented for historical
reference only as Res Judicata applies, reflects the claimant was treated at
Franklin Primary Health Center from 2002 to 2007 for various complaints,
some of which included hypertension, diabetes mellitus, . . . anxiety and
depression.
.

.

.

[Medical evidence pertinent to the time period in this decision reflects
that] Ellen N. Eno, Ph.D. with the State Agency completed a Psychiatric
Review Technique form on January 19, 2010 and considered Listing 12.04Affective Disorder and 12.06-Anxiety Related Disorder and opined there
was insufficient evidence to make a decision. Dr. Eno noted the claimant’s
treatment history from Dr. Wood from January 13, 2009, to June 8, 2009,
for anxiety and depression; and treatment from Waynesboro Family
4

Medicine from October 23, 2009, to November 13, 2009, for anxiety and
history of depression [].
Records from West Alabama Mental Health Center reflect the claimant
presented on January 19, 2010, and was assessed with depressive disorder,
not otherwise specified, and rule out anxiety disorder, not otherwise
specified. The claimant was given a Global Assessment Functioning Score
(GAF) of 50.2 On February 2, 2010, she presented and was noted to be
pleasant and cooperative. On March 23, 2010, the claimant was noted to
have normal affect and was oriented to person, place, time and situation.
She was noted to have moderate symptoms. On April 8, 2010, the claimant
was diagnosed with major depressive disorder, recurrent. She returned on
April 19, 2010, and was given a GAF of 45. On May 20, 2010, the claimant
reported being upset and going into a rage. On June 22, 2010, the claimant
reported homicidal thoughts and was counseled on appropriate and
inappropriate responses to her emotions. On July 8, 2010, the claimant was
noted to have restricted affect and some hallucinations. On July 22, 2010,
the claimant reported nightmares, had a restricted affect and reported she
saw people in shadows [].
.

.

.

Updated records from West Alabama Mental Health reflect the claimant
was seen on September 29, 2010, for counseling and treatment for
depression; on October 25, 2010, for counseling for depression with
frequent outbursts; on November 8, 2010, when she reported voices,
suicidal thoughts and feelings of worthlessness; on November 23, 2010, for
counseling; on January 5, 2011 for depression, anxiety and hallucinations;
on February 7, 2011, for major depressive disorder, and on February 14,
2011, for problems with sleeping, appetite disturbance and socially
withdrawn [].
.

.

.

On March 3, 2011, records from West Alabama Mental Health reflect[] the
claimant had major depressive disorder. On March 14, 2011, the claimant
continued to report persistence (sic) anxiety, depression and
hallucinations. On April 20, 2011, the claimant was again seen for
individual counseling.

2

“According to the Diagnostic and Statistical Manual of Mental Disorders, 4th
Edition, a Global Assessment of Functioning of between 41 and 50 represents: Serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR serious
impairment[s] in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” (Tr. 27, at n.3 (emphasis in original).)

5

After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.
The issue before the undersigned administrative law judge is to determine
if the evidence is convincing that the claimant is disabled from the date of
her amended onset date of September 26, 2009, to September 30, 2009, the
claimant’s date last insured.
In this particular case, within the parameters that are set out above, the
undersigned has considered the evidence and finds that the evidence
reflects, for the pertinent time period, the claimant had the ability to
perform within the residual functional capacity as set out in the decision.
The evidence reflects the claimant did not have such severe impairments
that she was not able to perform work activity.
The prior administrative law judge decision that was issued on September
25, 2009, found that the claimant was able to perform her past relevant
work. Likewise, the medical information before the claimant’s date last
insured of September 30, 2009, does not reflect a decrease in her functional
ability or marked limitations either physical or mental.3 Essentially, the
information found in Exhibit 14 reflects some medical evidence that was
not considered in her earlier decision as well as medical evidence that was
received up to her date last insured.
.

.

.

Unfortunately, the subsequent evidence following the claimant’s date last
insured reflects a progressive worsening of mental impairments and a
decrease in the claimant’s physical impairments. However, as the claimant
has filed for disability insurance benefits, which requires an insured
status, as noted in Sections [] 216(i) and 223 of the Social Security Act, the
claimant must establish disability on or before that date in order to be
entitled to benefits. In this particular case, the evidence does not reflect a
disability before her date last insured. Although the subsequent evidence
does reflect a progressive worsening of impairments that is not the issue
in this particular case and the medical evidence of record after her date
lase insured is not relevant to this particular claim for disability.

3

The primary problem with this conclusory analysis is that the prior ALJ not only
did not find plaintiff’s depression to be a severe impairment, he did not analyze any of the
evidence of record regarding her depression. (See Tr. 53-62.)

6

6.
Through the date last insured, the claimant was capable of
performing past relevant work as a wire stripper (light/unskilled)
(DOT#691.685-018) and trimmer (light/unskilled) (DOT#789.687-050).
This work did not require the performance of work-related activities
precluded by the claimant’s residual functional capacity (20 CFR
404.1565).
The vocational expert testified the claimant could perform her past work
activity. In comparing the claimant’s residual functional capacity with the
physical and mental demands of this work, the undersigned finds that the
claimant was able to perform it as actually and generally performed.
7.
The claimant was not under a disability, as defined in the Social
Security Act, at any time from September 26, 2009, the alleged onset
date, through September 30, 2009, the date last insured (20 CFR
404.1520(f)).
(Tr. 23-24, 24-25, 27 & 28-29 (internal citations omitted but footnote retained; emphasis
in original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the
hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
In making a social security disability determination, the Commissioner employs
a five-step sequential evaluation process. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of proof at each of the first four steps of the
process, which are: (1) whether she is currently performing substantial gainful activity;
(2) whether she has severe impairments; (3) whether her severe impairments meet or
medically equal a listed impairment; and (4) whether she can perform her past relevant
work. See id. at 1237-1239. It is only at the fifth step of the sequential evaluation process
that the burden shifts to the Commissioner, who must establish that there are a
significant number of jobs in the national economy that the claimant can perform. See id
at 1239-1240.
An ALJ’s determination of the claimant’s residual functional capacity (“RFC”)
“informs both steps four and five of the evaluation [process].” Snyder v. Commissioner of
7

Social Security, 330 Fed.Appx. 843, 849, 2009 WL 1492653, *5 (11th Cir. May 29, 2009).
For instance, at the fourth step of the sequential evaluation process—the step at which
the ALJ in this case concluded his analysis—“the claimant’s RFC is compared with the
physical and mental demands of the claimant’s past relevant work[,]” and “[i]f it is
found that the claimant can still perform her past relevant work, the claimant is not
disabled.” Klawinski v. Commissioner of Social Security, 391 Fed.Appx. 772, 774, 2010 WL
3069718, *2 (11th Cir. Aug. 6, 2010) (citing 20 C.F.R. § 404.1520(f)); see also Hennes v.
Commissioner of Social Security Administration, 130 Fed.Appx. 343, 345, 2005 WL 1027242,
*2 (11th Cir. May 3, 2005) (“[T]he ALJ—at the fourth-step of this evaluation process—
must assess the claimant’s RFC and determine whether the claimant can perform her
past relevant work, despite her impairment[s]. If the claimant can return to her past
relevant work, she is not disabled.” (internal citations omitted)).4
The [RFC] is an assessment, based upon all of the relevant evidence, of a
claimant’s remaining ability to do work despite [her] impairments. In
evaluating a claimant’s RFC, the ALJ considers the claimant’s ability to
meet the physical, mental, sensory, and other requirements of work.
Ehrisman v. Astrue, 377 Fed.Appx. 917, 919, 2010 WL 1780248, *1 (11th Cir. May 5, 2010)
(internal quotation marks and citations omitted). “To support a conclusion that the
claimant is able to return to [her] past relevant work, the ALJ must consider all the
4

Obviously, this RFC determination must be supported by substantial evidence.
Cf. Moreno v. Astrue, 366 Fed.Appx. 23, 28, 2010 WL 476697, *4 (11th Cir. Feb. 12, 2010) (“The
present inquiry concerns the fourth step of the sequential evaluation process [and] whether []
substantial evidence supports the ALJ’s finding that Moreno could perform her past relevant
work.”), cert. denied,
U.S.
, 131 S.Ct. 97, 178 L.Ed.2d 61 (2010). Substantial evidence is
defined as more than a scintilla and means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971). “In determining whether substantial evidence exists, we must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). This Court’s
review of the Commissioner’s application of legal principles, however, is plenary. Walker v.
Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

8

duties of that work and evaluate the claimant’s ability to perform them in spite of [her]
impairments.” Battle v. Astrue, 243 Fed.Appx. 514, 522, 2007 WL 2193546, *6 (11th Cir.
Aug. 1, 2007). While it is certainly true that the testimony of a vocational expert (“VE”)
is not required in determining whether a claimant can perform her past relevant work,
see Lucas v. Sullivan, 918 F.2d 1567, 1573 n.2 (11th Cir. 1990), “the regulations provide
that ‘the services of vocational experts or vocational specialists’ may be used in making
this determination because such an expert ‘may offer relevant evidence within his or
her expertise or knowledge concerning the physical and mental demands of a
claimant’s past relevant work, either as the claimant actually performed it or as
generally performed in the national economy.’” Hennes, supra, 130 Fed.Appx. at 346 (all
citations omitted, including internal citations); see also Battle, supra, 243 Fed.Appx. at 522
(“The regulations permit an ALJ to consider a VE’s opinion when making this
determination.”). When an ALJ charts the path of considering a VE’s testimony at the
fourth step, as the ALJ admittedly has done in this case (see Tr. 29 (“Through the date
last insured, the claimant was capable of performing past relevant work as a wire
stripper . . . and trimmer . . . . This work did not require the performance of workrelated activities precluded by the claimant’s residual functional capacity . . . . The
vocational expert testified the claimant could perform her past work activity. In
comparing the claimant’s residual functional capacity with the physical and mental
demands of this work, the undersigned finds that the claimant was able to perform it as
actually and generally performed.”)), “’[i]n order for a [VE’s] testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments.’” Battle, supra, 243 Fed.Appx. at 522, quoting Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002).

9

In this case, the plaintiff contends that the Commissioner erred in finding that
she can perform her past relevant work as a wire stripper and trimmer since the
hypothetical question upon which he relied in making this determination was
incomplete (see Doc. 12, at 3), specifically because the hypothetical question did not
include the moderate limitations in concentration, persistence, and pace found by the
ALJ at the third step of the sequential evaluation process (id. at 6).5 The foregoing
analysis provides an appropriate transition into consideration of the claimant’s issue, as
does the Eleventh Circuit’s recognition in Winschel v. Commissioner of Social Security, 631
F.3d 1176 (2011)6 that requiring a hypothetical question posed to a VE to specifically
account for limitations in concentration, persistence, and pace identified in the
Psychiatric Review Technique Form (“PTRF”)—or its mode of analysis—does not
improperly conflate the PRT inquiry at steps two and three of the sequential evaluation
process with the RFC inquiry at steps four and five. See id. at 1180. Indeed, “[t]hough
the PRT and RFC evaluations are undeniably distinct, nothing precludes the ALJ from

5

The ALJ posed the following relevant hypothetical to the VE in this case: “I’d like
you to assume a hypothetical person, same age, same education, same past work as the claimant
and further assume that this person is limited to light, unskilled work that involves no climbing
of ropes, ladders or scaffolds. No more than occasional bending, stooping[,] crouching or
kneeling. No work at unprotected heights. No work with hazardous machinery. No operating
of motor vehicles and no more than occasional contact with the general public.” (Tr. 45-46.) In
response to this hypothetical question, the VE testified that the hypothetical individual could
perform plaintiff’s past work as a wire stripper and trimmer. (Id. at 46.)
The ALJ’s third hypothetical question posed to the VE is also relevant to the issue
plaintiff raises in this case inasmuch as the third hypothetical question asked the VE to assume
the same individual with the same limitations as set out in the first hypothetical but added the
further assumption that the individual “has a marked impairment in [her] ability to sustain
concentration, persistence or pace.” (Id.) In response to this hypothetical question, the VE
responded that the individual could not perform any past work or, indeed, any work in the
national economy. (Id. at 46-47.)
6

In bringing this issue to the Court’s attention, plaintiff heavily relies upon the
Winschel case. (See Doc. 12, at 8-9.)

10

considering the results of the former in his determination of the latter.” Id. (internal
citation omitted), citing Ramirez v. Barnhart, 372 F.3d 546, 555 (3rd Cir. 2004) (“’While
[Social Security Ruling] 96-8p does state that the [PRT] findings are “not an RFC
assessment” and that step four requires a “more detailed assessment,” it does not
follow that the findings on the [PRT] play no role in steps four and five, and [Social
Security Ruling] 96-8p contains no such prohibition.’”). Thus, in considering issues like
the one raised by plaintiff in the instant case, the Eleventh Circuit in Winschel provides
additional guidance, as follows:
Other circuits have [] rejected the argument that an ALJ generally
accounts for a claimant’s limitations in concentration, persistence, and
pace by restricting the hypothetical question to simple, routine tasks or
unskilled work. But when medical evidence demonstrates that a claimant
can engage in simple, routine tasks or unskilled work despite limitations
in concentration, persistence, and pace, courts have concluded that
limiting the hypothetical to include only unskilled work sufficiently
accounts for such limitations. Additionally, other circuits have held that
hypothetical questions adequately account for a claimant’s limitations in
concentration, persistence, and pace when the questions otherwise
implicitly account for these limitations.
Id.; see also Syed v. Commissioner of Social Security, 441 Fed.Appx. 632, 635, 2011 WL
4425309, *3 (11th Cir. Sept. 22, 2011) (“[A]lthough the hypothetical question posed by
the ALJ to the VE did not expressly include Syed’s impairments, it implicitly accounted
for them, and thus, was not improper. As the record shows, the hypothetical included
that there were impairments, and that the individual would require a low-stress work
environment. Indeed, the medical evidence demonstrated that Syed could engage in
simple, routine tasks and unskilled work despite any limitations, as he was not
significantly limited in his ability to complete simple work-like procedures. The medical
evidence also showed that Syed understood and followed specific, multi-step
instructions, and was cooperative and responsive. Thus, Syed was only moderately
limited in his work capabilities, could accept instruction and criticism, and was not
11

significantly limited in his ability to complete simple work-like procedures. Because
simple, unskilled work sufficiently accounted for limitations in concentration,
persistence, and pace, as set forth in Winschel, the hypothetical posed adequately
accounted for Syed’s limitations as they were implicitly included.”); Kinnard v.
Commissioner of Social Security, 426 Fed.Appx. 835, 837, 2011 WL 1849319, *1 (11th Cir.
May 17, 2011) (hypothetical question posed to the VE found to be complete where the
ALJ asked the VE “to determine what work could be performed by a claimant who was
mildly limited in his ability to understand, remember, and execute complex
instructions; mildly to moderately limited in his ability to make judgments on complex
work-related decisions; mildly limited in his ability to interact appropriately with the
public, supervisors, and coworkers; and mildly limited in his ability to respond
appropriate[ly] to changes in a routine work setting.”); Jarrett v. Commissioner of Social
Security, 422 Fed.Appx. 869, 871, 2011 WL 1378108, *2 (11th Cir. Apr. 11, 2011) (“In this
case, the ALJ’s hypothetical questions adequately accounted for Jarrett’s impairment in
concentration, persistence, and pace. In one of the hypotheticals, the ALJ asked the VE
to assume an individual with Jarrett’s age, education, and work experience who could
only ‘understand, remember, [and] carry-out simple tasks and concentrate for brief
periods of time.’ By including that Jarrett had limitations in her ability to concentrate,
this hypothetical questions adequately accounted for the ALJ’s finding that Jarrett had
moderate difficulties in concentration, persistence, and pace.”).
This Court is unable to find that the ALJ’s hypothetical questions accounted for
McMillian’s moderate limitations in concentration, persistence and pace.7 In this regard,

7

The ALJ specifically determined at step three of the sequential evaluation process
that plaintiff had moderate difficulties with regard to concentration, persistence and pace. In

(Continued)
12

although the first hypothetical posed to the VE can be read to account for plaintiff’s
moderate difficulties in social functioning, by inclusion of language that the
hypothetical individual was to have “no more than occasional contact with the general
public[,]” restricting the hypothetical question to unskilled light work did not account
for plaintiff’s moderate limitations in concentration, persistence, and pace. This
conclusion is reached not solely because the Eleventh Circuit in Winschel, supra, joined
other circuits in rejecting the argument that an ALJ accounts “for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical
question to simple, routine tasks or unskilled work[,]” 631 F.3d at 1180, but, as well,
because the ALJ in this particular case recognized that limiting the hypothetical
question to unskilled work does not account for limitations in concentration,
persistence, and pace inasmuch as in the third hypothetical question he posed to the VE,
the ALJ made the same assumptions contained in the first hypothetical (including the
limitation to light unskilled work) only to add the additional assumption that the
individual would have a marked impairment in her ability to sustain concentration,
persistence or pace (see Tr. 46). Because the ALJ in this case has implicitly, if not
explicitly, admitted that a limitation in maintaining concentration, persistence and pace
is an additional assumption relevant for consideration by a VE, it is clear to the
undersigned that the ALJ should have included in the hypothetical question posed to
the VE the moderate limitations in concentration, persistence, and pace that he
explicitly found at step three of the sequential evaluation process. This is particularly
true since the ALJ gave no indication that the medical evidence of record suggested that

addition, the ALJ also specifically determined that plaintiff had a moderate restriction in
activities of daily living and moderate difficulties in social functioning. (Tr. 24.)

13

McMillian’s ability to work was unaffected by this limitation, “nor did he otherwise
implicitly account for this limitation in the hypothetical.” Winschel, 631 F.3d at 1181. As
previously indicated, the hypothetical assumptions that the individual can perform
light unskilled work and should have only occasional contact with the general public do
not implicitly account for McMillian’s admitted moderate limitations in concentration,
persistence, and pace. More importantly, nothing the ALJ relayed in his decision about
the medical evidence in this case demonstrates that the claimant retains the ability to
perform unskilled work despite her moderate difficulties in maintaining concentration,
persistence, and pace. Indeed, there is no medical evidence to which the ALJ refers that
shows, for instance, that McMillian could understand and follow specific, multi-step
instructions, while being cooperative and responsive, as was the situation in Syed, supra,
or that shows that “despite a moderate degree of limitation in maintaining
concentration, persistence, and pace, [plaintiff] was ‘able to follow simple instructions,
complete simple tasks, make decisions, avoid hazards, and relate adequately to function
in the workplace[,]’” as in Jarrett, supra.8
In light of the foregoing, the undersigned concludes that because the ALJ’s
relevant hypothetical question neither explicitly nor implicitly accounted for plaintiff’s
moderate limitations/impairments in concentration, persistence, and pace, the VE’s
8

While the ALJ in this case made a point of stating that “[t]he mental residual
functional capacity assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment by itemizing various functions contained in the broad
categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p)[,]” (Tr. 24), he makes no such detailed assessment as that would have
required him to “address the impact of Plaintiff’s moderate limitations in concentration,
persistence, or pace on [her] ability to ‘understand, carry out, and remember instructions; use
judgment in making work-related decisions; respond appropriately to supervision, co-workers
and work situations; and deal with changes in a routine work setting.’” Brunson v. Astrue, 850
F.Supp.2d 1293, 1303 (M.D. Fla. 2011), quoting SSR 96-8p. Simply put, the ALJ did not perform
the relevant analysis he identified as crucial in this case.

14

testimony is not “substantial evidence” and cannot support the ALJ’s conclusion that
McMillian could perform her past relevant work as a wire stripper and trimmer
through the date last insured under the Social Security Act. Compare Winschel, supra, 631
F.3d at 1181 with Battle, supra, 243 Fed.Appx. at 522 (in step four case, “’[i]n order for a
[VE’s] testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.’”).
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C.
§ 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 4th day of October, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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