Curtis v. Social Security Administration
ORDER REMANDING TO THE COMMISSIONER. The ALJ failed to properly account for moderate limitations with regard to concentration, persistence, or pace. This case is therefore remanded to the Commissioner with instructions to develop the record as necessary and to reassess Curtis's RFC, accounting fully for all impairments. Signed by Magistrate Judge Jerome T. Kearney on 1/9/2018. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ANGIE M. CURTIS
NANCY A. BERRYHILL,
Social Security Administration
ORDER REMANDING TO THE COMMISSIONER
Angie Curtis filed for social security disability benefits with an alleged onset date
of May 1, 2003. (R. at 59). The administrative law judge (ALJ) denied her application
after a hearing. (R. at 25). The Appeals Council declined Curtis’s request for review. (R.
at 4). Curtis has requested judicial review, and the parties have consented to the
jurisdiction of the Magistrate Judge.
For the reasons stated below, this Court reverses and remands the
The Commissioner’s Decision
The ALJ found that Curtis had the severe impairments of post history tibia/fibula
fracture; obesity; unspecified depressive disorder with anxious distress; sedative,
hypnotic, and anxiolytic use disorder; borderline intellectual functioning; history of
back pain; and bronchitis/COPD. (R. at 16). The ALJ found that she had the residual
functional capacity (RFC) to perform sedentary work. (R. at 19). Specifically, he found
that she could lift and carry up to 10 pounds occasionally; could sit for a total of eight
hours in an eight-hour workday; could stand/walk for a total of two hours in an eighthour workday; must avoid excessive exposure to dust, smoke, fumes, and other
pulmonary irritants; and could perform simple, routing, repetitive tasks with
supervision that is simple, direct, and concrete. (R. at 19). The ALJ took testimony from
a vocational expert (VE) and determined that this RFC would not allow Curtis to return
to her past relevant work. (R. at 23). The VE further testified, however, that the RFC
would allow Curtis to perform other jobs such as lamp shade assembler or general office
clerk. (R. at 24). The ALJ therefore held that Curtis was not disabled. (R. at 24–25).
Curtis argues that the ALJ failed to fully and fairly develop the record; that the
ALJ failed to include limitations related to moderate difficulties with concentration,
persistence, or pace; and that the ALJ’s hypothetical questions to the VE were
inadequate. As this Court holds that the ALJ failed to include limitations related to
concentration, persistence, or pace in the RFC, it is not necessary to reach Curtis’s other
On review, this Court determines whether substantial evidence on the record as a
whole supports the ALJ’s decision. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
“Substantial evidence” is evidence that a reasonable mind would find sufficient to
support the ALJ’s decision. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009).
Reversal is not warranted merely because substantial evidence exists to support a
contrary conclusion. Long, 108 F.3d at 187.
The ALJ found at step three of the evaluative process that Curtis had moderate
difficulties with regard to concentration, persistence, or pace. (R. at 17). Curtis argues
that the RFC contains no limitations relating to these difficulties. The Commissioner
argues that the ALJ does not have to account for limitations identified at step three
when formulating the RFC.
Curtis cites to Newton v. Chater, where the Eight Circuit reversed where an ALJ
failed to present limitations of concentration, persistence, or pace to a VE. 92 F.3d 688,
695 (8th Cir. 1996). The Commissioner responds by citing Brachtel v. Apfel, arguing
that the Eighth Circuit held in that case that a limitation to simple work fully accounted
for deficiencies in concentration, persistence, or pace. 132 F.3d 417, 421 (8th Cir. 1997).
That, however, was not the case in Brachtel. The Eighth Circuit specifically noted that
the Brachtel RFC contained limitations relating to concentration, persistence, or pace
that were not present in Newton. Id. Brachtel does not supplant Newton, rather, it was
distinguished from Newton. The distinction is absent here.
The Commissioner also maintains that the differences are acceptable because the
determination of severity at step three only apply to step three and are not an RFC. It is
true that the step three determination is not an RFC. However, the difference is that the
RFC is required to have greater detail. Titles II & XVI: Assessing Residual Functional
Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996). Impairments are nonsevere if the degree of limitation is “none” or “mild” unless evidence shows a more than
minimal limitation in the ability to do basic work activities. 20 C.F.R. §§
404.1520a(d)(1), 416.920a(d)(1). The ALJ performs an RFC assessment concerning
severe impairments that do not meet a listing. 20 C.F.R. §§ 404.1520a(d)(3),
416.920a(d)(3). The RFC must account for all of a claimant’s impairments. Mabry v.
Colvin, 815 F.3d 386, 390 (8th Cir. 2016).
The step three determination and the RFC determination are not so disparate
that they can be contradictory. An internal inconsistency in the ALJ’s decision such as
this is legal error and requires remand.
The ALJ failed to properly account for moderate limitations with regard to
concentration, persistence, or pace. This case is therefore remanded to the
Commissioner with instructions to develop the record as necessary and to reassess
Curtis’s RFC, accounting fully for all impairments.
It is so ordered this 9th day of January, 2018.
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE
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