Parker v. Commissioner of Social Security
Filing
20
AMENDED REPORT AND RECOMMENDATIONS amending the report and recommendation at Docket Entry No. 19. If the parties have no objection to this report and recommendation, they may promptly file a joint notice of no objection. Signed by Magistrate Judge Paul A. Zoss on 1/10/2014. (PAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CATRIONA DORA PARKER,
Plaintiff,
v.
Case No: 6:13-cv-521-Orl-22GJK
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
AMENDED REPORT AND RECOMMENDATION1
The Plaintiff Catriona Dora Parker (the “Claimant”) brings this action pursuant to the
Social Security Act (the “Act”), as amended, 42 U.S.C. § 405(g), to obtain judicial review of a
final decision of the Commissioner of Social Security (the “Commissioner”) denying her
application for benefits. Doc. No. 1. Claimant argues that the Administrative Law Judge (the
“ALJ”) erred by: 1) failing to account for Claimant’s moderate limitation in concentration,
persistence, and pace in his residual functional capacity (“RFC”) determination and at step-five of
the sequential evaluation process in the hypothetical question to the vocational expert (“VE”); and
2) failing to provide substantial evidence supporting the ALJ’s credibility determination. Doc.
No. 17 at 5-14. For the reasons that follow, it is RECOMMENDED that the Commissioner’s
final decision be REVERSED and REMANDED for further proceedings.
1
The Report and Recommendation (Doc. No. 19) is amended solely to reflect that the Conclusion section (see infra
p. 7) recommends that the case be reversed and remanded, and the Clerk be directed to enter judgment in favor of
the Claimant and against the Commissioner, and to close the case.
I.
STANDARD OF REVIEW.
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do
more than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937
F.2d 580, 584 n. 3 (11th Cir. 1991). The court “‘may not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].’” See Phillips v. Barnhart,
357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
II.
ANALYSIS.
A. Concentration, Persistence, and Pace.
Claimant argues that the ALJ’s RFC determination and hypothetical to the VE did not
adequately reflect her mental limitations. Doc. No. 17 at 7-12. Specifically, Claimant argues
that the ALJ’s RFC determination and hypothetical to the VE do not adequately reflect her
moderate limitations in maintaining concentration, persistence, and pace. Doc. No. 17 at 7-12
(citing Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179-81 (11th Cir. 2011)). Since the
ALJ relied on the VE’s testimony in response to the ALJ’s hypothetical question to find that there
are jobs in the national economy that she can perform, Claimant contends that the ALJ’s decision
is not supported by substantial evidence. Doc. No. 17 at 8-12. The Commissioner maintains that
the ALJ’s finding at step-five is supported by substantial evidence because the ALJ’s RFC and
hypothetical question limited the Claimant to a “low stress position.” Doc. No. 18 at 5-7.
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During the hearing, the ALJ posed the following hypothetical question to the VE:
Q:
Assume I find that the Claimant is 45 years old, has a high
school education, plus a year of vocational school. Assume
further that she could perform light work, but is further
limited by the following exertional and non-exertional
impairments. She needs to avoid ladders or unprotected
heights. She needs to avoid the operation of heavy moving
machinery. She needs a low stress work environment.
She can occasionally bend, crouch, knee[l], stoop, squat, or
crawl. She needs to avoid the push pull arm controls. Can
the claimant perform any of her past work and if so, which
jobs?
A:
No, sir, the past work is eliminated with these restrictions.
Q:
All right. Let’s go down to entry level and assume the
claimant has no skills or semi-skill at all and that she’s the
age I previously described, has the work experience and
education previously stated. Assume further that she could
perform light work and has the same exertional and
nonexertional limitations I originally described. Are there
any entry level jobs the Claimant could perform . . .?
A:
Yes, sir. . . .
R. 48-49. Given these limitations, the VE testified that Claimant could perform the jobs of ticker
seller, dining room attendant, and order clerk. R. 49.
In the ALJ’s decision, at step-two, he determined that Claimant has the following severe
impairments: carpal tunnel syndrome, disorders of the spine, Lyme’s disease, obesity,
fibromyalgia, affective disorder, and anxiety. R. 19. In determining the severity of Claimant’s
mental impairments, i.e, affective disorder and anxiety, the ALJ found that Claimant has moderate
functional limitations in concentration, persistence or pace, stating:
With regard to concentration, persistence or pace, the claimant had
moderate difficulties. The claimant was able to discuss her
symptoms and limitations in a coherent manner. She was able to
operate a computer, read, do word searches, and shop. Her
performance of these tasks shows that her difficulties were only
moderate.
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R. 20. The ALJ generally states that his RFC assessment “reflects the degree of limitation the
[ALJ] has found in the . . . mental function analysis.” R. 21.
The ALJ determined that Claimant retains the RFC to perform light work with the
following additional limitations:
The claimant is able to occasionally lift and carry 20 pounds, and
she is able to frequently lift and carry 10 pounds. She must avoid
ladders and unprotected heights. She must avoid the operation of
heavy, moving machinery. She needs a low stress position. She
is able to occasionally bend, crouch, kneel, stoop, squat and crawl.
She must avoid push and pull arm controls.
R. 21. In making this finding, the ALJ thoroughly discussed the medical and opinion evidence,
and no party has raised any issue as to the accuracy of the ALJ’s summary of the evidence. R.
22-24; Doc. Nos. 17-18. The ALJ states the following with respect to Claimant’s mental health
issues:
[S]he has not received any treatment from a mental health
professional. She has only received medications from her primary
care physician. She is independent in her activities of daily living.
She has relationships with relatives and friends, and she is able to
use a computer and do word search puzzles. No mental health
professional opined that the claimant is disabled, and no mental
health professional imposed significant limitations upon the
claimant. The [ALJ] made allowances in the [RFC] for the
claimant’s mental ailments.
R. 23-24. At step-five of the sequential evaluation process, based on the VE’s testimony, the ALJ
found that there are a significant number of jobs in the national economy that Claimant can
perform. R. 25.
At step-five, the Commissioner bears the burden to show that, in light of the claimant’s
RFC and other factors, there exist a significant number of jobs in the national that the claimant can
perform. Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1180 (11th Cir. 2011); 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
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If such jobs exist, then the claimant is not
disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
An ALJ may make this
determination based on the VE’s response to hypothetical questions that contain the claimant’s
limitations. See Winschel, 631 F.3d at 1180.
For the VE’s testimony to constitute substantial evidence, the ALJ’s hypothetical question
need not include “each and every symptom of the claimant,” but must include “all of the claimant’s
impairments.” Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1270 (11th Cir. 2007).
In Winschel, the Eleventh Circuit held that if a claimant is found to suffer moderate limitations in
concentration, persistence, and pace, the ALJ must either “indicate that medical evidence
suggested [that claimant’s] ability to work was unaffected by [those] limitation[s],” or include
those limitations, either explicitly or implicitly, in the hypothetical question(s) posed to the VE.
Winschel, 631 F.3d at 1181.
The Commissioner argues that the ALJ’s RFC and hypothetical question “accommodates
[Claimant’s] moderate limitations in concentration, [persistence or pace because] it calls for a ‘low
stress position.’” Doc. No. 18 at 5-6. While the ALJ stated that his RFC accounts for Claimant’s
mental ailments and limitations (R. 21, 24), the only such limitation contained in the RFC and
hypothetical questions was the need for a “low stress position.” R. 21. “The category of
concentration, persistence or pace refers to the ‘ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate completion of tasks commonly
found in work settings.’” Moore v. Colvin, 2013 WL 1278085 at *7 (M.D. Fla. Mar. 28, 2013)
(quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00). Since Winschel, Courts in this district
have found that a restriction solely to low stress work or the avoidance of unusual stress in the
RFC and hypothetical question does not adequately account for a claimant’s moderate (as opposed
to mild) limitations in concentration, persistence or pace. Haynes v. Astrue, 2012 WL 4466478
-5-
at *7 (M.D. Fla. Sept. 27, 2012) (citing Brunson v. Astrue, 850 F.Supp.2d 1293 (M.D. Fla. 2011);
Berry v. Astrue, 2011 WL 1135091 (M.D. Fla. Mar. 28, 2011)).2 The court finds those cases
persuasive.
In this case, the ALJ found Claimant’s mental impairments severe at step-two, which result
in moderate limitations in concentration, persistence or pace. R. 19-21. Then, although the ALJ
stated that he incorporated those limitations into the RFC, the RFC and hypothetical question do
not account for those limitations either explicitly or implicitly. R. 21, 23-24; see Winschel, 631
F.3d at 1181; Haynes, 2012 WL 4466478 at *7 (M.D. Fla. Sept. 27, 2012) (citing persuasive
authority).3 Thus, the ALJ’s decision is not supported by substantial evidence, and the case must
be remanded for further proceedings.4
III.
CONCLUSION.
Accordingly, it is RECOMMENDED that the Court:
2
The Commissioner relies on Camarillo-Ngo v. Astrue, 2010 WL 1257474 at *3-10 (M.D. Fla. Mar. 29, 2010), for
the proposition that an ALJ adequately accounts for moderate limitations in concentration, persistence or pace by
limiting a claimant to a low stress job in the RFC and hypothetical question. Doc. No. 18 at 7. The RFC in
Camarillo-Ngo is materially similar to the RFC in this case, but the case was decided before the Eleventh Circuit’s
holding in Winschel. Accordingly, the court does not find Camarillo-Ngo persuasive.
3
Since Winschel, the Eleventh Circuit has recognized that a hypothetical question could sufficiently account for
moderate limitations in concentration, persistence, and pace by including restrictions to simple or routine tasks,
unskilled work, and/or one to two step tasks, if the medical evidence demonstrates that the claimant has the ability to
perform those tasks despite such limitations. See, e.g., Timmons v. Comm’r of Soc. Sec., 522 F. App’x 897, 907 (11th
Cir. 2013); Jacobs v. Comm’r of Soc. Sec., 520 F. App’x 948, 950-1 (11th Cir. 2013); Washington v. Soc. Sec. Admin.,
Comm’r, 503 F. App’x 881, 883 (11th Cir. 2013); Scott v. Comm’r of Soc. Sec., 495 F. App’x 27, 29 (11th Cir. 2012);
Syed v. Comm’r of Soc. Sec., 441 F. App’x 632, 634-5 (11th Cir. 2011); Jarrett v. Comm’r of Soc. Sec., 422 F. App’x
869, 871-2 (11th Cir. 2011). However, the ALJ’s RFC and hypothetical question in this case contained no such
limitations. R. 21, 48-49. The court is unaware of any case from the Eleventh Circuit, post-Winschel, and the
Commissioner has not provided none, finding a limitation solely to “low stress positions” adequately accounts for a
claimant’s moderate limitations in concentration, persistence or pace.
4
On remand, the ALJ will necessarily have to reconsider all of the evidence and formulate a new RFC. In doing so
the the ALJ will also have to make a new credibility determination. Accordingly, based on the ALJ’s errors in
determining the RFC and at step-five of the sequential evaluation process, it is unnecessary to determine whether the
ALJ’s credibility determination is supported by substantial evidence.
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1.
REVERSE and REMAND the final decision of the Commissioner for further
proceedings;
2.
Direct the Clerk to enter judgment in favor of the Claimant and against the
Commissioner, and to close the case.
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from
attacking the factual findings on appeal.
Recommended in Orlando, Florida on January 10, 2014.
Copies furnished to:
Presiding District Judge
Counsel of Record
Richard A. Culbertson
Suite E
3200 Corrine Dr
Orlando, FL 32803
John F. Rudy, III
Suite 3200
400 N Tampa St
Tampa, FL 33602
Mary Ann Sloan, Regional Chief Counsel
Dennis R. Williams, Deputy Regional Chief Counsel
Susan Kelm Story, Branch Chief
Christopher G. Harris, Assistant Regional Counsel
Office of the General Counsel, Region IV
Social Security Administration
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia 30303-8920
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The Honorable Robert Droker
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Desoto Building #400
8880 Freedom Crossing
Jacksonville, FL 32256-1224
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