ELLIOT v. ASTRUE

Filing 31

ENTRY ON JUDICIAL REVIEW: The ALJ in this case erred in assessing both a mental and physical RFC that is not supported by the record. Further, the ALJ's credibility determination of Ms. Elliot is un supported by the record. The decision of the Commissioner is therefore REVERSED AND REMANDED for further proceedings consistent with this Entry (see Entry). Signed by Judge William T. Lawrence on 3/17/2014.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
STEPHANIE E. ELLIOT,
Plaintiff,
vs.
CAROLYN W. COLVIN, acting
Commissioner of the Social Security
Administration,
Defendant.

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) Cause No. 1:13-cv-90-WTL-DML
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ENTRY ON JUDICIAL REVIEW
Plaintiff Stephanie Elliot requests judicial review of the final decision of Defendant,
Carolyn W. Colvin, Commissioner of the Social Security Administration (“Commissioner”),
denying Ms. Elliot’s application for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). The
Court rules as follows.
I.

PROCEDURAL HISTORY

Stephanie Elliot protectively filed for SSI and DIB on June 3, 2010, alleging she became
disabled on July 17, 2009, due to several medical conditions. Ms. Elliot’s application was
denied initially on September 20, 2010, and again upon reconsideration on December 20, 2010.
Following the denial upon reconsideration, Ms. Elliot requested and received a hearing in front
of an Administrative Law Judge (“ALJ”). A video hearing, during which Ms. Elliot was
represented by counsel, was held in front of ALJ Angela Miranda on October 5, 2011. The ALJ
issued her decision denying Ms. Elliot’s claim on November 18, 2011. The Appeals Council

also denied Ms. Elliot’s request for review on November 20, 2012. After the Appeals Council
denied review of the ALJ’s decision, Ms. Elliot filed this timely appeal.
II.

EVIDENCE OF RECORD

The evidence of record is aptly set forth in Ms. Elliot’s brief. Specific facts are set forth
in the discussion section below where relevant.
III.

APPLICABLE STANDARD

Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b).1 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelve-

1

The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.
2

month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 404.1520(f). At step five, if the claimant can perform any other work in the national economy,
she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this Court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Dixon, 270 F.3d at 1176.
IV.

THE ALJ’S DECISION

The ALJ determined at step one that Ms. Elliot had not engaged in substantial gainful
activity since July 17, 2009, the alleged onset date. At steps two and three, the ALJ concluded
that Ms. Elliot has the following severe impairments:
mental impairments variously assessed as depression, major depressive disorder,
dysthymic disorder, bereavement, anxiety, panic disorder, post traumatic stress
disorder, and anxiety with some post traumatic symptoms; seizure disorder
described as general seizure disorder, partial complex seizures with secondary
generalization, and stress response; back disorders described as mild spondylosis,
mild bulge at T5-6, and central and left protrusions multilevel in the thoracic
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spine with mild curvature, and mild changes of spondylosis and osteophyte
formation in the cervical spine status post partial corpectomy ac C5-6; and
Hashimoto’s thyroiditis status post thyroidectomy; and mild intermittent asthma
with tobacco use disorder.
R. at 29-30. The ALJ, however, found that her impairments, singly or in combination, did not
meet or medically equal a listed impairment. At step four, the ALJ determined that Ms. Elliot
had the RFC to perform sedentary work with certain limitations. Given that RFC, the ALJ
determined that she could not perform any of her past relevant work. Finally, at step five the
ALJ determined that Ms. Elliot could perform a range of work that exists in the national
economy, including a final assembler, lens inserter, and toy stuffer. Accordingly, the ALJ
concluded that Ms. Elliot was not disabled as defined by the Act.
V.

DISCUSSION

In her brief in support of her Complaint, Ms. Elliot argues that the ALJ: 1) erred in
assessing an RFC that is not supported by substantial evidence; 2) improperly dismissed her own
testimony; and 3) erred at Step Five. Each of her arguments will be addressed, in turn, below.
A. The ALJ’s RFC Assessment
1. Mental RFC
Ms. Elliot first argues that the ALJ erred in her mental RFC assessment. The relevant
portion of this assessment is as follow:
[M]entally the claimant has the capacity to understand, remember, and carry out
simple, routine tasks. The claimant has the capacity to appropriately interact with
supervisors and has the capacity for occasional interaction with coworkers and the
general public. The claimant has the capacity to identify and avoid normal work
place hazards and to adapt to routine changes in the workplace. Occasional
interaction with coworkers and the general public is defined as having the ability
to work in the vicinity of other workers or the general public, but actual
interaction for completion of job tasks is limited to 1/3 of the work day.

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Id. at 33. With regard to this assessment, Ms. Elliot argues that the ALJ erred in rejecting three
separate pieces of medical evidence that contradict the above limitations
First, Ms. Elliot argues that the ALJ erred in giving little weight to two opinions given by
Gayle Humes, a licensed mental health counselor2—one in July 2010 and the second in October
2011. In July 2010, Ms. Humes noted that Ms. Elliot was not able to attend to a simple work
routine on a consistent basis because “she fears moving out of her home not only because of her
depression and agoraphobia but also because of the frequency of her seizures.” Id. at 783.
Similarly, in October 2011, Ms. Humes noted that Ms. Elliot was “unable to meet competitive
standards” and/or had “no useful ability to function” in a number of areas, including her ability
to “maintain attention for two hour segments”; “maintain regular attendance”; “work in
coordination with or proximity to others without being unduly distracted”; “perform at a
consistent pace without an unreasonable number and length of rest periods”; and “accept
instructions and respond appropriately to criticism from supervisors.” See id. at 1116.
Ms. Elliot concedes that Ms. Humes is not an “acceptable medical source” as defined in
20 C.F.R. § 404.1513; rather, as a counselor, Ms. Humes is considered an “other source.” Social
Security Ruling (“SSR”) 06-03p states that information from these other sources “may provide
insight into the severity of the impairment(s) and how it affects the individual’s ability to
function” and “should be evaluated on key issues such as impairment severity and functional
effects, along with the other relevant evidence in the file.” Nevertheless, Ms. Elliot argues that
the ALJ incorrectly attributed the July 2010 opinion solely to Ms. Humes when it was also
counter-signed by Dr. Heather Downhour, a psychologist. See dkt. no. 14-12 at 784. She argues
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Ms. Elliot identifies Ms. Humes as a licensed clinical social worker (“LCSW”) in her
brief. See Pl.’s Brief at 9. However, it appears to the Court that Ms. Humes is actually a licensed
mental health counselor (“LMHC”) based on her signature. See, e.g., R. at 746, 1124.
Regardless, Ms. Humes is not an “acceptable medical source.”
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that this was an error because as a psychologist, Dr. Downhour was an “acceptable medical
source” and therefore, her opinion was entitled to controlling weight. The Court disagrees. The
evaluation was conducted by Ms. Humes and there is no evidence that Dr. Downhour saw Ms.
Elliot or that Ms. Humes consulted with Dr. Downhour in making her assessment. It appears to
the Court that the form simply had to be countersigned by either a physician or a psychologist,
and therefore, Dr. Downhour counter-signed the document. Despite the counter-signature, the
opinion is from Ms. Humes. As such, the ALJ was not required to give the opinion any added or
controlling weight. See SSR 06-03p (noting that the distinction between “acceptable medical
sources” and “other sources” is important because “only ‘acceptable medical sources’ can be
considered treating sources, as defined in 20 CFR 404.1502 and 416.902, whose medical
opinions may be entitled to controlling weight.”).
In giving “little weight” to Ms. Humes’ opinions, the ALJ noted that “the claimant had
GAF [Global Assessment of Functioning] scores reflecting only moderate limitations3 and that,
although her depression increased and improved over time, she suffered no psychosis and
continued to be able to manage her activities of daily living.” R. at 39. As noted above, the ALJ
was not required to give controlling weight to Ms. Humes’ opinions; however, Ms. Humes gave

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Ms. Elliot also takes issue with the ALJ’s failure to mention that she had a GAF score of
29 in May 2011 when she was admitted to the hospital. See R. at 980. While the ALJ did not
specifically mention this score, the ALJ did note that Ms. Elliot
reported to the emergency room after taking six additional Vistaril with the intent
to harm herself. She was transferred to Community North Hospital after
endorsing suicidal ideations. She was admitted to the hospital following her
overdose. . . . She stayed in the hospital for a week during which time she
received individual and group therapy. . . . She was discharged in an improved
condition with a fair prognosis depending on her compliance with treatment.
Id. at 38. The Court, therefore, sees no error in the ALJ’s failure to specifically note that at this
time, Ms. Elliot was given a GAF score of 29.
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opinions on the severity of Ms. Elliot’s mental impairments and their functional effects that the
ALJ was required to consider.
It is unclear to the Court why the ALJ gave Ms. Elliot’s lack of psychosis as a reason for
discounting Ms. Humes’ opinions. While the ALJ is correct that she does not suffer from
psychosis, she failed to explain why this resulted in assigning little weight to Ms. Humes’
opinions. It does not appear from the Court’s review of the record that Ms. Humes ever reported
that Ms. Elliot suffered from psychosis. Further, as discussed more fully below, the ALJ’s
discussion of Ms. Elliot’s daily activities differs greatly from what is actually reflected in the
record; Ms. Humes’ descriptions of Ms. Elliot’s daily activities are consistent with what the
record actually reflects. See id. at 783 (describing Ms. Elliot’s current daily activities as follow:
“Get up in a.m. take meds. Feed Kaitlin breakfast, make sure she is dressed, brush my hair, lie
on couch . . . watch TV . . . fix supper . . . take meds, lie back down, watch movie and get ready
for bed – can’t leave house”). Finally, the ALJ is correct that GAF scores of 51-60 indicate
moderate symptoms; but these include flat affect, circumstantial speech, occasional panic
attacks, few friends, and conflicts with co-workers. These symptoms are consistent with what
Ms. Humes reported in her opinions. See id. at 1115 (noting that Ms. Elliot’s symptoms included
“blunt, flat, or inappropriate affect”; “emotional withdrawal or isolation”; and “severe panic
attacks”). In all, the Court agrees with Ms. Elliot that the ALJ’s rationale for assigning little
weight to Ms. Humes’ opinions is erroneous and not supported by the record.
Ms. Elliot also argues that the ALJ erred in her decision to assign little weight to Dr.
Alfred Borrow, who conducted a psychological evaluation of Ms. Elliot on July 29, 2010. Dr.
Borrow concluded that Ms. Elliot
presents symptoms consistent with what appears to be a recurrent major
depressive disorder which is severe and without psychotic features. . . .
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Concentration appears to be significantly affected, as does her focus and ability to
process information quickly. . . . Computational ability appears to be significantly
affected, while formal judgment appears to be relatively adequate, along with
comprehension. . . . it would appear that Ms. Elliot may have some difficulty
managing her funds independently and, as a result, be in need of supervision in
this area.
Id. at 806. The ALJ gave this opinion “little weight in that he only saw the claimant during a
one-time consultation and appeared to give significant weight to the claimant’s reported
symptoms over the objective medical findings.” Id. at 40. While the ALJ assigned little weight
to Dr. Borrow’s opinion because he only saw Ms. Elliot one time, she also assigned little weight
to Ms. Humes’ opinions, despite the fact that Ms. Elliot saw Ms. Humes on a fairly regular
basis—biweekly—since September 2009. Further, while Dr. Borrow’s conclusions contain
some subjective reports given by Ms. Elliot, the relevant portion cited above is not based on Ms.
Elliot’s subjective reports, but rather, based on Dr. Borrow’s examination and own observations.
Once again, the Court finds the ALJ’s reasoning for assigning little weight to this opinion
erroneous.
Finally, Ms. Elliot argues that the ALJ erred in rejecting Dr. Joseph A. Pressner’s
conclusion that she was moderately limited in her “ability to accept instructions and respond
appropriately to criticism from supervisors.” Id. at 810. The ALJ disagreed with this, and in her
RFC assessment, noted that Ms. Elliot “has the capacity to appropriately interact with
supervisors[.]” Id. at 33. As explained more fully below, the record supports Dr. Pressner’s
findings that Ms. Elliot experiences difficulties interacting with supervisors, especially when
receiving criticism. On remand, the ALJ should reconsider her mental RFC assessment with
regard to Ms. Elliot’s ability to interact with supervisors in light of Dr. Pressner’s finding, which
is supported by other evidence in the record.

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In all, the Court agrees that the ALJ in this instance did not provide sufficient justification
for assigning little weight to these opinions. The ALJ fully or partially rejected every opinion in
the record and as a result crafted a mental RFC assessment that is not supported by the record.
This requires remand.
2. Physical RFC
Ms. Elliot argues that her physical RFC is not supported by substantial evidence in the
record because the ALJ failed to assess any limitations that account for her seizures. With regard
to her seizure disorder, the ALJ noted:
While I note that the record reflects that the claimant has a seizure disorder, the
claimant’s seizures do not appear to occur with a disabling frequency. While the
claimant testified at hearing that she experiences 5-10 seizures a month, she also
noted that she had never experienced any seizures in the past while at work. She
also testified that she has gone as long as three months without experiencing a
seizure and had her last seizure in July 2011. Therefore, while the claimant has a
severe seizure impairment, the record shows that the claimant’s symptoms are
generally well controlled when she is properly taking her medications.
Id. at 35-36. In his physical RFC assessment conducted in August 2010, Dr. J. Sands, a state
agency doctor, noted that Ms. Elliot should “avoid all exposure” to “hazards (machinery, heights,
etc.).” Id. at 831. The ALJ, however, did not mention that notation and gave no restrictions for
Ms. Elliot’s seizure disorder in her RFC assessment or in the hypothetical given to the VE.
The Commissioner argues that the ALJ provided sufficient justification for why Ms.
Elliot’s seizure disorder is not a disabling as she alleges. She states that while the ALJ found
that her seizure disorder was well controlled, “the ALJ did not state that Plaintiff experienced no
seizures when taking her medications.” Response at 22. While true, this is precisely the
problem. The record supports the fact that Ms. Elliot has a seizure disorder. There is a risk that
even if Ms. Elliot takes her mediations as prescribed she will have a seizure—which is precisely

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why Dr. Sands noted that Ms. Elliot should avoid all exposure to hazards. Stating that Ms.
Elliot’s seizures are “well controlled” does not mean that the risk of having one is zero.
Further, while the Commissioner argues that “[n]othing in the Dictionary of
Occupational Titles (DOT) descriptions for these jobs [described by the VE] indicate that the
tools and machines used are necessarily hazardous,” Response at 23, this is not for the
Commissioner to determine. Rather, a specific finding needs to be made by a VE regarding
whether any of the three jobs identified would require Ms. Elliot to be exposed to any hazards.
See Young v. Barnhart, 362 F.3d 995, 1005 (7th Cir. 2004) (“When the hypothetical question is
fundamentally flawed because it . . . does not include all of the limitations supported by medical
evidence in the record, the decision of the ALJ that a claimant can adjust to other work in the
economy cannot stand.”). On remand, the ALJ should include the limitation of avoiding all
exposure to hazards in her hypothetical given to the VE.
B. Ms. Elliot’s Testimony
Ms. Elliot next argues that the ALJ improperly dismissed her own testimony in
discrediting her credibility. Ms. Elliot first takes issue with the ALJ’s consideration of her daily
activities. The ALJ noted that
[t]he claimant has described daily activities which are not limited to the extent
one would expect, given the complaints of disabling symptoms and limitations.
Despite her impairments, the claimant has engaged in a somewhat normal level of
daily activity and interaction. The claimant admitted activities of daily living
including taking care of her seven-year-old daughter, preparing meals on a daily
basis, doing household chores, driving a car, going to the grocery store, managing
money, talking on the telephone, and helping her daughter with homework. Some
of the physical and mental abilities and social interactions required in order to
perform these activities are the same as those necessary for obtaining and
maintaining employment. I find the claimant’s ability to participate in such
activities diminishes the credibility of the claimant’s allegations of functional
limitations.

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R. at 38. The Court agrees with Ms. Elliot that this description is inaccurate and unsupported by
the record. For instance, Ms. Elliot testified that she lives with her grandmother and that her
sister picks up her daughter when she is too depressed to leave the house; in other words, she has
help in caring for her daughter. See id. at 69-71. While the ALJ noted that Ms. Elliot prepares
meals on a daily basis, these meals consist only of frozen dinners as opposed to the full-course
meals she used to be able to prepare. Id. at 217. Ms. Elliot does go grocery shopping, but she
only goes once a month and stated, “I hurry up and get in there and get what I need and get out.”
Id at 72. She does perform various household chores when she feels like she is able, which is
only two or three times a week. Id. at 70. With regard to managing her money, Ms. Elliot can
pay her bills and count change, but she cannot handle a savings account, use a checkbook, or use
a money order. Id. at 218. Finally, while the ALJ noted that Ms. Elliot uses the telephone for
communication purposes, this is because she experiences panic attacks when she is around other
people. Id. at 219.
The ALJ failed to give a thorough and accurate description of Ms. Elliot’s testimony and
functional report, which is actually much more restrictive than what is contained in the ALJ’s
decision. Most glaring is the ALJ’s omission of Ms. Elliot’s own testimony that there are times
when she is too depressed to even leave the house. Id. at 71; see also id. at 217 (“[T]here are
times I don’t even feel like getting out of bed.”). Certainly, on those days, which were still
occurring at the time of the hearing, Ms. Elliot does not perform any of the above activities. In
sum, the Court believes that the ALJ misconstrued the evidence in the record—it does not reflect
the level of daily activity that the ALJ included in her opinion. On remand, the ALJ shall more
carefully examine Ms. Elliot’s daily activities, paying careful attention to the limitations to
which she testified and described in her functional report.

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Ms. Elliot next argues that the ALJ erred in failing to consider that her gaps in treatment,
missed therapy appointments and, at times, her failure to take her prescription medications are a
result of her psychological symptoms. The ALJ noted that
the record reveals that the claimant cancelled or failed to show up for therapy
sessions on a number of occasions. Furthermore, as detailed above, the record
reflects significant gaps in the claimant’s history of treatment and significant
periods of time since the alleged onset date during which the claimant has not
taken any medications for her allegedly disabling symptoms.
Id. at 38. The Commissioner’s response hits the problem on the head—“[t]he record cited by the
ALJ indicates no such excuse for Plaintiff’s non-compliance.” Response at 25. In other words,
the ALJ ignored those parts of the record that suggested Ms. Elliot’s missed appointments and
gaps in treatment resulted from her psychological symptoms. For instance, Ms. Humes noted in
July 2010, that Ms. Elliot “misses some appts because she cannot leave the house. Interaction is
difficult for her.” R. at 784.4 While the record does not always contain this notation in
conjunction with the documentation of missed appointments, see, e.g., id. at 1120, the ALJ was
required to consider the possibility that Ms. Elliot’s symptoms caused some of these
inconsistencies. See Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Although a history of
sporadic treatment or the failure to follow a treatment plan can undermine a claimant’s
credibility, an ALJ must first explore the claimant’s reasons for the lack of medical care before
drawing a negative inference.”).

4

The Commissioner responds to this statement by noting that Ms. Humes’ notation “did
not specifically mention that [her missed appointments were] due to depression or anxiety.” R. at
25. It is unclear to the Court what else besides her depression and/or anxiety would cause Ms.
Elliot to not leave the house, as the record is replete with documentation that her depression,
anxiety, and panic attacks prevent her from leaving the house and interacting with others.
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Further, the Commissioner’s argument that “[t]he ALJ’s notation regarding noncompliance is connected with her finding that Plaintiff’s symptoms improved when she attended
therapy and took her medications,” Response at 25, misses the mark. Ms. Elliot does not dispute
that she functions better when she receives regular treatment and/or takes her medication as
instructed; she argues that the ALJ inappropriately discounted her credibility because of her
inconsistent treatment without first examining if there were “good reasons” for doing so. See
SSR 96-7p (“The adjudicator may need to recontact the individual or question the individual at
the administrative proceeding in order to determine whether there are good reasons the
individual does not seek medical treatment or does not pursue treatment in a consistent manner.).
This requires remand.
Finally, Ms. Elliot argues that the ALJ rejected her own testimony regarding her past
employment. With regard to her employment, the ALJ noted:
Records from her most recent employer in July 2009 show that the claimant had
good attendance. There was no record of an inability to perform tasks or inability
to concentrate. While working there the claimant did not need special
consideration or frequent breaks. According to her former employer, the claimant
had no problem understanding and carrying out simple instructions and had above
average performance evaluations. Additionally, she had no problems working in
close proximity to others or getting along with her co-workers and supervisors,
although she did not like when her supervisors assigned her additional duties. By
all indications, the claimant was performing adequately and only walked off the
job in July 2009 after being reprimanded by her supervisor. This suggests that the
claimant stopped working due to this incident rather than reasons related to her
allegedly disabling impairments.
R. at 38-39 (emphasis added). The ALJ’s conclusion that Ms. Elliot stopped working for reasons
other than her impairments is not fully supported by the record. Ms. Elliot testified that she
would get panic attacks and become anxious and nervous when her supervisor would come close
to her. Id. at 58. She also testified that when her supervisor criticized her in July 2009, she “got
real upset and started crying and just walked out.” Id. at 61. This testimony suggests that Ms.
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Elliot experiences difficulties with supervisors, especially when she is receiving critical
feedback. Moreover, Dr. Pressner and Ms. Humes made the same finding. See id. at 811, 1122.
On remand, the ALJ should consider this testimony, which is supported by the record, and
determine if this changes her mental RFC assessment with regard to how Ms. Elliot can interact
with supervisors.
C. The ALJ’s Step Five Determination
Finally, Ms. Elliot argues that the ALJ erred at Step Five because she gave an incomplete
hypothetical to the VE at the hearing. Specifically, she argues that the ALJ failed to account for
her deficiencies in social functioning and concentration, persistence or pace. See O’ConnorSpinner v. Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010) (“[F]or most cases, the ALJ should refer
expressly to limitations on concentration, persistence and pace in the hypothetical in order to
focus the VE’s attention on these limitations and assure reviewing courts that the VE’s testimony
constitutes substantial evidence of the jobs a claimant can do.”) (emphasis added). The problem
with Ms. Elliot’s argument is that the ALJ found that she had moderate difficulties with
concentration, persistence, and pace in evaluating whether she met the requirements of paragraph
B at Step Three, not in assessing her RFC. See SSR 96-8p (“The adjudicator must remember that
the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are not an RFC
assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process.”).5 This is distinguishable from O’Conner-Spinner, in which
“[t]he state examiner’s RFC determination explicitly noted that there were at least moderate

5

The ALJ also expressly noted this in her decision. See R. at 33 (“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.”).
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limitations here, and the ALJ agreed with that determination.” O’Connor-Spinner, 627 F.3d at
620.
The ALJ posited, in part, this hypothetical to the VE: “The individual has the capacity to
understand, remember, and carry out simple, routine tasks.” R. at 77-78. This is consistent with
Ms. Elliot’s mental RFC that was conducted by Dr. Pressner in August 2010. Dr. Pressner noted
that “[t]he evidence suggests that the clmt can understand, remember, and carry-out simple
tasks.” Id. at 811. While the ALJ gave little weight to his paragraph B findings, she did agree
with this statement. The ALJ’s hypothetical, therefore, was consistent with her findings
regarding Ms. Elliot’s concentration, persistence, and pace.
The Court notes, however, that given the findings above, Ms. Elliot’s mental RFC will
likely change on remand. Therefore, while the current RFC and hypothetical account for the
limitations the ALJ found in Ms. Elliot’s concentration, persistence, and pace, on remand if the
ALJ crafts a more restrictive mental RFC, she may need to include specific limitations in
concentration, persistence, and pace in the hypothetical given to the VE.
VI.

CONCLUSION

As set forth above, the ALJ in this case erred in assessing both a mental and physical
RFC that is not supported by the record. Further, the ALJ’s credibility determination of Ms.
Elliot is unsupported by the record. The decision of the Commissioner is therefore REVERSED
AND REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 03/17/2014
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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