Ferguson v. Colvin

Filing 20

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits be REVERSED and REMANDED to the Commissioner for further proceedings consistent with this Memorandum and Order. An appropriate Order of Remand shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 9/15/16. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL D. FERGUSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15CV1482 RLW

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. '§ 405(g) and 1383(c)(3) for judicial review of
Defendant’s final decision denying Plaintiff=s applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act and for Supplemental Security Income (“SSI”)
under Title XVI of the Act. For the reasons set forth below, the Court reverses the decision of
the Commissioner and remands for further proceedings.
I. Procedural History
On May 20, 2011, Plaintiff filed an application for DIB alleging disability beginning
November 1, 2009. 1 (Tr. 22, 139-42) He protectively filed an application for SSI on March 31,
2011. (Tr. 22, 657-61) Plaintiff alleged that he became unable to work due to seizures. (Tr.
103) The applications were denied, and Plaintiff filed a request for a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 116, 123-27, 651-54) Plaintiff later withdrew his
request for a hearing and asked that the Disability Determinations Service reconsider his
application in light of new evidence. (Tr. 48, 117-20, 650) Upon reconsideration, Plaintiff’s
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In the decision, the ALJ noted that Plaintiff had filed multiple applications with two
different alleged onset dates, October 1, 2007 and November 1, 2009. Giving the Plaintiff the
benefit of the doubt, the ALJ used the earlier alleged onset date of October 1, 2007. (Tr. 22)

applications were again denied, and he filed another request for a hearing by an ALJ. (Tr. 48,
101-06, 638-46) On October 23, 2013 and June 3, 2014, Plaintiff testified at hearings before the
ALJ. (Tr. 664-704) On August 20, 2014, the ALJ determined that Plaintiff had not been under a
disability from October 1, 2007, through the date of the decision. (Tr. 22-36) Plaintiff then filed
a request for review, and on September 18, 2015, the Appeals Council denied Plaintiff’s request
after considering additional evidence. (Tr. 3-6) Thus, the decision of the ALJ stands as the final
decision of the Commissioner.
II. Evidence Before the ALJ
At the October 23, 2013 hearing, Plaintiff was represented by counsel. At the outset, the
ALJ and counsel agreed that Plaintiff’s alleged onset date was October 1, 2007, with a last
insured date of March 31, 2010. Plaintiff’s attorney stated that Plaintiff had a seizure condition
which met the seizure listing and that Plaintiff’s seizures continued to occur despite medication
compliance. In addition, counsel stated that Plaintiff had a dramatic decline in his intellectual
capacity. The ALJ planned to order a psychological consultative exam with an IQ test and other
testing. (Tr. 666-74)
Upon questioning by the ALJ, Plaintiff testified that he was 53 years old. He had a
driver’s license and could drive, but his doctor told him not to drive. Plaintiff had a high school
diploma but did not attend college. He last worked about five years ago, helping his brother-inlaw do some things around his property. Plaintiff’s employment history included work as a
plaster contractor for 25 years. He first worked for his uncle’s plaster company and then went
into business on his own for about 10 years. Plaintiff stopped working as a major plaster finisher
about four or five years ago and sold most of his equipment. (Tr. 677-80)

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Plaintiff saw Dr. Conti and Dr. Renfert. He took Dilantin for seizures and Divalproex for
depression. Plaintiff took his medication as prescribed and stated that the medication helped.
Side effects included constant headaches and hair loss. Plaintiff testified that he experienced
seizures every day. He lived with his wife. Plaintiff tried to stay busy around the house by
performing household chores such as vacuuming. He could pull weeds in the yard. Plaintiff
enjoyed reading Sports Illustrated magazine and the newspaper. He needed glasses to read. (Tr.
680-83)
Plaintiff’s attorney also questioned him. Plaintiff stated that he had trouble
understanding and remembering articles he read. In addition, he needed reminders from his wife
and daughters to groom himself. His wife became ill six months ago, and his daughter moved in
to care for both parents. Plaintiff further stated that when his wife began chemotherapy
treatment, they had to get rid of their dog because he was unable to care for the dog. Plaintiff
stated that he could not remember to let the dog out or feed the dog. He could not remember
appointments or tasks, and he testified that his daughter attended appointments and meetings
with him. Other people helped him remember things. Plaintiff testified that he could not make a
fist with his right hand because he burned it years ago. He could not remember which year, but
he recalled that he had a seizure during the incident. Plaintiff took medication for depression,
which began about three or four years ago. With regard to his seizures, Plaintiff stated that he
experienced large and small seizures. He lost consciousness with the large seizures, which lasted
around 15 to 20 minutes. He had these large seizures at least a couple times a week. (Tr. 68387)
At the second hearing held on June 3, 2014, Plaintiff’s attorney submitted new evidence.
The ALJ then questioned a vocational expert (“VE”), Tracy Young. The VE testified that

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Plaintiff previously worked as a plasterer, which was classified as a medium skilled job.
However, the job was heavy to very heavy, as performed by Plaintiff. In addition, he worked as
a construction laborer, which was a very heavy, unskilled job. The ALJ discussed the
psychological evaluation, noting that Plaintiff’s seizures produced psychological consequences
and a decrease in his IQ. However, the evidence did not indicate whether the psychological
deficits occurred prior to the date last insured. (Tr. 694-98)
The ALJ then asked the VE to assume an individual of Plaintiff’s age, education, and
work experience. The person could perform at the light exertional level but could have no
exposure to hazards, such as unprotected heights and moving mechanical parts. In addition, the
person could never climb ladders or scaffolds, and he could not operate a motorized vehicle.
Further, the individual was limited to understanding, remembering, and carrying out simple
instructions. He retained the ability to make judgment on simple, work-related decisions but was
unable to understand and remember complex instructions or make judgment on complex workrelated decisions. Further, the person could only tolerate occasional change in the work setting.
Given this hypothetical question, the VE stated that the person would not be able to perform any
of Plaintiff’s past work. However, the individual could work as a cafeteria worker, fountain
server, or collator operator. (Tr. 698-99)
For the next hypothetical, the ALJ asked the VE to assume all of the limitations in the
first hypothetical, with the additional limitation that the person’s performance would be about 20
percent slower than a normal person’s performance. In light of this limitation, the VE testified
that the person would not be able to perform the previously mentioned jobs. Further, the
individual would be unable to perform any competitive employment. In addition, Plaintiff’s
counsel asked the VE to also assume an individual that could reach, handle and finger with one

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hand on an unlimited basis, but could only use the other hand rarely. The VE stated that the
person could not perform any jobs the VE mentioned. The VE further testified that if twice a
week the person experienced unscheduled, 30-minute long breaks, during which time he had a
staring spell, the individual would be unable to perform any of those occupations. (Tr. 699-703)
Plaintiff’s wife completed a Function Report – Adult dated November 16, 2011, on
behalf of Plaintiff. In the report, Plaintiff stated that a typical day included his wife giving him
medication and making breakfast. Plaintiff then watched TV, read, played with the dog, and
waited for his wife to return home to make lunch. In the afternoon, he waited for her to come
home and make dinner, and he took his medication and watched TV before bed. Plaintiff
showered while his wife was home. Plaintiff could no longer cook for himself because he had a
seizure and burned his hand while cooking. He needed reminders to care for himself. In
addition, his wife gave him medication twice a day because he was unable to remember to take
it. Plaintiff did not cook due to seizures. He was able to fold laundry but had to be reminded to
stay on task. He went outside several times a week. Plaintiff was unable to drive or go out alone
due to seizures. Due to poor memory, Plaintiff could not handle money. Plaintiff explained that
his memory had decreased since his seizures increased. He stated that he enjoyed watching
sports and reading. He did not spend time with others because he feared having a seizure in
public. He also became angry very easily. Plaintiff reported that his conditions affected his
memory, ability to complete tasks, concentration, use of hands, and ability to get along with
others. His dominant hand was burnt and weak. Plaintiff estimated that he could pay attention
for 5 minutes and was unable to finish what he started. He could follow written instructions
okay, but he had difficulty remembering spoken instructions. Plaintiff did not get along well
with others, including bosses. Stress seemed to increase his seizures. (Tr. 183-90) Plaintiff had

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previously completed a Function Report – Adult in June of 2011, which his wife and daughter
filled out. The form was essentially the same as the one Plaintiff completed 5 months later. (Tr.
194-201)
III. Medical Evidence
The relevant medical evidence that applies to Plaintiff’s appeal is the consultative
psychological evaluation and Medical Source Statement – Mental (“MSS-Mental”) by Karen
Hampton, Ph.D., licensed psychologist. On December 17, 2013, Dr. Hampton evaluated
Plaintiff on behalf of Disability Determinations. She observed that Plaintiff had adequate
hygiene and wore a glove on his right hand to reduce pain associated with a burn injury. Dr.
Hampton noted no overt seizure activity or specific motor abnormalities. Plaintiff was a
moderately reliable informant. Dr. Hampton administered the Wechsler Adult Intelligence Scale
– 4th edition (“WAIS-IV”), the Wide Range Achievement Test – 4th edition (“WRAT-4”), and
the Comprehensive Trail Making Test (“CTMT”). Plaintiff’s wife informed Dr. Hampton that
Plaintiff took Dilantin and Depakote for convulsions and Zoloft for depression. Plaintiff needed
phone alarms to remember to take his medications. Plaintiff discussed his history of seizures and
the anxiety and depression associated with his condition. (Tr. 528-30)
The Mental Status Exam demonstrated that Plaintiff was oriented throughout the
evaluation without visible signs of seizure activity. The evaluation lasted three hours. Plaintiff
was cooperative and exhibited motivated effort with some mild anxiety and typical range in
affect. Dr. Hampton noted no overt or admitted signs of psychotic thought process. Plaintiff’s
short term recall for 3 words after a 5-minute delay was intact for 1 out of 3 words. After a
second practice trial and a brief delay, he could accurately recall 2 out of 3 words. Immediate
auditory recall was poor for an adult, as he could recall up to only 4 digits forward and 3 digits

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backward. He struggled on lowest-to-highest re-sequencing and could only recall 3 in lowest-tohighest order. Plaintiff made errors in substituting numbers for the blanks in his recall. Plaintiff
correctly recalled the date and the examiner’s first, but not last, name. Plaintiff recalled his
birthday and social security number, but at a hesitant pace. He was incorrect in mental math
calculations for 1 and 2 step monetary math problems. Dr. Hampton further observed that
Plaintiff’s fund of information for historical information and current events was poor. Plaintiff
was overly general when asked to describe what a named historical figure was famous for, and
he had little or no recall when asked other long-term informational recall questions. Dr.
Hampton noted that Plaintiff’s judgment in safety situations and social reasoning was intact.
However, he was unable to describe associations between concrete objects and abstract ideas.
His level of insight was fair. (Tr. 530-32)
With regard to the WAIS-IV test, Dr. Hampton observed that Plaintiff showed decreased
Verbal Comprehension abilities with lower than average subtest scores. Plaintiff demonstrated
somewhat higher subtest scaled cores on non-verbal Perceptual Reasoning subtests that were in
the low-average on Matrix Reasoning and average on Visual Puzzles. The Block Design subtest
was the lowest of the Perceptual Reasoning subtests. In addition, Dr. Hampton noted that
Plaintiff worked at a slower than average speed on timed Processing Speed subtests. Plaintiff
could perform some mental addition and subtraction items correctly, but he could not think
through 2-column subtraction or calculate harder multi-step math problems. Dr. Hampton
opined that Plaintiff functioned in the low-average to borderline ranges of intellectual
functioning. He had stronger non-verbal perceptual reasoning abilities but reduced abilities in
other areas. His composite full IQ score was a 75, placing him in the 5th percentile. (Tr. 532-33,
535)

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On the WRAT-4 test, Plaintiff was in the low-average range for Word Reading, Sentence
Comprehension, and Math Computation. Dr. Hampton noted that Plaintiff’s overall academic
abilities were in the low-average range for Plaintiff’s age and could be a decrease in cognitive
functioning attributable to recurrent seizure activity. With regard to the CTMT, which tested
divided attention and speed of cognitive processing, Plaintiff’s speeds were fairly slow at and
below the 10th percentile. His overall composite index speed was only in the 2nd percentile.
(Tr. 533-34)
Dr. Hampton assessed depressive condition due to medical condition; borderline
intellectual functioning; seizure disorder; and Global Assessment of Functioning (“GAF”) score
of 58. Dr. Hampton noted that Plaintiff’s seizure disorder was not well-controlled, as he
experienced breakthrough seizures despite anti-convulsant medications. She opined that Plaintiff
was mildly impaired in his ability to understand and recall simple instructions; markedly
impaired in his ability to understand and follow through with complex directions; moderately
impaired in concentration; and markedly slow in pace as compared to other similar-age adults.
His ability to adapt to social situations and work-like settings was relatively intact. However, he
had a risk of decompensation in an increased stressful condition. Dr. Hampton did not believe
that Plaintiff was capable of managing funds independently. (Tr. 534)
In the MSS-Mental, Dr. Hampton found mild restrictions in Plaintiff’s ability to
understand and remember simple instructions and to carry out simple instructions. She opined
that Plaintiff was moderately impaired in his ability to make judgments on simple, work-related
decisions. Dr. Hampton assessed marked restrictions in Plaintiff’s ability to understand and
remember complex instructions; carry out complex instructions; and make judgments on
complex, work-related decisions. With regard to interaction with others, Dr. Hampton opined

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that Plaintiff had mild restrictions in his ability to interact appropriately with the public,
supervisors, and co-workers. He had moderate restrictions with regard to his ability to respond
appropriately to usual work situations and changes in a routine work setting. Additionally, Dr.
Hampton stated that Plaintiff’s concentration was moderately impaired, and his pace was
significantly impaired. Dr. Hampton cited to her full report for the factors supporting her
assessment. She did not know when the limitations were first present. (Tr. 536-38)
IV. The ALJ’s Determination
In a decision dated August 20, 2014, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through March 31, 2010. He had not engaged in
substantial gainful activity since October 1, 2007, the alleged onset date. The ALJ further found
that Plaintiff had the severe impairments of a seizure disorder with headaches; borderline
intellectual functioning; and depression. However, he did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22-25)
After carefully considering the entire record, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform light work, except he could never climb ropes,
ladders, or scaffolds; never be exposed to hazards such as unprotected heights or moving
mechanical parts; and never operate a motorized vehicle. The ALJ further found that Plaintiff
could only understand, carry out, and remember simple instructions. He could make judgments
on simple, work-related decisions but could not remember complex work instructions or make
complex work-related decisions. Plaintiff could tolerate only occasional change in the work
setting. (Tr. 28-35)

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The ALJ determined that Plaintiff was unable to perform any past relevant work.
However, in light of his younger age on the alleged onset date, high school education, work
experience, and RFC, the ALJ found that jobs existed in significant numbers in the national
economy which Plaintiff could perform. Such jobs included cafeteria attendant, fountain server,
and collator operator. Therefore, the ALJ concluded that Plaintiff had not been under a disability
from October 1, 2007 through the date of the decision. (Tr. 35-36)
V. Legal Standards
A claimant for social security disability benefits must demonstrate that he or she suffers
from a physical or mental disability. The Social Security Act defines disability “as the inability
to do any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(a)(4). Those steps require a claimant to show: (1)
that claimant is not engaged in substantial gainful activity; (2) that he has a severe physical or
mental impairment or combination of impairments which meets the duration requirement; or (3)
he has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1; (4) he is unable to return to his past relevant work; and (5) his
impairments prevent him from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence.
42 U.S.C. § 405(g). “Substantial evidence means less than a preponderance, but sufficient
evidence that a reasonable person would find adequate to support the decision.” Hulsey v.
Astrue, 622 F.3d 917, 922 (8th Cir. 2010). “We will not disturb the denial of benefits so long as

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the ALJ’s decision falls within the available zone of choice. An ALJ’s decision is not outside the
zone of choice simply because we might have reached a different conclusion had we been the
initial finder of fact.” Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (citations and internal
quotations omitted). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner’s decision if it is supported by substantial
evidence. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court must review the administrative record as a whole and consider: (1) the
credibility findings made by the ALJ; (2) the plaintiff’s vocational factors; (3) the medical
evidence from treating and consulting physicians; (4) the plaintiff’s subjective complaints
regarding exertional and non-exertional activities and impairments; (5) any corroboration by
third parties of the plaintiff’s impairments; and (6) the testimony of vocational experts when
required which is based upon a proper hypothetical question that sets forth the plaintiff’s
impairment. Johnson v. Chater, 108 F.3d 942, 944 (8th Cir. 1997) (citations and internal
quotations omitted).
The ALJ may discount a plaintiff’s subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and
set forth the inconsistencies in the record. Marciniak v. Shalala, 49 F.3d 1350, 1354 (8th Cir.
1995). It is not enough that the record contain inconsistencies; the ALJ must specifically
demonstrate that she considered all the evidence. Id.
When a plaintiff claims that the ALJ failed to properly consider subjective complaints,
the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to

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plaintiff’s complaints under the Polaski 2 factors and whether the evidence so contradicts
plaintiff’s subjective complaints that the ALJ could discount the testimony as not credible.
Blakeman v. Astrue, 509 F.3d 878, 879 (8th Cir. 2007) (citation omitted). If inconsistencies in
the record and a lack of supporting medical evidence support the ALJ’s decision, the Court will
not reverse the decision simply because some evidence may support the opposite conclusion.
Marciniak, 49 F.3d at 1354.
VI. Discussion
Plaintiff argues that the ALJ erred by failing to include in the RFC a limitation reflecting
Plaintiff’s deficit in pace. Plaintiff contends that the ALJ did not properly account for Plaintiff’s
deficits in pace with specificity. In addition, Plaintiff asserts that the ALJ relied on the wrong
hypothetical question in determining that Plaintiff was capable of performing unskilled work.
Defendant argues that the ALJ properly accounted for Plaintiff’s limitation in pace when
assessing Plaintiff’s RFC and that the ALJ’s RFC finding was supported by substantial evidence
and properly incorporated into the hypothetical question posed to the VE.
Plaintiff claims that, although the ALJ found that Plaintiff had a marked impairment with
regard to concentration, persistence, or pace, the ALJ failed to specifically account for the
concrete functional mental impairment consequences of Plaintiff’s deficit in pace when
determining Plaintiff’s RFC and when presenting the hypothetical questions to the VE.

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The Eight Circuit Court of Appeals “has long required an ALJ to consider the following
factors when evaluating a claimant’s credibility: ‘(1) the claimant's daily activities; (2) the
duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant's work history; and (7) the absence of objective medical evidence to support the
claimant's complaints.’” Buckner, 646 F.3d at 558 (quoting Moore v. Astrue, 572 F.3d 520, 524
(8th Cir. 2009) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
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Defendant responds that the ALJ did not fail to consider Plaintiff’s deficit in pace because the
ALJ found Plaintiff could perform unskilled work, which accounts for this limitation.
Residual Functional Capacity is a medical question, and the ALJ’s assessment must be
supported by substantial evidence. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001)
(citations omitted). RFC is defined as the most that a claimant can still do in a work setting
despite that claimant’s limitations. 20 C.F.R. § 416.945(a)(1). “Ordinarily, RFC is the
individual's maximum remaining ability to do sustained work activities in an ordinary work
setting on a regular and continuing basis, and the RFC assessment must include a discussion of
the individual’s abilities on that basis. A ‘regular and continuing basis’ means 8 hours a day, for
5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *2 (Soc. Sec.
Admin. July 2, 1996) (emphasis present).
The ALJ has the responsibility of determining a claimant’s RFC “‘based on all the
relevant evidence, including medical records, observations of treating physicians and others, and
[claimant’s] own description of [his] limitations.’” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (quoting Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)). “An ‘RFC assessment
must include a narrative discussion describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).’” Sieveking v. Astrue, No. 4:07 CV 986 DDN, 2008 WL 4151674, at *9 (E.D.
Mo. Sept. 2, 2008) (quoting SSR 96-8p, 1996 WL 374184, at *7 (Soc. Sec. Admin. July 2,
1996)).
The Court finds, based upon the entire record, the ALJ did not properly account for
Plaintiff’s pace deficits in determining his RFC. While the ALJ determined that Plaintiff had
marked limitations in concentration, persistence, and pace, the ALJ concluded that Plaintiff

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could perform unskilled light work that required repetitive pace. (Tr. 35-36, 700-01) In the
decision, the ALJ gave Dr. Hampton’s opinion great weight. However, while Dr. Hampton did
not indicate that Plaintiff’s borderline intellectual functioning was completely disabling, she
noted that his pace was markedly slow compared to other similar-age adults and that he was
significantly impaired in pace. (Tr. 534, 537) The ALJ did not explicitly address Plaintiff’s
marked impairment in pace when determining his RFC.
The jobs identified by the ALJ and the VE as jobs which Plaintiff could perform were
cafeteria attendant, fountain server, and collator operator. All three jobs require the performance
of “repetitive work” or “continuously the same work, according to set procedures, sequence, or
pace.” (Detailed Job Specialty Reports, Pl.’s Exs. 1-3, ECF Nos. 12-1 to 12-3) Courts in this
district have found that a limitation to “simple” tasks is insufficient to accommodate pace
limitations. See, e.g., Cain v. Colvin, No. 4:14 CV 772-DDN, 2015 WL 2092411, at *10 (E.D.
Mo. May 5, 2015) (“[A]n individual, even when performing simple and repetitive jobs, may be
required to have a persistence or pace element.”); Logan-Wilson v. Colvin, No. 4:13-CV-1119JAR, 2014 WL 4681459, at *6 (E.D. Mo. Sept. 19, 2014) (“While the tasks themselves may be
simple and rote, the pace in which Plaintiff is to accomplish them is not accommodated by
limitation [to simple instructions and non-detailed tasks].”). Thus, the Court holds that the ALJ’s
RFC finding is not supported by substantial evidence because he did not consider Plaintiff’s pace
impairment when assessing Plaintiff’s RFC. Logan-Wilson, 2014 WL 468145, at *6.
Likewise, the hypothetical question presented to the VE did not account for Plaintiff’s
marked limitations with regard to pace. “A hypothetical question must precisely describe a
claimant’s impairments so that the vocational expert may accurately assess whether jobs exist for
the claimant.” Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996) (citation omitted).

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Further, “[a]n expert’s testimony based upon an insufficient hypothetical question may not
constitute substantial evidence to support a finding of no disability.” Id. at 695 (citation
omitted). Here, the hypothetical question posed to the VE did not include Plaintiff’s pace
limitation. Therefore, the Court will remand the case for the ALJ to consider Plaintiff’s marked
limitations in pace in determining Plaintiff’s RFC and to submit a hypothetical to the VE that
includes Plaintiff’s “deficiencies of concentration, persistence, or pace so that the vocational
expert might accurately determine his ability to work.” Id.; see also Cain, 2015 WL 2092411, at
*11 (remanding the case for further consideration where “the ALJ did not account for all of
plaintiff’s limitations in concentration, persistence and pace in the hypotheticals that she posed to
the VE, such that the VE could not properly determine plaintiff’s ability to work in jobs available
in the economy); Logan-Wilson, 2014 WL 468145, at *6 (remanding with directions that the ALJ
re-evaluate the RFC with regard to Plaintiff’s pace limitation).
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying social
security benefits be REVERSED and REMANDED to the Commissioner for further
proceedings consistent with this Memorandum and Order. An appropriate Order of Remand
shall accompany this Memorandum and Order.
Dated this 15th day of September, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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