Filed: Jun. 18, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-18-2004 Ramirez v. Comm Social Security Precedential or Non-Precedential: Precedential Docket No. 03-3313 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Ramirez v. Comm Social Security" (2004). 2004 Decisions. Paper 545. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/545 This decision is brought to you for free and open access by t
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 6-18-2004 Ramirez v. Comm Social Security Precedential or Non-Precedential: Precedential Docket No. 03-3313 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Ramirez v. Comm Social Security" (2004). 2004 Decisions. Paper 545. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/545 This decision is brought to you for free and open access by th..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-18-2004
Ramirez v. Comm Social Security
Precedential or Non-Precedential: Precedential
Docket No. 03-3313
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Ramirez v. Comm Social Security" (2004). 2004 Decisions. Paper 545.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/545
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PRECEDENTIAL Thomas D. Sutton (argued)
Leventhal & Sutton
UNITED STATES COURT OF One Oxford Valley
APPEALS FOR THE THIRD CIRCUIT Suite 317
__________ Langhorne, PA 19047
No. 03-3313 Attorney for Appellant
__________
David F. Chermol (argued)
Social Security Administration
ELIZABETH RAMIREZ OGC/Region III
P.O. Box 41777
Appellant, Philadelphia, PA 19101
v.
Attorney for Appellee
JOANNE B. BARNHART,
Commissioner of Social Security __________
Administration.
OPINION
__________ __________
On Appeal from the United States
Garth, Circuit Judge:
District Court for the
Eastern District of Pennsylvania Elizabeth Ramirez appeals from
(Civil Action No. 02-cv-02696) an Order of the United States District
District Judge: Hon. Eduardo C. Robreno Court for the Eastern District of
__________ Pennsylvania affirming the decision of
the Commissioner of Social Security.
Argued April 20, 2004 The Commissioner had denied Ramirez’s
___________ claims for Supplemental Security Income
(“SSI”) under Title XVI of the Social
Security Act (the “Act”). 42 U.S.C.
Before: SCIRICA, Chief Judge, §§ 1381-1383(f). On appeal, Ramirez
GARTH, and BRIGHT, * Circuit Judges contends, as she did in the District Court,
that the hypothetical question posed by
(Opinion Filed June 18, 2004) the Administrative Law Judge (“ALJ”) to
the vocational expert failed to accurately
convey all of Ramirez’s limitations, and
that the Commissioner’s ensuing
*
Honorable Myron H. Bright, United decision is, therefore, not supported by
States Court of Appeals for the Eighth substantial evidence. The District Court
Circuit, sitting by designation. affirmed the ALJ’s decision and Ramirez
timely appealed to this Court. For the varying degrees of success.
reasons set forth below, we vacate the
In December 1996, Ramirez
District Court’s order and remand for
stopped seeing Dr. Park. She did not
further proceedings before the ALJ.
resume mental health treatment until
I. September 1998. At the request of her
attorney, however, she underwent a
A. Early Procedural History
comprehensive psychological evaluation
Ramirez is a 47-year-old divorced by Dr. Craig Weiss in April 1997. Dr.
mother of two children with no significant Weiss concluded that Ramirez had an
work experience. In August 1994, she “Anxiety Disorder . . . with significant
applied for disability insurance benefits symptoms of depression, social phobia,
and SSI under the Act, claiming that she o b se ss iv e -c o m pu l s iv e , a n d m o o d
was disabled by asthma, bad nerves and a incongruent hallucinations.”
thyroid condition. Six months later, she (Administrative Record (“A.R.”) at 303.)
began receiving mental health treatment With respect to “functional limitations,”
for an anxiety disorder. Dr. Weiss opined that Ramirez (1) had
moderate restriction in activities of daily
After the Commissioner denied
living, (2) had marked to extreme
Ramirez’s application initially and on
difficulties in m aintain ing so cial
reconsideration, she requested a hearing
functioning, (3) experienced frequent
before an ALJ. At Ramirez’s request, the
deficiencies of concentration, and (4)
ALJ dismissed Ramirez’s claim for
continually experienced episodes of
disability benefits. The ALJ denied
deterioration.
Ramirez’s remaining claim for SSI,
finding that Ramirez was not disabled by Almost two years earlier, in 1995,
her physical or mental impairments. The Dr. Louis Poloni, a state agency
SSA Appeals Council subsequently psychologist, had completed a Psychiatric
vacated the ALJ’s decision and remanded Review Technique Form (“PRTF”) on
with instructions to explain certain which he had also assessed Ramirez’s
findings and take additional evidence on mental impairments in four broad areas of
Ramirez’s mental impairments. mental functioning. Dr. Poloni concluded
that Ramirez: (1) had no restriction in
B. Ramirez’s M ental Health
activities of daily living, (2) had slight
Treatment/Evaluation
diffic ulties in ma intainin g soc ial
Ramirez first sought mental health functioning, (3) often experienced
treatment in February 1995 from Dr. H.H. deficiencies of concentration, persistence,
Park, who diagnosed her with generalized or pace, and (4) never experienced
anxiety disorder with depression. Over the e p i s o d e s o f deterio r a t io n o r
next twenty-two months, Dr. Park decompensation in work-like settings.
prescribed various medications with Based on those findings, Dr. Poloni
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concluded that Ramirez had a severe C. Procedural History After Remand
anxiety disorder, but that Ramirez’s
Following the remand by the SSA
condition did not meet or equal any of the
Appeals Council, the ALJ held a second
mental impairments deemed by the SSA to
hearing. The ALJ considered, among other
be presumptively disabling. Consequently,
things, all of the evidence described above
Dr. Poloni proceeded to complete a Mental
concerning Ramirez’s mental impairments.
Residual Functional Capacity (“MRFC”)
Near the conclusion of the second hearing
form, which is meant to assess a claimant’s
on remand, the ALJ posed the following
ability to perform either the claimant’s
hypothetical question to vocational expert
previous work or other work in the
Julie Stratton:
national economy. Dr. Poloni determined
that Ramirez could perform simple, routine I will begin by asking you to
unskilled work. assume that we’re talking
about an individual of Ms.
Ramirez’s mental functioning was
Ramirez’s age, education
also in 1998 assessed by Dr. Herman
and prior work history. And
Rudnick, a Board certified psychiatrist.
I’d like you to further
Dr. Rudnick concluded that Ramirez
assume that this individual’s
suffered from anxiety-related and
capable of performing a
personality disorders. As to the four broad
range of sedentary work.
areas of mental functioning, Dr. Rudnick
The wor k should be
found that Ramirez (1) had only
pe r f or me d in a we ll
moderately limited daily activities, (2) had
ventilated facility, with no
moderately limited social functioning, (3)
exposure to dust, fumes,
often experienced deficiencies of
pets, animals, chemicals, or
concentration, persistence, or pace, (4) and
temperature extremes. The
did not experience any episodes of
work should provide for
deterioration or decompensation. Like Dr.
occasional breaks, for the
Poloni before him, Dr. Rudnick found that
individual use of an inhaler
Ramirez’s mental impairments did not
or pump. The work should
meet or equal the criteria of a listed
involve simple one to two
impairment. As to Ramirez’s residual
step tasks. The work should
functional capacity, Dr. Rudnick opined
not require the individual
that Ramirez could not perform complex
during the course of
or complicated work and would need to be
performing the work to
able to contact her home from work, but
travel outside of th e
that there was no need to limit Ramirez’s
workplace. And . . . the
interaction with the public or with co-
work setting should provide
workers.
reasonable opportunity for
the individual to make and
-3-
receive personal phone mentioned this particular limitation.
calls. Within the boundaries
Ramirez appealed the ALJ’s
of these limitations, . . . are
decision, but the Appeals Council declined
there jobs in the regional or
to grant review. Ramirez then challenged
national economy that the
the ALJ’s ruling in the United States
individual could perform?
District Court for the District of Eastern
(A.R. at 457-58.) It is significant that Pennsylvania, where Ramirez and the
neither Dr. Weiss’s evaluation nor his Commissioner filed cross-motions for
conclusions found expression in the summary judgment. The District Court
hypothetical. referred the cross-motions to a Magistrate
Judge for a Report and Recommendation.
The purpose of the hypothetical was
to assess Ramirez’s residual functional Although Ramirez made a number
capacity. Stratton responded that, of claims, one of her primary arguments
notwithstanding the limitations contained was that the ALJ had failed to include in
in the hypothetical, there were several jobs her hypothetical the finding she had made
in the local and national economy that the on the PRTF that Ramirez often suffered
hypothetical claimant could perform, deficiencies in concentration, persistence,
including assembler, hand packer, and or pace. The Magistrate Judge rejected all
production inspector. of Ramirez’s arguments except for the
PRTF argument, finding that it was “not
The ALJ then issued a written
clear whether a limitation in concentration,
decision in which she determined that
persistence or pace within the hypothetical
Ramirez was not disabled and therefore
. . . would have changed the vocational
she again denied Ramirez’s application for
expert’s response.” The Magistrate Judge
SSI. In reaching her decision, the ALJ
recommended that the District Court
relied heavily on Stratton’s testimony.
remand to the ALJ to allow for further
The ALJ attached to her written testimony by a vocational expert.
decision a completed PRTF, as she was
The Commissioner objected only to
required to do under the then-existing
the Magistrate Judge’s finding that the
Social Security Regulations. In a section
ALJ’s hypothetical was deficient. The
of the PRTF entitled, “Functional
District Court adopted those portions of
Limitation and Degree of Limitation,” the
the Magistrate’s Report to which no
ALJ noted tha t Ramirez “often”
objection was raised, but disapproved that
experienced “deficiencies o f
portion of the Magistrate Judge’s Report
concentration, persistence, or pace
which found the ALJ’s hypothetical to be
resulting in a failure to complete tasks in a
defective. The District Court explained
timely manner (in work settings or
that “the standards articulated by the Third
elsewhere).” (Appendix at 93.) The
Circuit do not mandate that the ALJ
ALJ’s hypothetical, however, had not
-4-
articulate verbatim to the vocational expert A. Administrative Framework
the findings recorded on the PRTF form”
Under the Act, a person who has a
and proceeded to find that the limitations
“disability” is entitled to SSI payments
the ALJ had included in her hypothetical
from the Social Security Administration
“accurately reflect[ed] the evidence
(“SSA”). The Act defines “disability” as
contained in the record.” (Appendix at 20,
the “inability to engage in any substantial
23.) Accordingly, the District Court
gainful activity by reason of any medically
entered summary judgment for the
determ inable physical or m enta l
Commissioner.
impairment which can be expected to
Ramirez now appeals from the result in death or which has lasted or can
District Court’s Order. Ramirez contends be expected to last for a continuous period
that (a) the ALJ’s hypothetical did not of not less than 12 months.” 42 U.S.C.
adequately incorporate the PRTF finding § 423(d)(1)(A). The definition is
concerning Ramirez’s deficiencies in qualified, however, as follows:
concentration, persistence, or pace; and (b)
An individual shall be
the ALJ improperly made adverse
determined to be under a
credibility findings.
disability only if his physical
II. or mental impairment or
impairment are of such
We have jurisdiction to hear this
severity that he is not only
appeal pursuant to 28 U.S.C. § 1291. We
unable to do his previous
may reverse the District Court’s grant of
work but cannot,
summary judgment to the Commissioner
c o n s i d e r i n g h i s a g e,
only if the ALJ’s findings were not
educ ation, and work
supported by “substantial evidence.”
experience, engage in any
Burns v. Barnhart, 312 F.3d 113, 118 (3d
other kind of substantial
Cir. 2002). If, however, an ALJ poses a
gainful work which exists in
hypothetical question to a vocational
the national economy.
expert that fails to reflect “all of a
claimant’s impairments that are supported 42 U.S.C. § 423(d)(2)(A). A person
by the record[,] . . . it cannot be considered seeking SSI may allege that they have
substantial evidence.” Chrupcala v. disabling physical impairments, mental
Heckler, 829 F.2d 1269, 1276 (3d Cir. impairments, or both.
1987).
Acting pursuant to its rulemaking
III. authority, the SSA has promulgated
regulations establishing a five-step
We consider first Ramirez’s
sequential evaluation process to determine
argument that the ALJ’s hypothetical was
if a claimant has a disability. 20 C.F.R. §
deficient.
404.1520 (2003). At step one, the SSA
-5-
will find that a claimant is not disabled 416.960(c). Unlike some of the earlier
unless he demonstrates that he is not stages in the evaluation process, the
working at a “substantial gainful activity.” burden of proof at step five is on the
20 C.F.R. §§ 404.1520(b), 416.920(b). At agency. Here, Ramirez was found able to
step two, the SSA will find no disability perform other jobs.
unless the claimant shows that he has a
B. Evaluating Mental Impairments
“severe impairment,” defined as “any
impairment or combination of impairments In 1985, the SSA issued revised
which significantly limits [the claimant’s] regulations to evaluate individuals who
physical or mental ability to do basic work claimed to be disabled as a result of a
activities.” 20 C.F.R. §§ 404.1520(c), mental impairment. 20 C.F.R. § 416.920a
416.920(c). If the claimant successfully (1999). The revised regulations
demonstrates that he has a severe implemented a new technique that required
impairment, the SSA determines at step the SSA to evaluate a claimant’s mental
three whether the impairment is on a list of impairments in four broad areas of
impairments presumed severe enough by functioning: (1) activities of daily living,
the SSA to render one disabled; if so, the (2) social functioning, (3) concentration,
claimant qualifies. 20 C.F.R. §§ persistence, or pace, and (4) deterioration
404.1520(d), 416.920(d). If, however, the or decompensation in work or work-like
claimant’s impairment is not on the list, settings. 20 C.F.R. § 416.920a (1999).
the inquiry proceeds to step four and the The third functional area—which is of the
SSA assesses whether the claimant has the most concern in this appeal—was rated on
“residual functional capacity” to perform a five point scale of never, seldom, often,
his previous work. Unless he shows that frequent, and constant. 20 C.F.R. §
he cannot, he is determined not to be 416.920a(b)(3) (1999).
disabled.1 If the claimant survives step
Under the revised regulations, the
four, the fifth step requires the SSA to
adjudicator applied the new technique by
consider “vocation al factors” (the
completing a form known as the
claimant’s age, education, and past work
Psychiatric Review Technique Form
experience) and to determine whether the
(PRTF). 20 C.F.R. § 416.920a(d) (1999).
claimant is capable of performing other
Based on the adjudicator’s findings on the
jobs existing in significant numbers in the
PRTF with respect to these four areas of
national economy. 20 C.F.R. §§
functioning, he would determine at step
404.1520(f), 404.1560(c), 416.920(f),
two of the sequential evaluation process if
the claimant had a “severe mental
impairment.” 20 C.F.R. § 416.920a(c)(1)
1
Residual functional capacity is (1999). If so, the adjudicator would
defined as “what a [claimant] can still do proceed to the third step and determine if
despite his limitations.” 20 C.F.R. § the claimant’s impairment met or equaled
416.945(a).
-6-
one of the impairments found on the list of evaluation process requires
impairments presumed severe enough to a more detailed assessment
render a person disabled. 20 C.F.R. by itemizin g var ious
§ 416.920a(c)(2) (1999). functions contained in the
broad categories found in
In 1996, the SSA issued Social
paragraphs B and C of the
Security Ruling 96-8p “[t]o state the
adult mental disorders
[SSA]’s policies and policy interpretations
listings in 12.00 of the
regarding the assessment of residual
Listing of Impairments, and
functional capacity (RFC) in initial claims
summarized on the PRTF.
for disability benefits under [the Act].”
Ruling 96-8p discussed the PRTF and the SSR 96-8p (July 2, 1996).
role it plays in the five-step analysis:
C. The ALJ’s Hypothetical Did Not
The psychiatric review Adequately Convey Ramirez’s
technique described in 20 Limitations
CFR 404.1520a and
As we have previously noted, the
416.920a and summarized
ALJ who reviewed Ramirez’s application
on the Psychiatric Review
noted on the PRTF that Ramirez “often”
Technique Form (PRTF)
suffers from “deficiencies of
requires adjudicators to
concentration, persistence, or pace
assess an ind ividua l’s
resulting in a failure to complete tasks in a
limitations and restrictions
timely manner (in work settings or
from a mental impairment(s)
elsewhere).” (Appendix at 93.) Ramirez
in categories identified in
argues on appeal that the ALJ erred by not
the “paragraph B” and
including this limitation in the hypothetical
“paragraph C” criteria of the
that she posed to the vocational expert. As
adult mental disorders
we explain below, we agree with Ramirez
listings. The adjudicator
and hold that the hypothetical did not
must remember that the
accurately convey all of Ramirez’s
limitations identified in the
impairments, and the limitations they
“paragraph B” and
cause, and therefore the ALJ’s decision is
“paragraph C” criteria are
not supported by substantial evidence.2
not an RFC assessment but
are used to rate the severity
of mental impairment(s) at 2
The Commissioner frames the issue
steps 2 and 3 of the
on appeal as whether a hypothetical
s e q u e n t ia l e v a l u a t i o n
question to a vocational expert in a
process. The mental RFC
Social Security disability case must
assessment used at steps 4
include a verbatim recitation of the
and 5 of the sequential
findings listed on a Psychiatric Review
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We have not previously decided the claimant argued that the vocational
precise issue of whether certain findings expert’s testimony did not provide
on a PRTF must be included in an ALJ’s substantial evidence because the ALJ’s
hypothetical. We have, however, stated in hypothetical questions regarding the
the clearest of terms that an ALJ’s claimant’s residual functional capacity
hypothetical must include all of a failed to incorporate the claimant’s
claimant’s impairments. For example, in borderline intellectual functioning. The
Chrupcala v. Heckler, 829 F.2d 1269, Commissioner argued there, as it does
1276 (3d Cir. 1987), the claimant argued here, that the ALJ’s use of “simple
that the vocational expert’s opinion was repetitive one, two-step tasks” in the
deficient because it failed to account for hypothetical was sufficiently descriptive to
all of the claimant’s impairments. We encompass the findings concerning the
agreed, noting that the ALJ’s hypothetical claimant’s limited intellectual functioning.
question “did not reflect the fact of We disagreed, however, explaining that
constant and severe pain which [the the reference to simple tasks did not
claimant] testified to and which we have “specifically convey” the claimant’s
explained was supported by objective intellectual limitations and that “greater
medical findings in the record.”
Id. We specificity” was required.
Id. at 123.
explained that “[a] hypothetical question
Although we have not previously
must reflect all of a claimant’s
held whether findings on a PRTF about a
impairments that are supported by the
claimant’s concentration, persistence, or
record; otherwise the question is deficient
pace must be included in an ALJ’s
and the expert’s answer to it cannot be
hypothetical, some of our sister Circuits
considered substantial evidence. Id.
have dealt with this issue. For example, in
(citing Podedworny v. Harris, 745 F.2d
Howard v. Massanari, 255 F.3d 577 (8th
210 (3d Cir. 1984) and Wallace v.
Cir. 2001), the claimant argued on appeal
Secretary, 722 F.2d 1150 (3d Cir. 1983))
that the ALJ had failed to convey in his
(emphasis added).
hypothetical the finding that the claimant
We recently reaffirmed this often suffered from deficiencies in
principle in Burns v. Barnhart, 312 F.3d concentration, persistence, or pace. Id. at
113, 122 (3d Cir. 2002). There, the 581. The ALJ had, however, asked the
vocational expert to assume that the
claimant would be capable of performing
Technique Form (PRTF). However, simple, routine, repetitive tasks. Id. The
Ramirez does not claim that the findings Eighth Circuit Court of Appeals held that
must be included verbatim in the the hypothetical “adequately capture[d]”
hypothetical; rather, Ramirez contends the claimant’s deficiencies, in part because
that all of a claimant’s limitations must the state psychologist who had made the
be adequately conveyed in the finding also prepared a “functional
hypothetical.
-8-
capacity assessment” in which he mentioned that the claimant’s borderline
concluded that the claimant could “sustain intelligence seriously limited, but did not
sufficient concentration and attention to preclude him from , understanding,
perform at least simple, repetitive, and remembering, and carrying out detailed
routine cognitive activity without severe instructions. Id. at 544. On appeal, the
restriction of function.”
Id. at 582. But Seventh Circuit stated that it saw “nothing
see Newton v. Chater,
92 F.3d 688 (8th in the hypothetical that takes into account
Cir. 1996), infra. the ALJ’s own earlier observation . . . that
[the claimant] suffered from frequent
The Sixth Circuit Court of Appeals
deficiencies of concentration, persistence,
reached a similar outcome in Smith v.
or pace.” Id. The court acknowledged
Halter,
307 F.3d 377 (6th Cir. 2001). In
that there might be an explanation for the
Smith, the ALJ also found that the
omission, but it explained that it had “no
claimant often suffered from deficiencies
way of knowing that.” Id. Accordingly, it
in concentration, persistence, or pace. In
remanded the case for further proceedings.
his hypothetical, the ALJ instructed the
vocational expert to assume the claimant In Newton v. Chater, 92 F.3d 688
had mental impairments limiting him to (8th Cir. 1996), the court found that a
jobs that were routine and low stress, and hypothetical was defective because it
did not involve intense interpersonal failed to adequately convey the claimant’s
confrontations, high quotas, unprotected deficiencies in concentration, persistence,
heights, or operation of dangerous or pace. The ALJ’s hypothetical had
machinery.
Id. at 378. On appeal, the described a person with a minimal ability
Sixth Circuit concluded that the ALJ to read and write, a borderline range of
“went beyond” the simple findings intelligence, a ninth or tenth grade
included in the PRTF and determined that education, an inability to perform highly
the claimant’s concentration problems skilled or technical work, a capacity for
were minimal or negligible, and then simple jobs, and a demonstrated ability to
“translated [the claimant’s] condition into control his drinking problem.
Id. at 694.
the only concrete restrictions available to The Commissioner argued that the
him . . . and duly incorporated them into deficiencies of concentration, persistence
his hypothetical . . . .”
Id. at 379. or pace did not have to be included in the
hypothetical because the ALJ had limited
Other Courts of Appeal (or in one
the hypothetical to simple jobs and two
case a different panel of the same Circuit)
medical professionals had testified that the
have been less forgiving. For example, in
c la im a n t ’ s d e f i c ie n c i e s d id n o t
Kasarsky v. Barnhart, 335 F.3d 539 (7th
significantly limit his abilities to follow
Cir. 2003), the ALJ noted on the PRTF
short and simple instructions and make
that the claimant frequently suffered from
simple work-related decisions. Id. at 695.
deficiencies in concentration, persistence,
The court disagreed, noting that the
or pace. In his hypothetical, the ALJ
-9-
vocational expert had testified on cross- We are not satisfied that these
e x a m i n a t io n that the cla iman t’s limitations take into account the ALJ’s
concentration and persistence deficiencies own observation (both in her opinion and
related to basic work habits needed to in the PRTF) that Ramirez often suffered
maintain employment. Thus, the court from deficiencies in concentration,
remanded for further proceedings. persistence, or pace. The first several
limitations that the ALJ included in her
Turning to the instant appeal, the
hypothetical pertain to Ramirez’s physical
ALJ asked vocational expert Stratton to
impairments and therefore have no bearing
assume a hypothetical individual with
on her mental impairments. The only
Ramirez’s background and the following
limitations that relate to Ramirez’s mental
limitations: sedentary work in a well-
impairments are the limitations to simple
ventilated environment, with no exposure
tasks, the restriction on travel, and the
to dust, fumes, pets, animals, chemicals, or
phone privileges.
temperature extremes; occasional breaks
necessary for the use of an inhaler or These limitations do not adequately
pump; no more than simple one- or two- convey all of Ramirez’s limitations. The
step tasks; no travel outside the workplace; Commissioner contends that the limitation
and a reasonable opportunity to receive to one to two step tasks is sufficient, but
and make personal telephone calls.3 we agree with the Magistrate Judge that a
“a requirement that a job be limited to one
to two step tasks, as was stated in the
3
We repeat the text of the hypothetical relied upon by the ALJ, does
hypothetical which was presented to not adequately encompass a finding that
Stratton, the vocational expert: [Ramirez] ‘often’ has ‘deficiencies in
concentration, persistence, or pace, as was
I will begin by asking you to assume that noted by the ALJ both in her decision and
we’re talking about an individual of Ms. on the PRTF attached to the decision.”
Ramirez’s age, education and prior work
history. And I’d like you to further
assume that this individual’s capable of of performing the work to travel outside
performing a range of sedentary work. of the workplace. And . . . the work
The work should be performed in a well setting should provide reasonable
ventilated facility, with no exposure to opportunity for the individual to make
dust, fumes, pets, animals, chemicals, or and receive personal phone calls. Within
temperature extremes. The work should the boundaries of these limitations, . . .
provide for occasional breaks, for the are there jobs in the regional or national
individual use of an inhaler or pump. economy that the individual could
The work should involve simple one to perform?
two step tasks. The work should not
require the individual during the course (A.R. at 457-58.)
-10-
(Appendix at 72.) M ost importantly, this may have concluded that the deficiency in
limitation does not take into account pace was so minimal or negligible that,
deficiencies in pace. Many employers even though Ramirez “often” suffered
require a certain output level from their from this deficiency, it would not limit her
employees over a given amount of time, ability to perform simple tasks under a
and an individual with deficiencies in pace production quota. The record, however,
might be able to perform simple tasks, but would seem to suggest otherwise. At the
not over an extended period of time. If second hearing, Dr. Rudnick—upon whose
Ramirez often suffers deficiencies in pace testimony the ALJ relied—was asked the
and this had been included in the following question: “What happens to
hypothetical, vocational expert Stratton [Ramirez’s] ability to handle pace, for
may have changed her answer as to example, in a work situation, where there’s
whether there were jobs in the local or a certain amount of work that has to be
national economy that Ramirez could done in an eight hours or two hours or
perform. In fact, the vocational expert whatever segment?” (A.R. at 451.)
testified that each of the jobs suitable for Although the ALJ briefly interceded
Ramirez (assembler, packer, and inspector) before Dr. Rudnick could answer, Dr.
would have daily production quotas and Rudick eventually replied that Ramirez’s
that Ramirez would have to maintain a ability to maintain a full-time job
certain degree of pace to maintain those depended primarily on “the proximity to
jobs. where her children would be” because
Ramirez’s anxiety-disorder is in large part
This omission from the hypothetical
attributable to her “need to feel that she
runs afoul of our directive in Chrupcala
has to be reasonably protective of her
that a “hypothetical question posed to a
children.” While this might lead a neutral
vocational expert ‘must reflect all of a
observer to conclude that Ramirez’s
clamant’s impairments,” Chrupcala, 829
deficiencies in pace could be overcome by
F.2d at 1276, as well as our statement in
finding a job close to her children, the ALJ
Burns that “great specificity” is required
did not include this limitation in her
when an ALJ incorporates a claimant’s
hypothetical. Instead, the ALJ provided
mental or physical limitations into a
only for a reasonable number of personal
hypothetical. Burns, 312 F.3d at 122.
phone calls. If this accommodation would
Indeed, the SSA’s own ruling requires a
not remedy Ramirez’s deficiency in
“more detailed assessment” of the
concentration and pace, the vocational
claimant’s mental limitations at step five
expert might have given a different answer
of the disability analysis. See SSR 96-8p
to the hypothetical.
(July 2, 1996).
Relying on Social Security Ruling
Of course, there may be a valid
96-8p, which we reproduced in part earlier
explanation for this omission from the
in this opinion, the Commissioner
ALJ’s hypothetical. For example, the ALJ
-11-
contends that the “PRTF does not For the foregoing reasons, we will
document specific functional limitations vacate the Order of the District Court and
for RFC purposes, bur rather assesses remand to the District Court so that it can
functional loss from a claimant’s mental in turn remand to the Commissioner for
impairments only with respect to broad further proceedings consistent with this
areas of functioning.” In other words, the Opinion.
Commissioner argues that the PRTF
findings are relevant only in steps two and
three of the sequential evaluation process,
before any assessment of a claimant’s
residual functional capacity is made.
We cannot concur in the
Commissioner’s evaluation of the PRTF
findings. While SSR 96-8p does state that
the PRTF findings are “not an RFC
assessment” and that step four requires a
“more detailed assessment,” it does not
follow that the findings on the PRTF play
no role in steps four and five, and SSR 96-
8p contains no such prohibition.
In conclusion, we hold that the
ALJ’s hypothetical did not adequately
capture and recite all of Ramirez’s mental
impairments and the limitations caused by
those impairments. In reaching that
holding, one factor we cannot ignore is
that the burden shifts to the Commissioner
at step five to prove that the claimant can
perform a job that exists in the national
economy. See Burns, 312 F.3d at 119 (“At
the final step—step five—the burden shifts
to the Commissioner to show that the
claimant can perform ‘other work.’”).
IV.
We have considered Ramirez’s
remaining arguments and, after reviewing
the record, are persuaded that they are
without merit.
V.
