IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

VAN LARIED SCOTT,

Plaintiff,

vs. CASE NO. 1:11-cv-80-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals to this Court from a final decision of the Commissioner of Social

Security (the “Commissioner”) denying Plaintiff’s applications for disability insurance

benefits and supplemental security income benefits. (Doc. 1.) The Commissioner has

answered (Doc. 9), and both parties have filed briefs outlining their respective positions. 

(Docs. 16 and 17.) For the reasons discussed below, the Commissioner’s decision is

due to be REVERSED AND REMANDED pursuant to the fourth sentence of 42 U.S.C.

§ 405(g).

I. PROCEDURAL HISTORY

Plaintiff filed applications for disability insurance benefits under Title II of the

Social Security Act (the “Act”) and supplemental security income benefits under Title

XVI of the Act on July 23, 2007 alleging a disability beginning May 3, 2007. (R. 107-

08.) Plaintiff’s applications were denied initially and upon reconsideration. (R. 56-59,

64-73.) Plaintiff then filed a timely request for an administrative hearing and a video

hearing was held before an Administrative Law Judge (“ALJ”) on February 8, 2010. (R.

Case 1:11-cv-00080-MP-GRJ Document 18 Filed 05/18/12 Page 1 of 19
33-55, 75.) The ALJ issued a written decision dated March 5, 2010 denying Plaintiff’s

applications. (R. 16-28.) Plaintiff then appealed the ALJ’s decision to the Appeals

Council, which denied Plaintiff’s request for review on March 31, 2011. (R. 1-3.) 

Plaintiff then filed his Complaint in this case on April 27, 2011. (Doc. 1.) 

II. STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial

evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more 1

than merely create a suspicion of the existence of a fact, and must include such

relevant evidence as a reasonable person would accept as adequate to support the

conclusion.2

Where the Commissioner's decision is supported by substantial evidence, the

district court will affirm, even if the reviewer would have reached a contrary result as

finder of fact, and even if the reviewer finds that the evidence preponderates against

the Commissioner's decision. The district court must view the evidence as a whole,

3

taking into account evidence favorable as well as unfavorable to the decision.4

However, the district court will reverse the Commissioner's decision on plenary review if

the decision applies incorrect law, or if the decision fails to provide the district court with

See 42 U.S.C. § 405(g) (2000).

1

Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,

2 th

838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842

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(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 Cir. 1991).

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Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 Cir. 1991).

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Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 Cir. 1992) (holding

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that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v.

Bowen, 793 F.2d 1177 (11 Cir. 1986) (finding that the court also must consider evidence detracting from

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evidence on which the Commissioner relied).

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sufficient reasoning to determine that the Commissioner properly applied the law.5

The law defines disability as the inability to do any substantial gainful activity by

reason of any medically determinable physical or mental impairment that can be

expected to result in death, or has lasted or can be expected to last for a continuous

period of not less than twelve months. The impairment must be severe, making 6

Plaintiff unable to do his previous work, or any other substantial gainful activity which

exists in the national economy.

7

The ALJ must follow five steps in evaluating a claim of disability. First, if a 8

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 9

claimant does not have any impairment or combination of impairments which

significantly limit his physical or mental ability to do basic work activities, then he does

not have a severe impairment and is not disabled. Third, if a claimant's impairments

10

meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is

disabled. Fourth, if a claimant's impairments do not prevent him from doing past 11

Keeton v. Dep’t Health and Human Servs., 21 F.3d 1064, 1066 (11 Cir. 1994).

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42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.

6

will be to the 2005 version unless otherwise specified.).

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

7

20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a

8

disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir. 1991).

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20 C.F.R. § 404.1520(b).

9

20 C.F.R. § 404.1520(c).

10

20 C.F.R. § 404.1520(d).

11

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Case 1:11-cv-00080-MP-GRJ Document 18 Filed 05/18/12 Page 3 of 19
relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 12

residual functional capacity (“RFC”), age, education, and past work) prevent him from

doing other work that exists in the national economy, then he is disabled.13

The burden of proof regarding the plaintiff’s inability to perform past relevant

work initially lies with the plaintiff. The burden then temporarily shifts to the 14

Commissioner to demonstrate that “other work” which the claimant can perform

currently exists in the national economy. The Commissioner may satisfy this burden

15

by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive

determination that a claimant is disabled or not disabled. 

16

However, the ALJ should not exclusively rely on the Grids when “the claimant

has a non-exertional impairment which significantly limits his or her basic work skills or

when the claimant cannot perform a full range of employment at the appropriate level of

20 C.F.R. § 404.1520(e).

12

20 C.F.R. § 404.1520(f).

13

Walker v. Bowen, 826 F.2d 996, 1002 (11 Cir. 1987); see also Doughty v. Apfel, 245 F.

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3d 1274, 1278 (11 Cir. 2001).

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Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:

15

In practice, the burden temporarily shifts at step five to the Commissioner. The

Commissioner must produce evidence that there is other work available in significant

numbers in the national economy that the claimant has the capacity to perform. In order

to be considered disabled, the claimant must then prove that he is unable to perform the

jobs that the Commissioner lists. The temporary shifting of the burden to the Commissioner

was initiated by the courts, and is not specifically provided for in the statutes or

regulations.) (Internal citations omitted).

Walker, 826 F.2d at 1002 (“[T]he grids may come into play once the burden has shifted to the

16

Commissioner to show that the claimant can perform other work.”).

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exertion.” In a situation where both exertional and non-exertional impairments are 17

found, the ALJ is obligated to make specific findings as to whether they preclude a wide

range of employment.18

The ALJ may use the Grids as a framework to evaluate vocational factors so

long as he introduces independent evidence of the existence of jobs in the national

economy that the claimant can perform. Such independent evidence may be 19

introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive

means of introducing such evidence. Only after the Commissioner meets this burden

20

does the burden shift back to the claimant to show that he or she is not capable of

performing the “other work” as set forth by the Commissioner.

III. SUMMARY OF THE RECORD

A. Personal Background

Plaintiff, born on December 13, 1958, was 51 years of age on February 8, 2010,

the date of the administrative hearing. (R. 39.) He completed thirteen years of

schooling. (Id.) Plaintiff has prior work experience as a self-employed handyman, a

newspaper carrier, and a lawn service worker. (R. 51.)

B. Evidence Considered By the ALJ

The Plaintiff concentrates his arguments on the ALJ’s treatment of Plaintiff’s 

Wolfe v. Chater, 86 F.3d 1072, 1077 ( 11 Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229

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(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids may be used only when each variable on the

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appropriate grid accurately describes the claimant’s situation.”).

W alker, 826 F.2d at 1003.

18

W olfe, 86 F.3d at 1077-78.

19

See id.

20

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mental impairments. Accordingly, the Court will focus its discussion of the record on

the record evidence relating to Plaintiff’s mental impairments.

Plaintiff received treatment at Meridian Behavioral Healthcare, Inc. (“Meridian”) in

Gainesville, Florida beginning on July 16, 2007 for complaints of depression and

anxiety. (R. 192.) On August 2, 2007 Plaintiff complained he was sleeping quite a bit

and had little desire to do much of anything. (R. 203-04.) On August 22, 2007 he

reported his mood was a 3 out of 10 and Plaintiff was diagnosed with a major

depressive disorder, dysthymic disorder, and chronic post traumatic stress disorder,

and was assigned a GAF of 30. (R. 196-99.) 21

On October 30, 2007 Plaintiff reported a depressed mood to Dr. Sarah Frazier,

M.D., his treating psychiatrist at Meridian, while the progress note reflects Plaintiff’s

affect was euthymic. (R. 285-86.) On November 28, 2007, Plaintiff reported very poor

energy and increased anxiety. (R. 283-84.)

On December 21, 2007, Dr. Lance Chodosh, M.D. performed a consultative

physical examination of Plaintiff. (R. 264-76.) Dr. Chodosh opined Plaintiff suffered

from (i) obesity; (ii) fatigue, lethargy and exertional dyspepsia, which he stated was

probably multi-factorial and secondary to Plaintiff’s obesity, depression, poor

conditioning and sleep apnea; (iii) depression/psychological issues; (iv) hypertension;

Global Assessment of Functioning, or GAF, is a measure of an individual’s psychological, social

21

and occupational functioning. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

Scores range from 0 to 100 and a score between 21 and 30 reflects the individual’s behavior is

considerably influenced by delusions or hallucinations or a serious impairment in communication or

judgment or an inability to function in almost all areas, while a score between 31 and 40 reflects some

impairment in reality testing or communication or a major impairment in several areas, such as work or

school, family relations, judgment, thinking, or mood. Id. at 34. A score between 41 and 50 represents

“serious” symptoms or any serious impairment in social occupational or school functioning; 51 to 60

represents moderate symptoms or moderate difficulties in social, occupational or school functioning. Id.

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and (v) chronic low back pain and muscular cramping secondary to obesity. (R. 276.) 

Dr. Chodosh opined Plaintiff could stand and walk for 15 minutes at a time and for 3

hours out of 8 hours; stoop occasionally; cannot squat but can kneel; lift at least 40

pounds occasionally; and carry 15-20 pounds occasionally. (Id.)

Dr. Sarah Frazier completed a Treating Source Mental Health Report form dated

December 26, 2007. (R. 279-80.) The form reflected Plaintiff suffered from difficulties

maintaining his energy “but from [a] psychiatric perspective [he] may be able to work in

some capacities.” (R. 280.) When asked whether Plaintiff could sustain work activity

for eight hours a day, five days a week, she opined Plaintiff might experience “possible

difficulty” maintaining sustained attention for 40 hours per week. (Id.) The progress

note for Plaintiff’s December 26, 2007 visit to Dr. Frazier reflects his mood was

depressed and his affect was mildly dysphoric. (R. 331-32.) On a January 29, 2008

visit to Dr. Frazier, Plaintiff’s activities of daily living were good and his affect was

euthymic. (R. 325-26.)

Dr. Linda Abeles, Ph.D., a consulting psychologist, completed a mental status

examination of Plaintiff on February 8, 2008. (R. 301-03.) Dr. Abeles opined Plaintiff

suffered from a depressive disorder as well as “Antisocial Personality Disorder Traits

based on his history of approximately 90 arrests” and assigned Plaintiff a GAF of 50. 

(R. 303.) She further opined Plaintiff’s “current level of psychological functioning would

probably preclude him from obtaining or maintaining employment in that he would not

appear to have the ability to cope with the stressors inherent in any position.” (Id.)

Dr. Alan Harris, Ph.D., a non-examining consulting psychologist, completed a

Psychiatric Review Technique form dated February 15, 2008. (R. 305-18.) Dr. Harris

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opined Plaintiff had mild restrictions in his activities of daily living, mild difficulties in

maintaining social functioning and mild difficulties in maintaining concentration,

persistence or pace, and no episodes of decompensation, each of extended duration.

(R. 315.) Dr. Harris concluded Plaintiff should be able to cope mentally with a low

stress job. (R. 317.)

On March 4, 2008, Plaintiff’s affect was restricted and Plaintiff’s progress was

rated as a 3 out of 10 by Dr. Frazier. (R. 321-22.) On April 15, 2008, Dr. Frazier noted

Plaintiff exhibited good activities of daily living and also noted Plaintiff was reporting

fewer occasions when Plaintiff felt like “he doesn’t care.” (R. 319-20.) 

Dr. Michael Zelenka, Ph.D., a consulting psychologist, completed a Psychiatric

Review Technique form and Mental Residual Functional Capacity form, both of which

are dated May 13, 2008. (R. 333-50.) Dr. Zelenka opined Plaintiff had mild restrictions

in his activities of daily living, mild difficulties in maintaining social functioning, moderate

difficulties in maintaining concentration, persistence or pace, and one or two episodes

of decompensation of extended duration. (R. 347.) Dr. Zelenka opined Plaintiff may

have some problems with motivation and concentration, which would affect Plaintiff’s

productivity, but concluded “with allowances, he retains adequate mental ability to carry

out instr[uctions] and to relate adequately to others in a routine work setting.” (R. 335.) 

Dr. Frazier completed a second Treating Source Mental Health Report form, this

one dated June 10, 2008. (R. 359-60.) She stated Plaintiff “has significant difficulty

with excessive fatigue, anhedonia and depressed mood which negatively impact his

ability to work.” (R. 360.) When asked whether Plaintiff could sustain work activity for

eight hours a day, five days a week, she concluded “No” and noted Plaintiff “is easily

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sedated, is not able to maintain focus/energy for sustained periods.” (Id.)

On a June 10, 2008 visit to Meridian, Plaintiff reported he felt “lost,” but the

progress note reflects he was very talkative and “wanted to talk about irrelevant topics,”

while Dr. Frazier reported his progress as a 4 out of 10. (R. 369-70, 402-03.) On

August 5, 2008 Plaintiff reported a lack of motivation and trouble focusing and

concentrating, and his GAF was rated as 55. (R. 367-68, 375-76, 400-01.) On

December 18, 2008, Plaintiff reported feeling “flat,” and his progress was rated as a 4

out of 10. (R. 397-98.) On March 9, 2009, Plaintiff reported being unable to focus

longer than 10-20 minutes and his GAF was rated as a 50. (R. 373-74.) 

On May 12, 2009, Plaintiff reported feeling very irritable and angry, while his

affect was mildly irritable and his progress was rated as a 4 out of 10. (R. 390-91.) On

July 28, 2009, Plaintiff presented with a depressed mood, a mildly anxious affect and

his progress was rated as fair. (R. 363-64, 387-88.) On September 1, 2009 Plaintiff

reported feeling more violent and angry and difficulties with focus, attention and

concentration, and Dr. Frazier noted his mood appeared apathetic and anhedonic. (R.

362, 371-72, 385-86.) On November 2, 2009 Plaintiff’s mood was depressed, his affect

was euthymic, and his progress was rated as 5 out of 10. (R. 382-83.) On December

15, 2009, Plaintiff reported “trouble getting out of the house” and his affect was

euthymic. (R. 380-81.) 

C. Hearing Testimony

Plaintiff testified at his February 8, 2010 administrative hearing. He testified he

had completed thirteen years of education and his last employment was as a self9

Case 1:11-cv-00080-MP-GRJ Document 18 Filed 05/18/12 Page 9 of 19
employed handyman in May 2007. (R. 37, 40.) He stopped working as a handyman

when one day he experienced pain shooting down his spine, which prevented him from

being able to walk farther than a block. (R. 40.) Prior to working as a handyman, he

was a newspaper carrier. (Id.)

As far as his medical issues, Plaintiff testified he experienced lower back pain

from time to time and stated he has depression and sleep apnea. (R. 41, 46-47.) He

testified his depression prevents him from getting out of bed about 27 days in a 31 day

month. (Id.) He spends his days in bed surfing the Internet for 16-18 hours a day. (R.

42.) He only sleeps in periods of 30 minutes to an hour and also has issues

maintaining his focus. (R. 43.) Plaintiff also testified he becomes agitated around other

people. (R. 44.) Plaintiff testified he can stand and/or walk for about five to ten minutes

at a time; sit for about 90 minutes at a time; and lift five to seven pounds. (R. 44-45.) It

takes him approximately two hours to shower because he can only stand for five to ten

minutes at a time. (R. 41-42.) 

A Vocational Expert (VE”) also testified at the February 8, 2010 administrative

hearing. The VE testified Plaintiff’s past relevant work consisted of the positions of

newspaper carrier, handyman, and lawn service worker. (R. 51.) The ALJ described a

hypothetical individual with a 13 grade education, with Plaintiff’s prior work experience,

th

who can lift and carry 20 pounds occasionally and 10 pounds frequently; stand/and or

walk for about two hours and sit for about six hours in an 8-hour workday; unlimited

pushing and pulling restrictions; occasional functional limitations except the person

could never climb ropes, ladders, ropes, and scaffolds; should avoid concentrated

exposure to extreme cold, extreme heat, fumes, odors, dust, gases and poor

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ventilation; and should avoid even moderate exposure to such hazards as dangerous

machinery and unprotected heights. (R. 51-52.) The ALJ defined occasional as “a

serious impairment in this area, but a person is still able to function satisfactorily.” (R.

52.) When the ALJ asked the VE if the hypothetical individual could perform any of

Plaintiff’s past relevant work, the VE stated the hypothetical individual could not but the

individual could perform the positions of surveillance system monitor, food checker and

telephone solicitor. (R. 52.) The VE testified there were significant numbers of each of

the three positions in both Florida and the national economy. (Id.)

The ALJ then further refined the occupational profile of the individual by stating

the individual was moderately limited in his ability to maintain attention and

concentration for extended periods, his ability to complete a normal workweek without

interruptions from psychologically based symptoms, and in his ability to perform at a

consistent pace without an unreasonable number and length of rest periods. (R. 53.) 

The ALJ defined “moderately limited” as having “a serious impairment in this area, but a

person is still able to function satisfactorily.” (Id.) The VE opined the individual could

still perform the surveillance system monitor, food checker and telephone solicitor

positions, even with these additional mental limitations. (Id.) The ALJ then asked if the

hypothetical individual could still perform those three positions if the person were obese

and weighed over 400 pounds. The VE testified the obesity would have no effect on

the hypothetical individual’s ability to perform the three positions. (Id.)

D. The ALJ’s Findings

In her written decision dated March 5, 2010, the ALJ concluded Plaintiff had not

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engaged in substantial gainful activity since May 3, 2007, the alleged disability onset

date. (R. 18.) She stated Plaintiff had the severe impairments of obesity, hypertension,

obstructive sleep apnea and depression. (Id.) The ALJ further determined Plaintiff did

not have an impairment or combination of impairments that met or equaled one of the

Listings. (Id.) In support of this finding, the ALJ stated Plaintiff had mild restriction in

his activities of daily living, mild difficulties in maintaining social functioning, and

moderate difficulties with respect to concentration, persistence or pace. (R. 19.) 

The ALJ concluded Plaintiff had the RFC to perform light work except Plaintiff:

can stand/and or walk about 2 hours in an 8-hour workday; sit about 6

hours in an 8-hour workday; push and/or pull with no limitations; and

never climb ropes and scaffolds. The claimant should avoid concentrated

exposure to extreme cold, heat, fumes, odors, dusts, gases and poor

ventilation; and should avoid even moderate exposure to dangerous

machinery and unprotected heights. The claimant is moderately limited in

his ability to maintain attention and concentration for extended periods;

complete a normal workday and work-week without interruptions from

psychologically based symptoms; and to perform at a consistent pace

without an unreasonable number and length of rest periods.

(R. 20.)

The ALJ then determined Plaintiff was incapable of performing any of his past

relevant work. (R. 26.) The ALJ further determined, considering Plaintiff’s age,

education, work experience, and RFC, there are jobs which exist in the national

economy Plaintiff can perform. (R. 27.) In support of this conclusion, the ALJ cited the

VE’s testimony that Plaintiff could perform the positions of surveillance system monitor,

food checker and telephone solicitor, all of which are present in significant numbers in

both the local economy and the national economy. (R. 28.) Accordingly, the ALJ

concluded Plaintiff has not been under a disability from May 3, 2007, the alleged

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disability onset date, through the date of the March 5, 2010 written decision. (Id.) 

IV. DISCUSSION

Plaintiff argues the ALJ committed two errors. First, Plaintiff contends the ALJ

erred in failing to complete a Psychiatric Review Technique (“PRT”) form or perform the

analysis the PRT and its accompanying regulations require. Secondly, the Plaintiff

contends the ALJ erred by asking the VE an improper hypothetical question. For the

reasons discussed below the Court concludes that while the ALJ did not err as to the

first issue the ALJ committed reversible error on the second issue with respect to one of

the hypothetical questions posed to the VE.

A. The ALJ Performed the Analysis Required by the PRT and the

Regulations Associated with the PRT

Plaintiff contends the ALJ erred by failing to complete a PRT or by failing to

perform the analysis required by the PRT and its associated regulations. A review of

the ALJ’s decision discloses that the ALJ performed the analysis required by the PRT.

The Commissioner’s regulations require an ALJ to use the “special technique”

dictated by the PRT in evaluating mental impairments. 20 C.F.R. § 404.1520a(a). The

special technique requires separate evaluations of how the claimant’s mental

impairment impacts the claimant in four broad functional areas: activities of daily living;

social functioning; concentration, persistence, or pace; and episodes of

decompensation. 20 C.F.R. § 404.1520a(c)(3)-(4). The regulations require the ALJ to

document the application of the PRT, to discuss the pertinent findings and conclusions

based on application of the PRT, and to make specific findings as to the degree of

limitation in each of the four functional areas in the written decision. Id. §

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404.1520a(e)(4). An ALJ’s failure to complete a PRT, append a PRT to the written

decision or incorporate the PRT’s mode of analysis into the ALJ’s findings and

conclusions in the written decision warrants remand to the Commissioner.22

In the ALJ’s written decision, the ALJ specifically discussed and concluded that

Plaintiff has “mild restriction in activities of daily living, mild difficulties in maintaining

social functioning, moderate difficulties in maintaining concentration, persistence or

pace, and no episodes of decompensation, each of extended duration.” (R. 19.) In

support of this conclusion, the ALJ cited the opinions of consulting psychologists Dr.

Abeles, Dr. Zelenka and Dr. Harris, the opinion expressed by Dr. Frazier, Plaintiff’s

treating psychiatrist, as well as the progress notes from Plaintiff’s August 2008 visit to

Dr. Frazier. (Id.) 

The ALJ’s analysis was supported by substantial evidence. In a PRT dated

February 15, 2008, Dr. Alan Harris, Ph.D., a consulting psychologist, opined Plaintiff

had mild restrictions in his activities of daily living, mild difficulties in maintaining social

functioning, mild difficulties in maintaining concentration, persistence or pace and no

episodes of decompensation, each of extended duration. (R. 315.) In a PRT dated

May 13, 2008, Dr. Michael Zelenka, Ph.D., a consulting psychologist, opined Plaintiff

had mild restrictions in his activities of daily living, mild difficulties in maintaining social

functioning, moderate difficulties in maintaining concentration, persistence or pace and

one or two episodes of decompensation of extended duration. (R. 347.) Both opinions

are consistent with the ALJ’s conclusions with respect to the four areas of functioning in

Moore v. Barnhart, 405 F.3d 1208, 1214 (11 Cir. 2005).

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20 C.F.R. § 404.1520a.

The ALJ’s conclusion was also supported by the opinions of Plaintiff’s treating

psychiatrist, Dr. Sarah Frazier, and consulting psychologist Dr. Linda Abeles. The

progress notes from many of Plaintiff’s visits to Meridian reflect Plaintiff was able to

engage in activities of daily living. (R. 286, 320, 322, 326, 332, 381, 383, 386, 388,

395, 398, 401, 403.) The Treating Source Mental Health Report form Dr. Frazier

completed on December 26, 2007 reflected Plaintiff’s attention and concentration were

intact and Plaintiff’s grooming and hygiene were good. (R. 279-80.) The form Dr.

Frazier completed on June 10, 2008 reflected Plaintiff’s “concentration [was] fairly

intact” and his grooming and hygiene were good, although it also contained the

somewhat contradictory opinion that Plaintiff “is not able to maintain focus/energy for

sustained periods.” (R. 359-60.) Consulting psychologist Dr. Abeles also noted in her

report Plaintiff “is able to take care of his daily personal needs.” (R. 302.)

Although the ALJ did not fill out a PRT form herself – which she is not required to

do – the ALJ nevertheless performed the analysis required under the Commissioner’s

regulations and discussed and relied upon the PRT’s prepared by the medical

professionals in this case. Accordingly, the ALJ did not err in failing to complete a PRT

or failing to perform the analysis required by the PRT and the associated regulations.

B. One of The ALJ’s Hypothetical Failed to Properly Present to the VE

The Mental Impairments In Plaintiff’s RFC

Plaintiff also contends the ALJ erred by posing an improper hypothetical question

to the VE. Specifically, Plaintiff points to the second hypothetical posed to the VE in

which the ALJ included the following limitation and qualification regarding Plaintiff’s non15

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exertional mental impairments: 

[Assume the claimant is further restricted because] “his ability to maintain

attention and concentration for extended periods is moderately limited, as well as 

the ability to complete a normal workday and workweek without interruptions from 

 psychologically based symptoms, and to perform at a consistent pace without an 

unreasonable number and length of rest periods.” (R. 53.) 

 Although there is no issue with this part of the hypothetical the ALJ went on to

include in the hypothetical a definition of “moderately limited.” The ALJ instructed the VE

to assume “moderately limited is defined as a serious impairment in this area, but a

person is still able to function satisfactorily.” Id. Relying upon this second hypothetical

the VE testified that the individual could still perform the jobs of surveillance system

monitor, food checker and telephone solicitor positions. Id. The ALJ then asked if the

hypothetical individual could still perform those three positions if the person were obese

and weighed over 400 pounds, which the VE testified would have no effect on the

hypothetical individual’s ability to perform any of the three positions. Id.

In finding Plaintiff’s RFC the ALJ expressly included the limitation that “ the

claimant is moderately limited in his ability to maintain attention and concentration for

extended periods; complete a normal workday and workweek without interruptions from

psychologically based symptoms; and to perform at a consistent pace without an

unreasonable number and length of rest periods.” (R. 20.) The ALJ appropriately

included this limitation in the second hypothetical posed to the VE. The problem is that

nothing in the Commissioner’s own regulations defines moderately limited. The

Commissioner concedes this point in his brief. 

The fact that there is no definition in the regulations of the term “moderately

limited” does not end the analysis, however, and does not mean that the ALJ committed

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error in posing the second hypothetical to the VE. To be sure the Social Security

Administration’s regulations do not obligate an ALJ to use specific wording when

describing Plaintiff’s impairments in these hypotheticals so long as the question

accurately reflects the claimant’s RFC. However, in order for a response to a

hypothetical question by a VE to constitute substantial evidence of work available to the

claimant (at Step Five), the question must set out all of the claimant’s impairments.23

Here, by including a definition, which on its face appears to conflict with the RFC

finding that the Plaintiff has some mental limitation – albeit it a “moderate” limitation in

his ability to complete a normal workday or workweek, without interruptions from the

symptoms from his mental impairments and to perform consistently without an

unreasonable number and length of rest breaks – the hypothetical at worst inaccurately

presented the Plaintiff’s RFC and at best was confusing as to the limitation the VE was

to assume. The hypothetical is defective because it is susceptible to a number of

different interpretations – none of which were clarified on the record at the hearing. For

example, the VE reasonably could have assumed that the ALJ meant the Plaintiff was

fully able to function satisfactorily in performing the actual functions of the job but could

not do so for an extended period of time without being interrupted by his mental issues

and without having to take a number of breaks for an unspecified period of time.

Alternatively, the VE reasonably could have interpreted the hypothetical to mean that

even though the Plaintiff experienced some interruptions as a result of his mental issues

he, nonetheless, could satisfactorily perform the job. This latter interpretation would

W ilson v. Barnhart, 284 F3d.1219, 1227 (11 Cir. 2002).

23 th

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mean that even though Plaintiff had limitations from his mental impairments the

limitations did not effect his ability to work. The point is that the Court cannot determine

from this record the meaning the ALJ intended from the hypothetical and any attempt to

discern the meaning the VE gave to the hypothetical would be pure speculation.

Consequently, because there is a material question as to what the ALJ intended to

include (and exclude) in his hypothetical there remains an issue as to whether the VE’s

response to the hypothetical question is sufficient to constitute substantial evidence to

meet the Commissioner’s burden at step five of the sequential analysis.

 Accordingly, for this reason this case should be remanded to the Commissioner

so that the ALJ can conduct a new hearing and pose a proper hypothetical question to

the VE, which accurately and unambiguously specifies the mental non-exertional

limitations of the Plaintiff so that the VE will be able to provide an opinion – based upon

an accurate description of Plaintiff RFC – as to whether the Plaintiff can perform other

work which exists in significant numbers in the national economy. 

V. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that the decision of

the Commissioner should be REVERSED AND REMANDED to the Commissioner under

Sentence Four of 42 U.S.C. § 405(g) with instructions to the Commissioner to conduct a

further hearing so that the ALJ can pose a hypothetical question to the VE, which

accurately and unambiguously includes Plaintiff’s non-exertional functional limitations in

his ability to maintain concentration, persistence and pace. 

IN CHAMBERS in Gainesville, Florida, on May 18, 2012.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of this report

and recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of proposed

factual findings and recommendations.

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