IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

GARNET SHORTRIDGE,

Plaintiff,

vs. CASE NO. 1:11-cv-71-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 application for supplemental security

income benefits. (Doc. 1.) The Commissioner has answered (Doc. 11), and both

parties have filed briefs outlining their respective positions. (Docs. 18 and 19.) For the

reasons discussed below, the Commissioner’s decision is due to be REVERSED AND

REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff filed an application for supplemental benefits under Title XVI of the

Social Security Act (the “Act”) on May 30, 2006 alleging a disability beginning June 1,

2004. (R. 87-89.) Plaintiff’s application was denied initially and upon reconsideration. 

(R. 52-55.) Plaintiff then filed a timely request for an administrative hearing and a

hearing was held before an Administrative Law Judge (“ALJ”) on November 5, 2008.

(R. 27-50.) The ALJ issued a written decision dated February 12, 2009 denying

Plaintiff’s application. (R. 17-26.) Plaintiff then appealed the ALJ’s decision to the

Case 1:11-cv-00071-MP-GRJ Document 20 Filed 04/03/12 Page 1 of 20
Appeals Council, which denied Plaintiff’s request for review on February 23, 2011. (R.

1-3.) Plaintiff then filed her Complaint in this case on April 21, 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

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

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

th

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

th

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

3 th

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

4 th

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

th

evidence on which the Commissioner relied).

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

5 th

2

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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

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

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).

th

20 C.F.R. § 404.1520(b).

9

20 C.F.R. § 404.1520(c).

10

20 C.F.R. § 404.1520(d).

11

20 C.F.R. § 404.1520(e).

12

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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

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

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.

14 th

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

th

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.”).

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

17 th

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

th

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

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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 March 1, 1981, was 27 years of age on November 5, 2008, the

date of the administrative hearing. (R. 30.) She has a twelfth grade education. (Id.) 

Plaintiff has prior work experience as a fast food worker, as a grocery bagger, and as a

child day care center worker. (R. 44-46.)

B. Evidence Considered By the ALJ

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

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

the evidence relating to Plaintiff’s mental impairments.

Plaintiff attended special education classes at Edgewater High School in

W alker, 826 F.2d at 1003.

18

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

19

See id.

20

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Orlando, Florida for an emotional handicap. (R. 115-28, 184-203.) She graduated in

2000 with a special diploma. (R. 115.) Her high school records reflect she had difficulty

in developing and maintaining friendships with her peers as well as difficulties dealing

with authority figures. (R. 185.) A psycho-educational evaluation was conducted by the

Edgewater High School school psychologist when Plaintiff was in 11 grade in February th

1999 to investigate the emotional/behavioral and academic/learning problems Plaintiff

was experiencing. (R. 194-201.) As part of the evaluation a Wechsler Adult

Intelligence Scale-Third Edition was administered and reflected Plaintiff’s full-scale I.Q.

was 78, her verbal I.Q. was 82 and her performance I.Q was 78. (R. 195-96.) The

school psychologist concluded Plaintiff was exhibiting serious emotional/behavioral

problems and that Plaintiff demonstrated the following characteristics of an emotional

handicap: an inability to achieve adequate academic progress which cannot be

explained by intellectual, sensory or health factors; an inability to build or maintain

satisfactory interpersonal relationships with peers and teachers; and a general

pervasive mood of unhappiness or depression. (R. 200.) 

On September 7, 2006, Dr. Linda Abeles, Ph.D., a consulting psychologist,

performed a consultative examination of Plaintiff. (R. 238-40.) Dr. Abeles administered

a Wechsler Adult Intelligence Scale-Third Edition, which reflected a verbal I.Q. score of

75, a performance I.Q. score of 74 and a full scale I.Q. of 72. (R. 239.) Dr. Abeles

noted the results were “suggestive of some fluctuation in attention and concentration

abilities.” (Id.) Dr. Abeles diagnosed Plaintiff with ADHD, borderline intellectual

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functioning, and assigned her a GAF of 65. Dr. Abeles opined Plaintiff was 21

“functioning in the Borderline Range of intelligence as well as having an AttentionDeficit Disorder.” (R. 240.) She further opined Plaintiff’s level of psychological

functioning would likely preclude Plaintiff from obtaining or maintaining employment

because Plaintiff “would have a great deal of difficulty in performing her job on a

consistent basis.” (Id.) Dr. Abeles further opined, however, Plaintiff “may be capable of

obtaining and maintaining manual labor positions with appropriate medication

management.” (Id.)

Dr. Val Bee, Psy.D., a non-examining consulting psychologist, completed a

Psychiatric Review Technique form and Mental Residual Functional Capacity form, both

of which are dated September 29, 2006. (R. 242-59.) Dr. Bee opined Plaintiff had

moderate restrictions in her activities of daily living, mild difficulties in maintaining social

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

(R. 252.) Dr. Bee concluded Plaintiff “may have difficulty with detailed learning and

concentrating on complex or simultaneous demands” but Plaintiff “appears capable of

at least superficially appropriate and cooperative interaction.” (R. 258.) Dr. Bee noted

Plaintiff appeared “mentally capable of well structured task activity” if Plaintiff was

“given some additional assistance learning a new public transportation route and setting

suitable goals.” (Id.)

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

21

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

1994). Scores range from 0 to 100 and a score between 61 and 70 represents some mild symptoms,

such as a depressed mood or insomnia, or some difficulty in social, occupational or school functioning, but

generally the person is functioning well and has some meaningful interpersonal relationships. Id. at 34.

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Non-examining consulting physician Dr. Alejandro Vergara, M.D. completed a

Mental Residual Functional Capacity assessment of Plaintiff dated January 23, 2007

and a Psychiatric Review Technique dated February 2, 2007. (R. 267-70, 279-92.) He

opined Plaintiff had mild limitations in her activities of daily living and moderate

difficulties in maintaining concentration, persistence or pace. (R. 289.) In support of

these conclusions, he noted Plaintiff may experience difficulties in trying to understand,

remember and carry out detailed instructions and in maintaining concentration for

extended periods of time. (R. 269.) Dr. Vergara diagnosed Plaintiff with borderline

intellectual functioning and a history of attention deficit disorder and noted Plaintiff

“appears to retain the necessary mental capabilities to do simple, repetitive type tasks

and assignments.” (R. 269, 280.)

C. Hearing Testimony

Plaintiff testified at her November 5, 2008 administrative hearing. Plaintiff

testified she had prior work experience as a fast food worker, as a grocery bagger, and

as a child day care center worker. (R. 44-46.) She was fired from a job at Wendy’s

after two months for talking back to her supervisor. (R. 31-32.) She left the day care

center job because she was tired of “doing the same old stuff over and over.” (R. 32-

33.) She testified she could still perform the duties of her previous day care job. (R.

33.) Plaintiff’s primary reason for not working at present was her lack of transportation.

(R. 33-34.) Plaintiff testified she cannot drive because she only has a learner’s permit,

and further stated she has attempted to obtain a driver’s license because she has failed

the driving test four times. (R. 39.) 

As far as her medical issues, Plaintiff testified she has problems sitting and/or

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standing for long periods of time. (R. 34.) She further testified she can walk for

approximately half an hour and can sit for around fifteen minutes before she begins to

experience pain. (R. 35-36.) She can lift up to 15 pounds at a time. (R. 37.) She also

testified she has issues understanding the difference between an argument and a

conversation. (R. 40.) She further testified she cannot adjust to ordinary stress. (R. 40-

41.) She also has issues getting along with people, controlling her anger and

controlling her impulses. (R. 41-42.)

A Vocational Expert (VE”) testified at the November 5, 2008 administrative

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

retail bagger, short order cook, fast food worker, and child day care center worker. (R.

45.) The ALJ asked the VE if a hypothetical individual with a 12 grade education, with th

Plaintiff’s prior work experience, with no exertional limitations, and who is limited to the

performance of routine, repetitive work could perform any of Plaintiff’s past relevant

work. (R. 47.) The VE responded the hypothetical individual could perform the short

order cook, fast food worker and retail bagger positions. (Id.) The ALJ further refined

the occupational profile of the hypothetical individual by stating the person is restricted

to routine, repetitive work that would require alternating positions from standing and

sitting to walking and is also restricted to work involving little or no contact with the

public. (Id.) The VE testified the second hypothetical individual could not perform any

of Plaintiff’s past relevant work but could perform the positions of house sitter, odd

piece checker, companion, and tube operator. (R. 47-49.) The VE further testified

there were significant numbers of each of those four positions in both Florida and the

national economy. (Id.) 

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D. The ALJ’s Findings

In his written decision dated February 12, 2009, the ALJ concluded Plaintiff had

not engaged in substantial gainful activity since May 20, 2006, the application date. (R.

22.) He stated Plaintiff had the severe impairments of “borderline intellectual

functioning, a history of attention deficit-hyperactivity disorder (ADHD), NOS, and

obesity.” (Id.) The ALJ further determined Plaintiff did not have an impairment or

combination of impairments that met or equaled one of the Listings. (R. 23.) In support

of this finding, the ALJ stated Plaintiff had mild restriction in her activities of daily living

and moderate difficulties with respect to concentration, persistence or pace. (Id.) The

ALJ concluded Plaintiff had the RFC to “perform a full range of work at all exertional

levels but with the following nonexertional limitations: simple, routine, repetitive work

tasks.” (R. 24.) 

The ALJ then determined Plaintiff was capable of performing her past relevant

work as a bagger and fast food worker, both as Plaintiff had performed those jobs as

well as how those jobs are generally performed. (R. 25-26.) In support of this

conclusion, the ALJ noted the VE’s testimony that Plaintiff could perform her past

relevant work as both a fast food worker and retail bagger. (Id.) Accordingly, the ALJ

concluded Plaintiff has not been under a disability as of May 30, 2006, the date she

filed her application for supplemental security income benefits. (R. 26.) 

IV. DISCUSSION

Plaintiff argues the ALJ committed several errors in his written decision. First,

she contends the ALJ failed to adequately account for her severe mental impairments

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when he assessed her RFC. Second, Plaintiff argues the ALJ erred at Step Four in

determining she had past relevant work. Third, she contends the ALJ erred by not

including twenty factors from the Commissioner’s Psychiatric Review Technique form in

the ALJ’s hypotheticals to the VE. Lastly, Plaintiff contends the ALJ erred by not

sufficiently accounting for her moderate limitations in concentration, persistence and

pace in the ALJ’s hypotheticals to the VE. The Court will discuss each issue in detail

below.

A. The ALJ’s Determination of Plaintiff’s Mental RFC Is Supported By

Substantial Evidence

Plaintiff contends the ALJ did not properly assess her mental residual functional

capacity. Plaintiff specifically argues that the ALJ erred by not adopting the mental RFC

conclusions expressed by the state agency physicians. This argument, however,

ignores the fact that the ALJ’s determination of Plaintiff’s RFC was consistent with the

medical opinions expressed by the state agency physicians, and not, as Plaintiff

suggests, different from the RFC opinions expressed by the state agency physicians.

The ALJ determined Plaintiff had the severe impairments of “borderline

intellectual functioning, a history of attention deficit-hyperactivity disorder (ADHD), NOS,

and obesity.” (R. 22.) The ALJ concluded Plaintiff had the RFC to “perform a full range

of work at all exertional levels but with the following nonexertional limitations: simple,

routine, repetitive work tasks.” (R. 24.) In support of this conclusion, the ALJ expressly

relied upon the state agency experts. The ALJ wrote the following: 

With respect to the claimant’s mental impairments the undersigned

concurs with the State Agency consultants that the claimant is limited to

simple, repetitive tasks due to her borderline intellectual functioning, and

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history of attention deficit-hyperactivity disorder (ADHD). As for the

opinion evidence of the State Disability Determination Services medical

consultants the undersigned Administrative Law Judge concurs with such

opinion evidence and gives great weight to their opinions in accordance

with Social Security Ruling 96-6p.

(R. 25.) 

The ALJ properly determined Plaintiff’s mental RFC and the determination was

supported by substantial record evidence. The ALJ extensively reviewed Plaintiff’s

statements as to her activities of daily living and concluded Plaintiff had moderate

difficulties in concentration, persistence and pace and mild restrictions in her activities

of daily living. (R. 23.) In his decision, and as discussed above, the ALJ also relied

upon the findings of the consulting physicians who provided medical opinions related to

Plaintiff’s mental impairments. (R. 22.) In support of his mental RFC conclusion, the

ALJ specifically referenced the medical opinions expressed by the consulting

physicians, which was the most relevant medical evidence in the record with respect to

Plaintiff’s mental RFC. (R. 25.) 

Despite Plaintiff’s suggestions to the contrary, the opinions expressed by the

state agency consulting physicians supported the ALJ’s determination as to Plaintiff’s

mental RFC. Notably, the ALJ’s determination as to Plaintiff’s mental RFC was virtually

identical to the opinion expressed by Dr. Alejandro Vergara, M.D., who concluded that

Plaintiff “appears to retain the necessary mental capabilities to do simple, repetitive

type tasks and assignments.” (R. 269, 280.) Dr. Vergara further opined Plaintiff had

mild limitations in her activities of daily living and moderate difficulties in maintaining

concentration, persistence or pace. (R. 289.) These are the same restrictions the ALJ

found and the same restrictions the ALJ accounted for in the RFC by limiting Plaintiff to

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simple, repetitive tasks. (R. 23.)

Furthermore, Plaintiff’s mental RFC was consistent with the other medical

opinions relating to Plaintiff’s mental impairments. Dr. Val Bee, Psy.D. noted Plaintiff

“appears capable of at least superficially appropriate and cooperative interaction” and

appeared “mentally capable of well structured task activity” if Plaintiff was “given some

additional assistance learning a new public transportation route and setting suitable

goals.” (R. 258.) Dr. Bee concluded Plaintiff had moderate restrictions in her activities

of daily living and moderate difficulties in maintaining concentration, persistence and

pace. (R. 252.) Similarly, Dr. Linda Abeles opined Plaintiff “may be capable of

obtaining and maintaining manual labor positions with appropriate medication

management.” (R. 240.) In sum, these opinions are consistent with Plaintiff’s mental

RFC, which limited Plaintiff to simple, routine, repetitive work tasks.

 Accordingly, for these reasons, the Court concludes that the ALJ did not err in

his evaluation of Plaintiff’s mental RFC.

B. The ALJ Erred in his Step Four Determination That Plaintiff Could

Perform Her Past Relevant Work

Plaintiff contends the ALJ erred at Step Four of the sequential analysis in finding

that Plaintiff could perform her past relevant work because Plaintiff did not have any

past relevant work. According to Plaintiff, all of her prior work experience took place

while she was in a special education community based instruction program and thus

constituted sheltered work. Further, Plaintiff points out the record reflects that none of

her previous work experience rose to the level of substantial gainful activity. The court

agrees that the ALJ erred by assuming that Plaintiff’s past work qualified as past

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relevant work, or at a minimum, because the ALJ never addressed the issue the Court

cannot determine on this record that the work identified by the ALJ as past relevant

work qualifies as such. In either case, reversal and remand is warranted.

At Step Four, the claimant bears the burden of demonstrating her or she cannot

return to his past relevant work. If a claimant's impairments do not prevent her from 22

performing past relevant work, she is not disabled. In order to constitute past relevant 23

work, the job must have been performed within a fifteen year period, must have lasted

long enough for the claimant to learn to do it, and must have been performed at a

substantial gainful activity level. 20 C.F.R. § 416.965(a). An individual's work will be

presumed to be substantial gainful activity if his monthly earnings averaged more than:

$500 for the years 1990 through 1999, $700 for the second half of 1999 and 2000,

$740 for 2001, $780 for 2002, $800 for 2003 and $810 for 2004. 20 C.F.R. §

416.974(b)(2)(i). A position in which the claimant’s earnings level surpasses the

monthly earnings threshold still may not qualify as substantial gainful activity, however,

if the work is performed in a sheltered workshop or special environment. 20 C.F.R. §

416.974(a)(2)-(3).

The ALJ in this case concluded at Step Four of the sequential analysis that

Plaintiff was not disabled because she could perform her past relevant work. In his

written decision the ALJ concluded at Step Four that Plaintiff had the RFC to “perform a

full range of work at all exertional levels but with the following nonexertional limitations:

Lucas v. Sullivan, 918 F.2d 1567, 1571 (11 Cir. 1990)(“The claimant also bears the initial

22 th

burden of proving that she is unable to perform her previous work.”).

20 C.F.R. § 404.1520(e).

23

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simple, routine, repetitive work tasks.” (R. 24.) Based upon the VE’s testimony, the

ALJ then determined Plaintiff was capable of performing her past relevant work as a

bagger and fast food worker, both as Plaintiff had performed those jobs as well as how

those jobs are generally performed. (R. 25-26.) 

 The ALJ never addressed whether Plaintiff’s jobs of bagger and fast food worker

constituted past relevant work and instead assumed these jobs qualified as past

relevant work even though the record of Plaintiff’s prior work experience evidences that

Plaintiff only made $1,561.91 in 1998, $2,862.00 in 2000, $1,910.65 in 2001 and

$793.44 in 2004 for total lifetime earnings of only $7,128.00, well below the threshold

amounts necessary for any of Plaintiff’s prior work positions to qualify as past relevant

work. (R. 91-95.) There is also an issue as to whether some of that work constituted

sheltered employment because it appears that the work was performed or occurred as

part of a community based instruction program that was an element of Plaintiff’s special

education program at Edgewater High School. (R. 186-88.) 

Apparently recognizing the problem the Commissioner candidly acknowledges

“that the evidence leaves some question as to whether Plaintiff performed her previous

jobs at the substantial gainful activity level, and whether those jobs therefore can be

considered past relevant work.” Doc. 19, p. 10. The Commissioner suggests, however,

that the Court should treat the ALJ’s Step Four error as harmless because the ALJ

posed complete hypotheticals to the VE and then went on to find at Step Five that

Plaintiff could perform certain positions which exist in substantial numbers in the

national economy. (Id.) A review of the ALJ’s decision does not support this

suggestion. The ALJ ended his analysis at Step Four and never went on to make a

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finding at Step Five that there were other jobs Plaintiff could perform that existed in

significant numbers in the national economy. Consequently, the ALJ’s error does not

constitute harmless error but rather would require the Court to conduct the Step Five

analysis and in essence engage in fact finding, which is inappropriate and is a matter

reserved for the administrative agency. The limited role of the Court in reviewing an

administrative decision of the Social Security Administration is to determine whether the

Commissioner’s decision is based upon the applicable legal principles and whether the

decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g). 

Accordingly, for these reasons, this case should be remanded with instructions to

the ALJ to (i) evaluate and determine whether Plaintiff has any past relevant work, (ii) if

Plaintiff does have past relevant work, whether she can perform any of that past

relevant work with her RFC, and (iii) if Plaintiff does not have past relevant work or she

cannot perform her past relevant work, to perform the required analysis at Step Five.

C. The ALJ Was Not Required To Include The Twenty Factors in the

Psychiatric Review Technique Form in his Hypothetical Questions

Plaintiff also contends the ALJ erred by posing hypothetical questions to the VE,

which did not include all of the Plaintiff’s mental impairments. Specifically Plaintiff

argues that the ALJ should have included the twenty factors contained in the

Commissioner’s Psychiatric Review Technique (“PRT”) form in the hypothetical

questions the ALJ posed to the VE. The Court disagrees.

Generally, when posing a hypothetical to a VE the ALJ is required to describe

Plaintiff’s educational level, age, work skills, experience, and all of Plaintiff’s

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impairments included in the RFC. The Social Security Administration’s regulations do 24

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. In

order for a response to a hypothetical question to constitute substantial evidence of

work available to the claimant (at Step Five), the question must set out all of the

claimant’s impairments. However, in posing a hypothetical question, the ALJ is not

25

required to include findings the ALJ properly rejects, nor must he accept the VE’s

responses to hypothetical questions that include unsupported allegations. 

26

In this case, the ALJ asked the VE if a hypothetical individual with a 12 grade th

education, with Plaintiff’s prior work experience, with no exertional limitations, and who

is limited to the performance of routine, repetitive work could perform any of Plaintiff’s

past relevant work. (R. 47.) The VE testified that in his opinion the hypothetical

individual could perform the jobs of short order cook, fast food worker and retail bagger. 

(Id.) The ALJ then further refined the occupational profile of the hypothetical individual

to include the restrictions of alternating positions from standing and sitting to walking

with little or no contact with the public. (Id.) The VE testified that an individual with

these additional restriction could not perform any of Plaintiff’s past relevant work but

could perform the positions of house sitter, odd piece checker, companion, and tube

operator. (R. 47-49.) 

The ALJ was not required to include the twenty factors from Section I of the PRT

Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999).

24

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

25 th

Wright v. Comm’r of Soc. Sec., 327 Fed. Appx. 135, 137 (11 Cir. 2009).

26 th

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in his hypotheticals to the VE. As explained in the Commissioner’s Program Operations

Manual System (“POMS”) , the twenty factors listed in Section I of the PRT, entitled 27

“MEDICAL SUMMARY,” are intended to be used as “merely a worksheet to aid in

deciding the presence and degree of functional limitations and the adequacy of the

documentation.” Instead, it is Section III, the “RATING OF FUNCTIONAL 28

LIMITATIONS”, which is used to record the actual mental RFC assessment and which

“adjudicators are to use as the assessment of RFC” in deciding whether an individual is

disabled. Therefore, an ALJ is not required to include the twenty factors listed in 29

Section I of the PRT in the ALJ’s hypotheticals to a VE.30

 In this case, the ALJ specifically reviewed the conclusions expressed by Drs. Val

Bee and Alejandro Vergara in Section III of the PRT’s completed by each doctor,

referenced those conclusions in formulating Plaintiff’s RFC and then stated he

concurred with those opinions and gave them “great weight.” (R. 24-25.) Accordingly,

the ALJ did not err in failing to include the twenty factors from Section I of the PRT

forms completed by Drs. Bee and Vergara in his hypotheticals to the VE, as he

specifically included each doctor’s medical opinion in the hypotheticals.

“While the POMS does not have the force of law, it can be persuasive.” Stroup v. Barnhart, 327

27

F.3d 1258, 1262 (11th Cir. 2003).

POMS § DI 24510.060(B)(2)(1).

28

Id. § DI 25025.010(B)(1).

29

Smith v. Comm’r of Soc. Sec, 631 F.3d 632, 636-37 (3d Cir. 2010).

30

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D. On Remand, the ALJ Must Sufficiently Account For Plaintiff’s

Moderate Limitation in Concentration, Persistence or Pace in the

ALJ’s Hypotheticals

Plaintiff also argues the ALJ erred in not explicitly including a moderate limitation

in concentration, persistence or pace in the ALJ’s hypotheticals despite the ALJ’s Step

Three determination that Plaintiff had moderate difficulties in concentration, persistence

or pace. Plaintiff contends this violated a recent Eleventh Circuit case, Winschel v.

Commissioner of Social Security, 631 F.3d 1176 (11 Cir. 2011). The ALJ will be th

directed to ensure that any hypotheticals the ALJ poses to the VE on remand properly

account for Plaintiff’s moderate limitation in concentration, persistence and pace in

accordance with Winschel.

Winschel instructs that if the ALJ determines Plaintiff has moderate difficulties in

concentration, persistence or pace, then the ALJ’s hypotheticals to the VE must

account for those difficulties. In accounting for those limitations, the ALJ should 31

include those limitations in the hypothetical or if the “medical evidence demonstrates

that [Plaintiff] can engage in simple, routine tasks or unskilled work” despite moderate 

limitations in concentration, persistence or pace the ALJ may account for the limitations

by limiting Plaintiff’s RFC to simple, routine tasks or unskilled work. Thus, on remand,

32

the ALJ should make a specific finding as to whether the record medical evidence

supports the conclusion that Plaintiff can engage in simple, routine tasks despite her

moderate limitations in concentration, persistence and pace. In the absence of such a

W inschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81 (11 Cir. 2011).

31 th

Id. at 1180.

32

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Case 1:11-cv-00071-MP-GRJ Document 20 Filed 04/03/12 Page 19 of 20
finding the ALJ cannot account for moderate difficulties in concentration, persistence

and pace by simply limiting Plaintiff to simple, routine tasks. 

V. RECOMMENDATION

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

the Commissioner should be REVERSED AND REMANDED pursuant to Sentence

Four of 42 U.S.C. § 405(g) to: (i) evaluate and determine whether Plaintiff has any past

relevant work; (ii) if Plaintiff does not have past relevant work or if she cannot perform

her past relevant work, the ALJ should perform the required analysis at Step Five to

determine whether Plaintiff can perform other work; and (iii) make a specific finding as

to whether Plaintiff’s moderate limitations in concentration, persistence or pace are

accounted for in the record medical evidence. 

IN CHAMBERS in Gainesville, Florida, on April 3, 2012.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

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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