                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 09-12674                  ELEVENTH CIRCUIT
                                                                  MAY 21, 2010
                            Non-Argument Calendar
                                                                   JOHN LEY
                          ________________________
                                                                    CLERK

                   D. C. Docket No. 07-01029-CV-J-16-TEM

TINA M. RICHTER,


                                                                Plaintiff-Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

                                                              Defendant-Appellee.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                 (May 21, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

     Tina Richter appeals the district court’s order affirming the Social Security
Administration’s (“SSA”) denial of her application for disability insurance benefits

and supplemental security income, 42 U.S.C. § 405(g). Although finding that

Richter had psychological impairments that produced moderate difficulties in the

ability to sustain concentration, persistence, or pace, the Administrative Law Judge

(“ALJ”) did not explicitly include these limitations in his hypothetical question

posed to the vocational expert. On appeal, Richter argues that this omission

constituted error. Thus, the vocational expert’s testimony, and the ALJ’s findings

relying on that opinion, that she had the ability to work in various unskilled jobs

and, therefore, was not disabled were not supported by substantial evidence. We

agree.

         In Social Security appeals, we review de novo the legal principles

underlying the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005). However, the Commissioner’s final decision regarding disability

is reviewed only for substantial evidence, which requires that the administrative

decision be based on “such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Id. Substantial evidence is “less than a

preponderance, but rather such relevant evidence as a reasonable person would

accept as adequate to support a conclusion.” Id. “This limited review precludes

deciding the facts anew, making credibility determinations, or re-weighing the



                                            2
evidence.” Id. (internal citation omitted).

      An individual claiming Social Security disability benefits bears the burden

to show that she is disabled. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.

2001). The ALJ uses a five-step process to determine whether a claimant has met

the burden of proving her disability: (1) the ALJ determines whether the claimant

is engaged in “substantial gainful activity;” (2) if not, the ALJ decides whether the

claimant’s condition or impairment is “severe”; (3) if so, the ALJ decides whether

the claimant’s impairment meets or equals the severity of the specified

impairments in the Listing of Impairments, thereby precluding any gainful work

activity; (4) if the claimant has a severe impairment that does not meet or equal the

severity of an impairment in the Listing of Impairments, the ALJ assesses a

claimant’s “residual functional capacity” (“RFC”), which measures whether a

claimant can perform past relevant work despite the impairment; and (5) if the

claimant is unable to do past relevant work, the ALJ determines whether, in light of

the claimant’s RFC, age, education, and work experience, the claimant can perform

other work in the national economy. See Phillips v. Barnhart, 357 F.3d 1232,

1237–39 (11th Cir. 2004). “If the claimant cannot make the adjustment to other

work, the ALJ will determine that the claimant is disabled.” Id. at 1239. Richter’s

appeal focuses on step five in the evaluation process: whether she can perform



                                              3
other work in the national economy.

        There are two avenues by the which the ALJ may determine whether the

claimant has the ability to adjust to other work in the national economy: by

applying the Medical Vocational Guidelines or by using a vocational expert. Id. at

1239–40. The ALJ here relied on the use of a vocational expert. When the ALJ

uses a vocational expert, the ALJ poses hypothetical questions to the vocational

expert to ascertain whether someone with the claimant’s previously-determined

limitations will be able to secure employment in the national economy. Id. at

1240.

        We have recognized that although hypothetical questions posed to a

vocational expert need not include all of a claimant’s symptoms, they must include

“all of the claimant’s impairments” or the vocational expert’s testimony cannot

constitute substantial evidence. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d

1253, 1270 (11th Cir. 2007). However, our circuit has never addressed the

question of whether a hypothetical question must specifically account for

documented limitations of “concentration, persistence, or pace.” Yet, a number of

our sister circuits have so held. See Ramirez v. Barnhart, 372 F.3d 546, 554 (3d

Cir. 2004); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 2003); Newton v.

Chater, 92 F.3d 688, 695 (8th Cir. 1996).



                                            4
      These courts have also rejected the argument raised by Commissioner in this

case that an ALJ generally accounts for a claimant’s deficiencies in concentration,

persistence, and pace by restricting the vocational expert’s inquiry to simple,

routine tasks or unskilled work. See Stewart v. Astrue, 561 F.3d 679, 684–85 (7th

Cir. 2009) (limiting hypothetical to simple, routine tasks does not account for

claimant’s moderate difficulties in maintaining concentration, persistence, and

pace); Ramirez, 372 F.3d at 554 (limiting hypothetical question to simple, one-to

two-step tasks does not account for deficiencies in concentration, persistence, or

pace); Newton, 92 F.3d at 695 (limiting hypothetical to simple jobs does not

account for moderate deficiencies in concentration, persistence, or pace).

However, where medical evidence demonstrates that a claimant retains the ability

to engage in simple, routine, repetitive tasks or unskilled work despite deficiencies

in concentration, persistence, and pace, our sister circuits have found that these

restrictions sufficiently account for such deficiencies. See Simila v. Astrue, 573

F.3d 503, 521 (7th Cir. 2009) (hypothetical adequately accounted for limitations in

concentration, persistence, or pace where it restricted vocational expert’s inquiry to

unskilled sedentary-level work, and claimant’s concentration limitations stemmed

solely from chronic back pain not aggravated by sedentary work); Stubbs-

Danielson v. Astrue, 539 F.3d 1169, 1174–76 (9th Cir. 2008) (restricting



                                           5
vocational expert’s inquiry to simple, routine, repetitive tasks accounted for

deficiencies where physician testified that despite claimant’s slow pace, she could

still “carry out simple tasks”); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.

2001) (restricting vocational expert’s inquiry to simple, routine, repetitive tasks

accounted for deficiencies of concentration, persistence, or pace where

psychologist determined that claimant could perform such tasks without severe

restrictions). Additionally, our sister circuits have held that hypothetical questions

adequately account for a claimant’s deficiencies in concentration, persistence, and

pace where they otherwise implicitly account for these deficiencies. See White v.

Commissioner of Social Sec., 572 F.3d 272, 288 (6th Cir. 2009) (hypothetical

adequately accounted for limitations in concentration, persistence, or pace where

ALJ referenced claimant’s inability to maintain attention and concentration);

Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (failure to expressly recite

limitations in concentration, persistence, or pace did not require remand where ALJ

specifically directed vocational expert to credit testimony of doctor testifying to

such deficiencies).

      In this case, the ALJ did not specifically include in the hypothetical question

any limitation regarding Richter’s deficiencies in maintaining concentration,

persistence, or pace, despite the ALJ’s finding that Richter had moderate



                                           6
limitations in this area. Rather, the hypothetical question restricted the vocational

expert’s inquiry to unskilled jobs and only referred to Richter’s moderate limitation

in the ability to remember, understand, and carry out detailed instructions. This

instruction did not adequately cover Richter’s limitations in concentration,

persistence, or pace for a variety of reasons.

      First, unlike in Thomas where the ALJ specifically directed the vocational

expert to credit the medical testimony about the claimant’s concentration,

persistence, and pace limitations in reaching his opinion, the ALJ here expressly

directed the vocational expert to only consider the limitations included in the

hypothetical question itself. Second, the record reflects that testifying

psychologists viewed limitations in the ability to remember, understand, and carry

out simple instructions differently from limitations related to concentration,

persistence, or pace, as Dr. Alvarez-Mullin noted that Richter was not limited in

the former but did have moderate limitations in her ability to maintain attention

and concentration for an extended period of time. Third, in contrast to the medical

evidence in Simila, Stubbs-Danielson, and Howard, two psychiatrists testifying to

Richter’s difficulties in concentration, persistence, and pace did not indicate that

despite these limitations she could perform simple, routine, repetitive tasks

characteristic of unskilled labor. Fourth, although the ability to complete simple



                                           7
tasks is encompassed by the unskilled limitation, a limitation to repetitive tasks is

not. See 20 C.F.R. § 404.1568(a) (2009). This is particularly relevant to Richter’s

impairments because each of the jobs found suitable for her by the vocational

expert (motel cleaner, assembler, and photograph mounter) require the

maintenance of a certain degree of pace and repetition. There is no indication that

the vocational expert or the ALJ considered whether Richter would still be able to

perform these jobs in light of her moderate deficiencies in concentration,

persistence, and pace.

       Finally, we find no merit in the Commissioner’s argument that deficiencies

identified in the context of filling out a Psychiatric Review Technique Form

(“PRTF”) under step two1 need not be included in an ALJ’s hypothetical question.

Although we have not addressed the precise issue of whether certain findings made

on a PRTF must also be included in an ALJ’s hypothetical, we have stated in

unequivocal terms that a hypothetical question to a vocational expert must include

all of a claimant’s impairments, Ingram, 496 F.3d at 1270, and our sister circuits

have rejected the same argument the Commissioner makes here, see Ramirez, 372

F.3d at 552 (PRTF findings of deficiencies of concentration, persistence, and pace


       1
               The Commissioner’s regulations specifically provide that the PRTF or functional
analysis contained therein must be completed before an ALJ makes the determination about
whether a mental impairment is or is not severe under step two. See, e.g., 20 C.F.R. §
404.1520a; see also Moore, 405 F.3d at 1213.

                                               8
constituted impairments that must be accounted for in the ALJ’s hypothetical

question); Kasarsky, 335 F.3d at 544 (same). Moreover, an ALJ is required to

incorporate the results of a PRTF into his findings and conclusions. 20 C.F.R. §

404.1520a-(e)(2); Moore, 405 F.3d at 1213–14.

      In sum, on this record, we conclude that the ALJ’s failure to include all of

Richter’s impairments in his hypothetical question was error. This error was not

harmless because the inquiry conducted by the vocational expert did not implicitly

account for Richter’s deficiencies in concentration, persistence, and pace.

Additionally, there is no medical evidence that, despite these limitations, Richter

nevertheless retained the ability to perform simple, repetitive, and routine tasks or

unskilled labor. Instead, there is some evidence that Richter would have a moderate

difficulty in this respect due to her psychiatric instability and anxiety-related

disorder. Consequently, the vocational expert’s testimony and the ALJ’s ultimate

finding that Richter was not disabled were unsupported by substantial evidence.

      Accordingly, we VACATE the judgment of the district court and REMAND

with instructions that the case be returned to the Commissioner for further

proceedings consistent with this opinion.

      VACATED AND REMANDED.                  2




      2
             Appellant’s request for oral argument is denied.

                                                 9
