                                                                                                                           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Precedential or Non-Precedential: Precedential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




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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

                                             -2-
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

                                                -7-
       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.
