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Brink v. Commr. S. S. A.

United States Court of Appeals, Ninth Circuit
Aug 18, 2009
343 F. App'x 211 (9th Cir. 2009)

Summary

holding that ALJ erred by including only the limitation to "simple, repetitive work" in a VE hypothetical after finding at step three that the claimant also had limitations in concentration, persistence, or pace; the VE hypothetical should have included both the limitation to "simple, repetitive work" and the limitation in concentration, persistence, or pace

Summary of this case from William N. v. Comm'r, Soc. Sec. Admin.

Opinion

No. 08-35331.

Submitted July 10, 2009.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed August 18, 2009.

James S. Coon, Esquire, Kimberly K. Tucker, Esquire, Swanson Thomas Coon, Portland, OR, for Plaintiff-Appellant.

Michael McGaughran, Esquire, Stephanie R. Martz, Esquire, Social Security Administration, Office of the General Counsel, Seattle, WA, Neil Evans, Assistant U.S., Office of the U.S. Attorney, Portland, OR, for Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. 6:06-cv-01177-HO.

Before: PREGERSON, RYMER and TASHIMA, Circuit Judges.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Daniel Brink ("Brink") appeals the denial of his application for Supplemental Security Income benefits. The parties are familiar with the facts, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and reverse.

We review the Commissioner of Social Security's ("the Commissioner's") denial of benefits de novo. Gillett-Netting v. Barnhart, 371 F.3d 593, 595 (9th Cir. 2004). We will affirm the Commissioner's decision if it is supported by substantial evidence and applies the correct legal standards. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

A hypothetical question posed to a vocational expert must "include all of the claimant's functional limitations, both physical and mental." Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995). Here, the administrative law judge ("ALJ") accepted medical evidence that Brink has moderate difficulty maintaining concentration, persistence, or pace. However, the ALJ's initial hypothetical question to the vocational expert referenced only "simple, repetitive work," without including limitations on concentration, persistence or pace. This was error.

The Commissioner's contention that the phrase "simple, repetitive work" encompasses difficulties with concentration, persistence, or pace is not persuasive. Indeed, repetitive, assembly-line work of the type described by the expert might well require extensive focus or speed. That the ALJ did not equate "simple, repetitive work" with work requiring concentration, persistence, or pace, is evinced by his subsequent hypothetical question incorporating "moderate to marked attention and concentration deficits." When the ALJ asked whether a claimant with moderate to marked attention and concentration deficits would be able to perform the simple, repetitive work described earlier, the vocational expert responded in the negative.

In Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), we held that an "assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with the restrictions identified in the medical testimony." Id. at 1174. The medical testimony in Stubbs-Danielson, however, did not establish any limitations in concentration, persistence, or pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that Brink does have difficulties with concentration, persistence, or pace. Stubbs-Danielson, therefore, is inapposite.

Although the ALJ accepted that Brink has moderate difficulty with concentration, persistence, or pace, he nevertheless concluded, contrary to the vocational expert's testimony, that Brink can perform certain light work. This conclusion was based on an incomplete hypothetical question, and is not supported by substantial evidence. The hypothetical question to the vocational expert should have included not only the limitation to "simple, repetitive work," but also Brink's moderate limitations in concentration, persistence, or pace.

Accordingly, we remand to the district court to remand to the Commissioner so that the ALJ can clarify his hypothetical and determine whether Brink is able to perform gainful employment in the national economy. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ("the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation") (internal quotation marks omitted).

REVERSED AND REMANDED.


Summaries of

Brink v. Commr. S. S. A.

United States Court of Appeals, Ninth Circuit
Aug 18, 2009
343 F. App'x 211 (9th Cir. 2009)

holding that ALJ erred by including only the limitation to "simple, repetitive work" in a VE hypothetical after finding at step three that the claimant also had limitations in concentration, persistence, or pace; the VE hypothetical should have included both the limitation to "simple, repetitive work" and the limitation in concentration, persistence, or pace

Summary of this case from William N. v. Comm'r, Soc. Sec. Admin.

holding an ALJ's initial hypothetical question to a vocational expert referencing only "simple, repetitive work" without including limitations on "concentration, persistence, or pace" was error

Summary of this case from Terrance C. v. Saul

holding that limiting a claimant to "simple, repetitive work" did not account for a claimant's moderate limitations in concentration, persistence, or pace

Summary of this case from Stiles v. Comm'r of Soc. Sec.

holding that an RFC and subsequent hypothetical of a claimant's ability to perform "simple, repetitive work" does not adequately encompass difficulties with concentration, persistence, or pace

Summary of this case from Merrill-Russell v. Comm'r of Soc. Sec. Admin.

holding that an "ALJ's findings must be consistent with the restrictions supported in the medical testimony"

Summary of this case from Lori G. v. Berryhill

holding a limitation to unskilled work in the RFC insufficient where the ALJ found moderate limitations in concentration, persistence and pace, and finding the ALJ was required to include the moderate limitations in the RFC and the hypothetical provided to the vocational expert

Summary of this case from Depew v. Colvin

holding that an "ALJ's findings must be consistent with the restrictions supported in the medical testimony"

Summary of this case from Cullen v. Colvin

holding that referencing "simple, repetitive work" without including other limitations on concentration, persistence, or pace was error and distinguishing Stubbs-Danielson

Summary of this case from Willard v. Colvin

holding that Stubbs-Danielson does not apply when the medical evidence establishes limitations as to concentration, persistence, or pace

Summary of this case from Nicholas v. Colvin

finding that "the ALJ's initial hypothetical question to the vocational expert referenc[ing] only 'simple, repetitive work,' without including limitations on concentration, persistence or pace . . . was error"

Summary of this case from Reyes v. Comm'r of Soc. Sec.

finding that "the ALJ's initial hypothetical question to the vocational expert referenc[ing] only 'simple, repetitive work,' without including limitations on concentration, persistence or pace . . . was error"

Summary of this case from Nicholl v. Berryhill

finding that Stubbs-Danielson does not apply when the medical evidence establishes and the ALJ accepts that the claimant has limitations with concentration, persistence, or pace

Summary of this case from King v. Berryhill

finding that a restriction to "simple, repetitive work" did not adequately capture the claimant's moderate restrictions as to concentration, persistence, or pace, as the repetitive assembly-line work addressed by the VE might require extensive focus and speed

Summary of this case from King v. Berryhill

finding that "the ALJ's initial hypothetical question to the vocational expert referenc[ing] only 'simple, repetitive work,' without including limitations on concentration, persistence or pace . . . was error"

Summary of this case from Staten v. Berryhill

finding that a more tailored hypothetical question presented to the VE by the ALJ demonstrated that the ALJ's RFC formulation, which was based on the less restrictive hypothetical question, did not account for the full extent of the plaintiff's impairments

Summary of this case from Snider v. Berryhill

finding ALJ erred where accepted medical testimony established moderate limitations in concentration, persistence, or pace was not included in hypothetical question to vocational expert

Summary of this case from Harris v. Comm'r Soc. Sec. Admin.

finding ALJ erred by not formulating a hypothetical to the VE that did not include all of Plaintiff's limitations, including those accounting for Plaintiff's testimony

Summary of this case from Dallas v. Comm'r of Soc. Sec. Admin.

finding the ALJ erred by failing to account for the claimant's difficulties with concentration, persistence, and pace after accepting medical evidence that the claimant had moderate difficulties in those areas

Summary of this case from Ellingson v. Berryhill

finding the ALJ erred by accepting that claimant had limitations as to concentration, persistence, or pace but failing to include such limitations in the RFC and hypothetical questions to vocational expert

Summary of this case from Scafidi v. Comm'r Soc. Sec. Admin.

finding the ALJ erred by accepting that claimant had limitations as to concentration, persistence, or pace but failing to include such limitations in the RFC and hypothetical questions to vocational expert

Summary of this case from Demers v. Comm'r Soc. Sec. Admin.

finding error where the ALJ accepted medical evidence that the claimant was moderately limited in maintaining concentration, persistence, or pace but referenced only "simple, repetitive work," in the RFC without including limitations on concentration, persistence or pace.

Summary of this case from Austin v. Berryhill

finding that the medical evidence in Stubbs-Danielson "did not establish any limitations in concentration, persistence, or pace"

Summary of this case from Rosas v. Colvin

finding the ALJ erred in limiting the plaintiff to simple and repetitive tasks because it did not adequately incorporate the plaintiff's moderate to marked limitations in concentration, persistence, and pace

Summary of this case from Viles v. Colvin

reversing an ALJ's opinion where the hypothetical limited the claimant to "simple, repetitive work," but should have also included the physician's opinion that the claimant had moderate limitations in concentration, persistence, or pace

Summary of this case from Wilder v. Comm'r Soc. Sec. Admin.

reversing ALJ's opinion where the hypothetical limited the claimant to "simple, repetitive work," but should have also included the physician's opinion that the claimant had moderate limitations in concentration, persistence, or pace

Summary of this case from Huggett v. Astrue
Case details for

Brink v. Commr. S. S. A.

Case Details

Full title:Daniel BRINK, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 18, 2009

Citations

343 F. App'x 211 (9th Cir. 2009)

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