Russell Hess, III v. Commissioner Social Security

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2226
_____________
RUSSELL HESS, III
v.
COMMISSIONER SOCIAL SECURITY,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-17-cv-01223)
District Judge: Hon. Wendy Beetlestone
_______________
Argued
January 24, 2019
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.
(Filed: July 30, 2019)
_______________
Jordana Cooper [ARGUED]
M. Jared Littman
Social Security Administration
Office of General Counsel SSA/OGC/Region III
300 Spring Garden Street – 6th Fl.
P.O. Box 41777
Philadelphia, PA 19123
Counsel for Appellant
Christopher J. Marzzacco
Thomas F. Meister [ARGUED]
Marzzacco Niven & Associates
1909 N. Front Street
2nd Fl., Ste. 1
Harrisburg, PA 17102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
This is a case about form and substance in decisions
about eligibility for social security benefits. The Appellee,
Russell Hess, III, invites us to give supremacy to form. While
form is not irrelevant in the scripted analytical steps called for
when determining if someone is disabled, Hess’s invitation
would lead to the hidebound circumstance in which an
Administrative Law Judge (“ALJ”) would have to “chant every
magic word correctly” or an otherwise thorough and well-
reasoned opinion “would have to be remanded[.]” United
States v. Hickman, 991 F.2d 1110, 1115 (3d Cir. 1993) (Roth,
2
J., concurring in part and dissenting in part). The law makes
no such demand. Cf. Biestek v. Berryhill, 139 S. Ct. 1148, 1157
(2019) (“Where Biestek goes wrong, at bottom, is in pressing
for a categorical rule[.] … The inquiry, as is usually true in
determining the substantiality of evidence, is case-by-case.”).
The ALJ who ruled on Hess’s application for social
security disability benefits concluded that Hess had “moderate
difficulties” in “concentration, persistence or pace,” but the
ALJ offered a detailed explanation for why she believed those
difficulties were not serious and why Hess was nevertheless
capable of performing simple tasks. (App. at 32.) Based on
that analysis, she found that Hess was “limited to jobs requiring
understanding, remembering, and carrying out only simple
instructions and making only simple work-related decisions[.]”
(App. at 33-34.) In a series of hypothetical questions meant to
include Hess’s limitations, she asked a vocational expert
whether there were jobs in the national economy available to
someone with those limitations. The expert said there were.
The ALJ thus decided that Hess was not disabled and rejected
his claim for benefits.
Hess then filed this lawsuit challenging the ALJ’s
decision. The District Court determined that the ALJ had erred
because, in the limitations she described in her hypothetical
questions to the vocational expert, she failed to include or
account for her finding that Hess had “moderate” difficulties
in “concentration, persistence, or pace.” Accordingly, the
Court ordered the case remanded to the ALJ.
The government now appeals. It argues that an ALJ’s
statement of a limitation confining a person to “simple
tasks” – like the limitation statement at issue here – is
3
permissible after a finding of “moderate” difficulties in
“concentration, persistence, or pace,” if the ALJ offers a “valid
explanation” for it. According to the government, the
explanation given by the ALJ in this case was “valid,” and the
District Court failed to give it due consideration. We agree
and, for the reasons that follow, will remand the case to the
District Court with instructions to enter judgment for the
government.
I. BACKGROUND
A. The Social Security Disability Determination
Methodology
Social security cases can be complex, in part because of
the labyrinthine regulatory structure that governs them. The
matter before us involves the part of that structure controlling
disability determinations.
The Social Security Administration, working through
ALJs, decides whether a claimant is disabled by following a
now familiar five-step analysis. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2016).1 The burden of proof is on the claimant
at all steps except step five, where the burden is on the
Commissioner of Social Security. Smith v. Comm’r of Soc.
Sec., 631 F.3d 632, 634 (3d Cir. 2010). The analysis proceeds
as follows:
1
In this opinion, we cite to the edition of the Code of
Federal Regulations in force at the time of the ALJ’s decision
in this case. There have been changes to social security
regulations since that time, but those changes do not affect our
analysis, and neither party contends that they should.
4
At step one, the ALJ determines whether the claimant is
performing “substantial gainful activity[.]” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, he is not
disabled. Id. Otherwise, the ALJ moves on to step two.
At step two, the ALJ considers whether the claimant has
any “severe medically determinable physical or mental
impairment” that meets certain regulatory requirements. Id.§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A “severe
impairment” is one that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” Id.
§§ 404.1520(c), 416.920(c). If the claimant lacks such an
impairment, he is not disabled. Id. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If he has such an impairment, the ALJ
moves on to step three.
At step three, the ALJ decides “whether the claimant’s
impairments meet or equal the requirements of an impairment
listed in the regulations[.]” Smith, 631 F.3d at 634. If the
claimant’s impairments do, he is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If they do not, the
ALJ moves on to step four.
At step four, the ALJ assesses the claimant’s “residual
functional capacity” (“RFC”) and whether he can perform his
“past relevant work.”2 Id. §§ 404.1520(a)(4)(iv),
2
There is some ambiguity in the case law as to whether
RFC is assessed at step four or at the end of step three.
Compare Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)
(“Before moving to step four, the ALJ must determine a
claimant’s residual functional capacity[.]”), with Moon v.
5
416.920(a)(4)(iv). A claimant’s “[RFC] is the most [he] can
still do despite [his] limitations.” Id. §§ 404.1545(a)(1),
416.945(a)(1). If the claimant can perform his past relevant
work despite his limitations, he is not disabled. Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If he cannot, the
ALJ moves on to step five.
At step five, the ALJ examines whether the claimant
“can make an adjustment to other work[,]” considering his
“[RFC,] … age, education, and work experience[.]” Id.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That examination
typically involves “one or more hypothetical questions posed
by the ALJ to [a] vocational expert.” Podedworny v. Harris,
745 F.2d 210, 218 (3d Cir. 1984). If the claimant can make an
adjustment to other work, he is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If he cannot, he is
disabled.
When, as in this instance, mental impairments are at
issue, additional inquiries are layered on top of the basic five-
step disability analysis. Id. §§ 404.1520a(a), 416.920a(a). An
ALJ assesses mental impairments in the following way.
Colvin, 763 F.3d 718, 720 (7th Cir. 2014) (“[T]he ALJ was
required to determine [the claimant’s] ‘residual functional
capacity’ at step four.”). The ALJ treated it as an intermediate
step between steps three and four. (See infra n.5.) We
acknowledge that the social security regulations state that,
“[b]efore [the ALJ] go[es] from step three to step four, [he]
assess[es] [the claimant’s] residual functional capacity.” 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). But, because we find
it simpler to consider the RFC assessment with step four, we
will treat the RFC assessment as part of step four.
6
As part of step two of the disability analysis, the ALJ
decides whether the claimant has any “medically determinable
mental impairment(s).” Id. §§ 404.1520a(b)(1),
416.920a(b)(1); see also id. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii) (providing that, at step two, the ALJ
determines whether the claimant has “a severe medically
determinable physical or mental impairment”). Then, as part
of that same step and also step three of the disability analysis,
the ALJ determines “the degree of functional limitation
resulting from the impairment(s)[.]” Id. §§ 404.1520a(b)(2),
416.920a(b)(2); see also id. §§ 404.1520a(d), 416.920a(d),
404.1520(a)(4)(ii)-(iii), 416.920(a)(4)(ii)-(iii) (explaining that
the ALJ uses “the degree of functional limitation” in assessing
“the severity of [the claimant’s] mental impairment(s)[,]”
which is considered at steps two and three). The ALJ does so
in “four broad functional areas … : Activities of daily living;
social functioning; concentration, persistence, or pace; and
episodes of decompensation.” Id. §§ 404.1520a(c)(3),
416.920a(c)(3). The first three of those areas are rated on a
“five-point scale: None, mild, moderate, marked, and
extreme.” Id. §§ 404.1520a(c)(4), 416.920a(c)(4). The fourth
is rated on a scale of: “None, one or two, three, four or more.”
Id.
The ALJ uses that degree rating in “determin[ing] the
severity of [the] mental impairment(s)[,]” which is considered
at steps two and three. Id. §§ 404.1520a(d), 416.920a(d); see
also id. §§ 404.1520(a)(4)(ii)-(iii), 416.920(a)(4)(ii)-(iii)
(stating that, at steps two and three, the ALJ “consider[s] the
medical severity of [the claimant’s] impairment(s)”).
“If … the degree of [the claimant’s] limitation in the first three
functional areas [is] ‘none’ or ‘mild’ and ‘none’ in the fourth
7
area, [the ALJ] will generally conclude that [the claimant’s]
impairment(s) is not severe, unless the evidence otherwise
indicates that there is more than a minimal limitation in [his]
ability to do basic work activities.” Id. §§ 404.1520a(d)(1),
416.920a(d)(1) (citation omitted).
At step three, if the ALJ has found that a mental
impairment is severe, he “then determine[s] if it meets or is
equivalent in severity to a listed mental disorder.” Id.
§§ 404.1520a(d)(2), 416.920a(d)(2); see also id.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) (explaining that, at
step three, the ALJ determines whether the claimant has “an
impairment(s) that meets or equals” a listed impairment). That
analysis is done “by comparing the medical findings about [the
claimant’s] impairment(s) and the rating of the degree of
functional limitation to the criteria of the appropriate listed
mental disorder.” Id. §§ 404.1520a(d)(2), 416.920a(d)(2).
For example, the claimant may have the equivalent of a listed
impairment if, inter alia, he has at least two of “1. Marked
restriction of activities of daily living; or 2. Marked difficulties
in maintaining social functioning; or 3. Marked difficulties in
maintaining concentration, persistence, or pace; or 4. Repeated
episodes of decompensation, each of extended duration[.]” Id.
Pt. 404, Subpt. P, App. 1.
Finally, to complete steps four and five of the disability
analysis, if the ALJ has found that the claimant does not have
a listed impairment or its equivalent, the ALJ “will then assess
[the claimant’s mental RFC].” Id. §§ 404.1520a(d)(3),
416.920a(d)(3); see also id. §§ 404.1520(a)(4)(iv)-(v),
416.920(a)(4)(iv)-(v) (providing that, at steps four and five, the
ALJ considers the claimant’s RFC).
8
With that regulatory framework in mind, we turn to the
details of the case before us.
B. Factual and Procedural Background
1. Hess’s Social Security Application and
the ALJ’s Opinion
In August 2013, Hess applied for social security
disability benefits. After a hearing, the ALJ denied his claims.
Her decision was based on her conclusion that Hess was not
disabled within the meaning of the applicable regulations. In
reaching that conclusion, she followed the five-step disability
analysis just outlined.
The ALJ’s reasoning and the findings she made are
central to this case. Consequently, we describe the relevant
portions of her opinion in detail. As to step one, however, it is
sufficient to simply note that the ALJ determined Hess was not
engaged in substantial gainful activity.
At step two, the ALJ found that Hess had multiple
“severe impairments[.]” (App. at 30.) Specifically, she said
that Hess suffered from:
major depressive disorder single episode-mild,
depressive disorder not otherwise specified,
bipolar disorder, posttraumatic stress disorder,
history of conduct disorder and impulse control
disorder, personality disorder not otherwise
specified with antisocial tendencies,
osteoarthritis and degenerative joint disease of
the right ankle, cervical degenerative disc
9
disease, chronic pain disorder and history of
opioid abuse and dependence.
(App. at 30-31 (citations omitted).)3
At step three, the ALJ found that Hess’s mental
impairments did not meet the standards for a “listed
impairment[.]” (App. at 31.) In making that finding, she rated
Hess in the four areas of mental functional limitation.4 As to
“concentration, persistence or pace” – the area of functional
limitation at issue here – she concluded that Hess had
“moderate difficulties.” (App. at 32.) She reasoned that,
although a state psychological consultant had rated Hess as
having “not … more than mild limitation in this area of
functioning,” that opinion was inconsistent with the record,
including that Hess had been “diagnosed with mental health
impairments, was in mental health treatment, and was
prescribed mental health medications.” (App. at 32, 37.)
The ALJ clarified, however, that she did not consider
Hess’s “moderate”-level difficulties in “concentration,
persistence, or pace” to be so serious that he could not perform
simple tasks. In her words:
3
Only the impairments that affect Hess’s mental
capabilities are at issue now.
4
As earlier noted, those are “[a]ctivities of daily living;
social functioning; concentration, persistence, or pace; and
episodes of decompensation.” 20 C.F.R. §§ 404.1520a(c)(3),
416.920a(c)(3).
10
[Hess’s] self-reported activities of daily living,
such as doing laundry, taking care of his personal
needs, shopping, working, and paying bills
(when he has money), … are consistent with an
individual who is able to perform simple, routine
tasks. Furthermore, progress notes from treating
and examining sources generally indicate no
serious problems in this area of functioning,
reporting that [Hess] could perform simple
calculations, was fully oriented, and had intact
remote/recent memory.
(App. at 32 (citations omitted).) The “self-reported activities
of daily living,” as referenced by the ALJ, were described more
fully as follows:
[Hess] reported he could care for his own
personal needs and grooming, do laundry
(although he needs help carrying the basket),
clean, use public transportation, attend
appointments, work part time, and go shopping
in stores. [Hess] also pays bills (when he has
money), counts change, and uses money orders.
[Hess] testified that he works three days a week
for five to six hours as a dishwasher, and he
keeps track of the pantry items, checking for
empty boxes and out of date food items.
(App. at 32 (citations omitted).)
11
At step four, the ALJ performed an RFC assessment.5
She decided that Hess was “limited to jobs requiring
understanding, remembering, and carrying out only simple
instructions and making only simple work-related decisions[.]”
(App. at 33-34.) In selecting that limitation, the ALJ engaged
in a detailed examination of the record, from which she
concluded that Hess’s mental difficulties were such that he was
capable of performing simple tasks.
The ALJ first noted that Hess’s self-reported symptoms
could “reasonably be expected” to flow from his “medically
determinable impairments[.]” (App. at 34.) Those symptoms
included “trouble with concentration and completing
tasks[,] …. trouble with written and verbal
instructions[,] … [inability to] handle stress very
well[,] …. racing thoughts, a lot of scrambled thoughts, and
trouble sleeping.” (App. at 34 (citations omitted).) The ALJ
found, however, that his “statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not
entirely consistent with the medical evidence and other
evidence in the record[.]” (App. at 34-35.)
To support that finding, and to evaluate Hess’s
capabilities more generally, the ALJ analyzed each source of
relevant evidence. Specifically, she looked to mental status
examinations and reports, opinion evidence, Hess’s Global
Assessment of Functioning (“GAF”) scores, his mental health
5
More precisely, as earlier noted (supra n.2), the ALJ
viewed the RFC assessment as an intermediate step between
steps three and four. As also noted, however, we will treat the
RFC assessment as an element of step four.
12
treatment history, his activities of daily living, and a report by
one of Hess’s longtime friends.
Regarding the evidence from mental status
examinations and reports, the ALJ recognized that Hess had
“numerous mental health diagnoses” and was “intermittently
engaged in formal mental health treatment, including therapy
and psychotropic medications.” (App. at 35 (citations
omitted).) Nevertheless, she decided that the evidence showed
that Hess was not seriously limited and he was capable of
functioning effectively. For example, an October 2013 mental
status examination revealed that Hess “was not currently
taking any psychotropic medications”; “had fair hygiene and
grooming, good eye contact, a pleasant and friendly attitude, a
cooperative attitude, goal directed thought processes, no
delusions or paranoia, appropriate affect, neutral mood, full
orientation, adequate recent/remote memory, and adequate
impulse control”; and “could perform simple mathematical
calculations.” (App. at 36 (citation omitted).) Likewise, a
February 2014 mental status examination showed that Hess
had “appropriate dress and grooming, cooperative attitude,
good eye contact, normal speech, goal directed thought
processing, full orientation, and no suicidal and homicidal
ideations.” (App. at 36 (citation omitted).) Furthermore, an
August 2015 mental status examination demonstrated “neat
and clean hygiene and grooming, a cooperative attitude,
normal speech, full orientation, and normal memory.” (App.
at 36 (citations omitted).) Additionally, the ALJ noted that
records from a period of close observation that Hess had in
2014 did “not contain any references to psychologically based
problems[.]” (App. at 36.)
13
The ALJ acknowledged that a March 2015 mental status
examination “allude[d] to an inability to work,” as well as “a
depressed mood and poor insight/judgment[.]” (App. at 36,
38.) But she assigned “[a]ny report of an inability to
work … little weight” because it was inconsistent with the
record, the examination itself contained “no function by
function opinion on th[at] issue,” and Hess’s inability to work
was self-reported. (App. at 38.) Moreover, the examination
was not all negative. It revealed “fair hygiene, fair eye contact,
a cooperative attitude, normal speech, a calm affect, full
orientation, and goal directed thought processing.” (App. at
36.)
Moving on to the opinion evidence, the ALJ similarly
found that it showed Hess’s mental difficulties left him capable
of engaging in simple work. For example, she explained that
Dr. Schwartz, a psychologist, opined that Hess “had ‘mild’
limitations in his ability to understand and remember simple
instructions[,]” had “‘moderate’ limitations in his ability to
carry out simple instructions[,]” “could perform simple,
unskilled work with additional restrictions in social and
adaptive functioning[,]” and had “‘marked’ limitations in his
ability to respond appropriately to usual work pressures or
changes in a routine work setting.” (App. at 36-37 (citation
omitted).) The ALJ assigned most of that opinion “great
weight[,]” but she gave “little weight” to the conclusion that
Hess had “marked” limitations because it was inconsistent with
the record generally and with a mental status examination
Dr. Schwartz himself had performed, and because it was
“based predominantly upon [Hess’s] subjective complaints[.]”
(App. at 37.)
14
The ALJ also examined the opinion of a “treating
mental health provider[,]” who said that Hess “could perform
simple unskilled work but had ‘marked’ limitations in … his
ability consistently to concentrate, persist, and keep pace in a
routine work setting.” (App. at 37 (citation omitted).) The ALJ
again rejected the “marked” rating as inconsistent with the
record. In doing so, she noted that Hess “was able to work
part-time as a dishwasher and tolerate [a period of structured
supervision] without any reports of behavioral issues or
problems completing tasks.” (App. at 37.) She further
highlighted the mental status examinations – which “regularly
and routinely described [Hess] as cooperative and calm, having
normal speech, full orientation, and logical thought
processes” – and observed that the record did “not contain
frequent references to fatigue, anhedonia, or staying in bed all
day.” (App. at 37.)6
As to Hess’s GAF scores, the ALJ also deemed them
not to be indicative of significant mental health difficulties.
She acknowledged that Hess received “scores ranging from
serious symptoms to moderate symptoms.” (App. at 36
(citations omitted).) But, she gave the GAF scores reflecting
more serious symptoms “little weight” because they were “not
consistent with the underlying mental status examinations[,]”
Hess’s “own reported daily activities[,]” and “the record as [a]
whole that did not reveal frequent or regular serious
symptoms.” (App. at 37-38 (citations omitted).) Additionally,
the ALJ explained that Hess’s “most recent
6
The ALJ additionally considered the state
psychological consultant’s opinion referenced in our
discussion of step three above, to which, as noted there, she
gave little weight.
15
scores … indicat[ed] that [Hess] was experiencing moderate
work-related mental health symptoms.” (App. at 36 (citations
omitted).) She assigned the GAF scores reflecting less serious
symptoms “great weight” because they were “more consistent
with the record” and more accurately captured Hess’s “overall
functioning.” (App. at 38 (citations omitted).) In doing so, the
ALJ again cited the mental status examinations, which
“revealed few serious symptoms,” the fact that Hess was “able
to work part time as a dishwasher,” and records from close
observation that “did not reveal any serious behavioral
issues[.]” (App. at 38.)
Regarding Hess’s mental health treatment history, the
ALJ reasoned that it neither supported the claimed severity
level of Hess’s symptoms nor suggested that he was unable to
perform simple tasks. She said that Hess was “not always
compliant with treatment … and ha[d] been discharged from
treatment due to non-compliance”; “experienced short
hospitalizations” in 2013 and 2015 “due in part to narcotics
misuse and heroin addiction”; and “was not fully engaged in
substance abuse treatment until” 2015. (App. at 36.) She
noted, though, that Hess was then in a treatment program that
began in August 2015, had been compliant with that treatment,
and his symptoms had improved.
Turning to Hess’s daily activities, the ALJ likewise
found that those activities were not suggestive of symptoms as
serious as Hess claimed, and that they instead demonstrated an
ability to engage in simple work. As part of the RFC analysis,
the ALJ reiterated what she had earlier said at step three
concerning Hess’s daily activities; namely, that Hess “takes
care of his own personal needs and grooming, does
laundry[,] … cleans, uses public transportation, attends
16
appointments, works part time, … goes shopping in stores[,]
…. pays bills (when he has money), counts change, … uses
money orders[,] …. [w]orks three days a week for five to six
hours as a dishwasher, and … keeps track of the pantry items
checking for empty boxes and out of date food items.” (App.
at 36-37 (citations omitted).)
Finally, the ALJ reviewed a report by a longtime friend
of Hess’s stating that Hess “could cook daily, play computer
games, pay bills, follow instructions good, pay attention for a
long time, go shopping in stores, use public transportation, and
take care of his own personal needs and grooming.” (App. at
38 (citation omitted).) The ALJ assigned that report “partial
weight insofar as it [was] consistent with the record as a
whole[.]” (App. at 38.)
The ALJ ultimately concluded that she had discerned
“appropriate limitations” to account for Hess’s “mental
impairments” and that those “impairments and the restrictions
caused by them would not prevent him from performing
sedentary, unskilled work as defined … in the [RFC].” (App.
at 38-39.) She said that her RFC determination was based on
her findings as to Hess’s functional limitations (e.g., as to
“concentration, persistence, or pace”) and “all the evidence
with consideration of the limitations and restrictions imposed
by the combined effects of all [of Hess’s] medically
determinable impairments[.]” (App. at 34.) She particularly
cited the mental status examinations, “the objective medical
evidence … [Hess’s] non-compliance [with treatment], the
opinion evidence, and [Hess’s] activities of daily
living.” (App. at 38.)
17
At step five,7 the ALJ found that there were “jobs … in
significant numbers in the national economy that [Hess could]
perform” and, thus, she concluded that Hess was not disabled.
(App. at 39.) She based that conclusion on answers to
hypothetical questions she posed to a vocational expert about
whether there were jobs “in the national economy for an
individual with [Hess’s] age, education, work experience, and
[RFC].” (App. at 40.) [App. at 40, 43-45.]
2. Hess’s Lawsuit and the District Court’s
Decision
After the ALJ denied his claim for disability benefits,
Hess appealed to the Social Security Administration Appeals
Council, which denied his request for review. Accordingly, the
ALJ’s decision became the final decision of the Commissioner
of Social Security. Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 359 (3d Cir. 2011). Hess then filed suit to challenge that
decision, pursuant to 42 U.S.C. § 405(g).8
7
The ALJ moved on to step five because she found that
Hess could not perform his “past relevant work[.]” (App. at
39.) That finding was based on all of Hess’s limitations,
including those not at issue here.
8
Section 405(g) provides, in relevant part, “Any
individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review
of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within
such further time as the Commissioner of Social Security may
allow.” 42 U.S.C. § 405(g).
18
The case was referred to a Magistrate Judge, who wrote
a Report and Recommendation (“R&R”) in Hess’s favor.
According to the Magistrate Judge, the ALJ’s decision was
inadequate because she failed to “include in her RFC
assessment, or in any hypothetical relied upon, her finding that
[Hess] has [a] moderate limitation in maintaining
concentration, persistence or pace” and “did not otherwise
account for this finding in her RFC assessment or in any
hypothetical question.” (App. at 19.) That, the Magistrate
Judge said, ran afoul of our decision in Ramirez v. Barnhart,
372 F.3d 546 (3d Cir. 2004), which the Judge understood to
hold “that, when an ALJ finds that a claimant has [a moderate]
degree of limitation in maintaining concentration, persistence
or pace, she must include this limitation in any hypothetical
question posed to a [vocational expert] that the ALJ wishes to
rely upon” and “that this degree of limitation must be reflected
in the RFC assessment.” (App. at 19.) The Magistrate Judge
otherwise rejected all of Hess’s challenges to the ALJ’s
decision.
The District Court approved and adopted the R&R. In
doing so, it made some additional comments about the case.
The Court explained that Ramirez “reiterated that a
hypothetical must account for all of an applicant’s
impairments” and “disapproved of a hypothetical restricting an
applicant’s potential work to ‘simple tasks’ when an ALJ also
finds that the applicant ‘often’ has deficiencies in
concentration, persistence, or pace.” (App. at 7 n.1 (citation
omitted).) It observed that, here, “the ALJ did not incorporate
her finding of a ‘moderate’ limitation in concentration,
persistence, or pace in a hypothetical she posed to the
vocational expert” but rather “asked the vocational expert if a
19
person ‘limited to jobs requiring understanding, remembering,
and carrying out only simple instructions making only simple,
work related decisions …’ could perform a job in the national
economy.” (App. at 7 n.1.) The District Court concluded, in
line with the Magistrate Judge’s R&R, that the ALJ had
violated Ramirez and the case must be remanded for further
administrative proceedings.9
The government timely appealed.
II. DISCUSSION10
The somewhat complicated question on appeal is
whether the ALJ’s limitation of Hess “to jobs requiring
understanding, remembering, and carrying out only simple
instructions and making only simple work-related decisions[,]”
as noted in the RFC determination at step four of the disability
9
The District Court also noted that “three unreported
Third Circuit cases have held that a hypothetical restricting an
applicant to simple tasks is sufficient even where an ALJ has
determined that the applicant possesses moderate difficulties in
concentration, persistent [sic] or pace[,]” but it determined
those decisions to be inconsistent with Ramirez. (App. at 7
n.1.)
10
The District Court had jurisdiction under 42 U.S.C.
§ 405(g). We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. “We exercise plenary review over legal conclusions
reached by the Commissioner[,]” and “[w]e review the
Commissioner’s factual findings for ‘substantial evidence[.]’”
Chandler, 667 F.3d at 359 (citation omitted).
20
analysis and in the resulting hypothetical questions to the
vocational expert at step five, was permissible in light of her
finding, at step three, of “moderate difficulties” in
“concentration, persistence or pace[.]”11 (App. at 32-34.) The
government argues that that limitation was acceptable because
the ALJ offered a “valid explanation” for it. Hess responds
that such a limitation is forbidden by Ramirez, after a finding
of “moderate” difficulties in “concentration, persistence, or
pace.” The government’s position is correct, and the District
Court should not have disturbed the ALJ’s decision.
A. The Functional Limitation Findings Do Not
Require Particular Language to Appear in
the Statement of the Limitation
The parties argue over whether an ALJ must use
specific words in stating a limitation that will be employed at
steps four and five of the disability analysis, based on the
functional limitation findings at steps two and three, such as a
finding of “moderate” difficulties in “concentration,
persistence, or pace.” The government says that an ALJ need
not do so. Hess responds that “the hypothetical posed to the
vocational [expert] and the ALJ’s RFC assessment must
incorporate all of the claimant’s limitations supported by the
11
Here, the ALJ’s statement of Hess’s limitation was
the same in the RFC and in the hypothetical questions. That is
frequently the case. Cf. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v) (stating that an ALJ considers the claimant’s
RFC at step five). In this opinion, therefore, we often refer to
the limitation language in the RFC and hypothetical questions
collectively as the ALJ’s stated “limitation.”
21
medical record.” (Answering Br. at 6.) But the parties are
talking past each other, and both are correct.
It is true, as the government contends, that no
incantations are required at steps four and five simply because
a particular finding has been made at steps two and three.
Those portions of the disability analysis serve distinct purposes
and may be expressed in different ways. When mental health
is at issue, the functional limitation categories are “used to rate
the severity of mental impairment(s)[.]” SSR 96-8P, 1996 WL
374184, at *4 (July 2, 1996). While obviously related to the
limitation findings, the RFC is a determination of “the most [a
claimant] can still do despite [his] limitations” “based on all
the relevant evidence in [the] case record.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1); SSR 96-8P, at *2. It
“requires a more detailed assessment [of the areas of functional
limitation] by itemizing various functions contained in the
broad [functional limitation] categories[.]” SSR 96-8P, at *4.
And, unlike the findings at steps two and three, the RFC “must
be expressed in terms of work-related functions[,]” such as by
describing the claimant’s “abilities to: understand, carry out,
and remember instructions; use judgment in making work-
related decisions; respond appropriately to supervision, co-
workers and work situations; and deal with changes in a routine
work setting.” Id. at *6. In short, the findings at steps two and
three will not necessarily translate to the language used at steps
four and five.
Additionally, and perhaps more importantly, social
security regulations permit, and indeed require, an ALJ to offer
“a narrative discussion describing how the evidence supports
each” limitation at step four of the disability analysis. Id. at
*7. That suggests a wide range of limitation language is
22
permissible, regardless of what the ALJ found at earlier steps
of the analysis, so long as the chosen limitation language is
explained.
Nevertheless, as Hess maintains, the statement of a
limitation does need to reflect the claimant’s particular
impairments, including those embodied in the functional
limitation findings. “In assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe.’” Id.
at *5; see also 20 C.F.R. §§ 404.1545(c), 416.945(c)
(explaining that a mental RFC assessment must begin with an
examination of “the nature and extent of [the claimant’s]
mental limitations and restrictions”). And, again, although
steps two and three differ from steps four and five, the
functional limitation findings are plainly relevant to an ALJ’s
statement of the claimant’s limitation at the later steps because
they involve the claimant’s actual impairments. Cf. SSR 96-
8P, at *4 (“The mental RFC assessment used at steps 4 and 5
of the sequential evaluation process requires a more detailed
assessment [of the areas of functional limitation] by itemizing
various functions contained in the broad [functional limitation]
categories[.]”).
Our case law supports the conclusion that the findings
at steps two and three are important to the ALJ’s statement of
a claimant’s limitation but do not require the use of any
particular language. In Ramirez, we said:
We cannot concur in the Commissioner’s
[position that the functional limitation findings
are relevant only at steps two and three of the
disability analysis]. While [the pertinent
23
regulation] does state that the [functional
limitation] findings are “not an RFC assessment”
and that step four requires a “more detailed
assessment,” it does not follow that the
[functional limitation findings] play no role in
steps four and five[.]
372 F.3d at 555. We clarified, however, that those findings
need only be “adequately conveyed” in the ALJ’s statement of
the limitation, not recited verbatim. Compare id. at 552 n.2
(observing that the claimant was arguing “that all of a
claimant’s limitations must be adequately conveyed in the
hypothetical[,]” not, as the government suggested, that
functional limitation findings must be stated “verbatim in the
hypothetical”), with id. at 554 (“[The ALJ’s chosen]
limitations do not adequately convey all of [the claimant’s]
limitations.” (emphasis added)).12
In short, the functional limitation findings do not dictate
the terms of the ALJ’s statement of the claimant’s limitation in
the final analytical steps. But those findings are relevant to that
statement of the limitation, which must be sufficient to reflect
all of a claimant’s impairments.
12
We did say in Ramirez that “we hold that the ALJ’s
hypothetical did not adequately capture and recite all of [the
claimant’s] mental impairments and the limitations caused by
those impairments.” 372 F.3d at 555 (emphasis added). As
demonstrated by the quoted language above, however, in the
context of our opinion, “capture and recite” meant “adequately
convey.”
24
B. A “Simple Tasks” Limitation Is Appropriate
After a Finding of “Moderate” Difficulties in
“Concentration, Persistence, or Pace,” if a
“Valid Explanation” Is Given
The next issue is whether a “simple tasks” limitation,
like the one stated by the ALJ here, can be said to fairly reflect
a claimant’s impairments when that claimant has been found
to face “moderate” difficulties in “concentration, persistence,
or pace.” The government argues that such a statement of the
limitation is acceptable, if an ALJ provides a “valid
explanation.” Hess responds that, under Ramirez, “a limitation
to simple instructions and simple work-related decisions does
not reflect a claimant’s moderate restrictions in concentration,
persistence, or pace.” (Answering Br. at 7-8.) We agree with
the government.
1. The ALJ Chose a “Simple Tasks”
Limitation
Before reaching the merits of this issue, we must
address one preliminary matter. Both parties treat the
limitation here – “to jobs requiring understanding,
remembering, and carrying out only simple instructions and
making only simple work-related decisions[,]” (App. at 33-
34) – as equivalent to a limitation to “simple tasks.” That is
important because the case law they rely upon generally
involves so-called “simple tasks” limitations.
We agree with their interpretation of the ALJ’s framing
of the limitation. A limitation to “simple tasks” is
fundamentally the same as one “to jobs requiring
understanding, remembering, and carrying out only simple
25
instructions and making only simple work-related decisions[.]”
(App. at 33-34;) see Davis v. Berryhill, 743 F. App’x 846, 850
(9th Cir. 2018) (treating “understanding, remembering, and
carrying out only simple instructions” as equivalent to “simple
tasks”); Richards v. Colvin, 640 F. App’x 786, 790 (10th Cir.
2016) (referring to a limitation “to understanding,
remembering, and carrying out only simple instructions and
making only simple work-related decisions” as a “simple-work
limitation[]”). Indeed, both formulations – the ALJ’s and the
more concise phrase “simple tasks” – relate to mental abilities
necessary to perform “unskilled work.” See 20 C.F.R.
§§ 404.1568(a), 416.968(a) (“Unskilled work is work which
needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.”); SSR 96-9P, 1996
WL 374185, at *9 (July 2, 1996) (concluding that “unskilled
work” requires “[u]nderstanding, remembering, and carrying
out simple instructions” and “[m]aking … simple work-
related decisions”); cf. Richards, 640 F. App’x at 790 (treating
“simple-work limitations” as similar to “unskilled work”
limitations). So the parties’ reliance on case law related to
“simple tasks” is appropriate and helpful.
2. Only a “Valid Explanation” Is
Required
Turning to the merits, the government is correct that, as
long as the ALJ offers a “valid explanation,” a “simple tasks”
limitation is permitted after a finding that a claimant has
“moderate” difficulties in “concentration, persistence, or
pace.” That conclusion flows directly from our decision in
Ramirez.
26
In Ramirez, as Hess notes, we disapproved of a “simple
tasks” limitation after an ALJ had found that a claimant
suffered from deficiencies in “concentration, persistence, or
pace” that arose “often[.]” 372 F.3d at 554-55. We said that
“a requirement that a job be limited to one to two step
tasks … does not adequately encompass a finding that [the
claimant] ‘often’ has ‘deficiencies in concentration,
persistence, or pace[.]’” Id. at 554 (citation omitted). We were
specifically concerned that such a limitation would “not take
into account deficiencies in pace” because “[m]any employers
require a certain output level from their employees over a given
amount of time, and an individual with deficiencies in pace
might be able to perform simple tasks, but not over an extended
period of time.” Id. On the record then before us, it seemed
likely that, if the claimant often had “deficiencies in pace and
this had been included in the hypothetical,” the vocational
expert would have “changed her answer as to whether there
were jobs in the local or national economy that [the claimant]
could perform[,]” given that “the vocational expert testified
that each of the jobs suitable for [the claimant] … would have
daily production quotas and that [the claimant] would have to
maintain a certain degree of pace to maintain those jobs.” Id.In light of all that, we concluded that “[t]his omission from the
hypothetical runs afoul of our directive in [Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987),] that a
hypothetical question posed to a vocational expert must reflect
all of a claimant’s impairments,” and conflicts with “our
statement in [Burns v. Barnhart, 312 F.3d 113, 122 (3d Cir.
2002),] that ‘great specificity’ is required when an ALJ
incorporates a claimant’s mental or physical limitations into a
hypothetical.” Id. at 554-55 (citations omitted).
27
We immediately noted, however, that ALJs are not
forbidden from using “simple tasks” limitations. An ALJ may
frame a limitation in terms of “simple tasks” if – based on the
facts of the case – the ALJ provides a “valid explanation” for
doing so:
Of course, [we said,] there may be a valid
explanation for this omission from the ALJ’s
hypothetical. For example, the ALJ may have
concluded that the deficiency in pace was so
minimal or negligible that, even though [the
claimant] “often” suffered from this deficiency,
it would not limit her ability to perform simple
tasks under a production quota.
Id. at 555 (emphasis added).
That we did not adopt a categorical rule regarding
“simple tasks” limitations is confirmed by our discussion in
Ramirez of case law from other circuits. Specifically, we
examined four decisions, two of which held that an ALJ’s
limitation statement was adequate despite a finding that the
claimant had deficiencies in “concentration, persistence, or
pace,” id. at 552-53 (citing Howard v. Massanari, 255 F.3d
577, 581-82 (8th Cir. 2001); Smith v. Halter, 307 F.3d 377,
378-79 (6th Cir. 2001)), and two of which held that the
statement of limitation was insufficient in light of such a
finding, id. at 553-54 (citing Kasarsky v. Barnhart, 335 F.3d
539, 544 (7th Cir. 2003); Newton v. Chater, 92 F.3d 688, 694-
95 (8th Cir. 1996)). We emphasized that the outcome of each
case turned on its particular facts. Id. at 552-54. That analysis
animated our adoption of a fact-specific “valid explanation”
approach.
28
In sum, Ramirez did not hold that there is any
categorical prohibition against using a “simple tasks”
limitation after an ALJ has found that a claimant “often” faces
difficulties in “concentration, persistence, or pace.” Rather, a
“simple tasks” limitation is acceptable after such a finding, as
long as the ALJ offers a valid explanation for it.
Ramirez’s “valid explanation” rule remains the law in
our circuit.13 That is true even though Ramirez dealt with a
finding of difficulties in “concentration, persistence, or pace”
that arose “often[,]” id. at 554-55, and here, due to a change in
the regulatory rating scale, the ALJ expressed the limitation in
different terms, saying that Hess had “moderate difficulties” in
“concentration, persistence or pace,”14 (App. at 32.)
13
Our sister circuits have also adopted fact-specific
approaches to whether an ALJ’s chosen limitation is
acceptable notwithstanding a finding of difficulties in
“concentration, persistence, or pace.” E.g., Scott v. Berryhill,
855 F.3d 853, 855, 858 (8th Cir. 2017); Vigil v. Colvin, 805
F.3d 1199, 1203-04 (10th Cir. 2015); Mascio v. Colvin, 780
F.3d 632, 638 (4th Cir. 2015); Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1180-81 (11th Cir. 2011); Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1173-75 (9th Cir. 2008).
14
The regulations previously assessed “concentration,
persistence, or pace” on a scale of “never, seldom, often,
frequent, and constant.” Ramirez, 372 F.3d at 551. The
regulations at issue here assess that functional area using a
scale of “[n]one, mild, moderate, marked, and extreme.” 20
C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4).
29
Regardless of the rating scale, “simple tasks” limitations have
a relationship to abilities in “concentration, persistence, or
pace” that makes a valid explanation necessary after a finding
in that functional area.
The relationship between “simple tasks” limitations and
“concentration, persistence, or pace” is a close one. Indeed,
such limitations directly encompass and anticipate a minimal
level of ability in that functional area. Under the Social
Security Administration’s Program Operations Manual System
(“POMS”),15 “[u]nderstanding, carrying out, and remembering
simple instructions” includes “[t]he ability to maintain
concentration and attention for extended periods (the
approximately 2-hour segments between arrival and first
break, lunch, second break, and departure)[;] [t]he ability to
perform activities within a schedule … [;] [t]he ability to
sustain an ordinary routine without special
supervision[;] … [and] [t]he ability to complete a normal
15
We have characterized the POMS as “‘the publicly
available operating instructions for processing Social Security
claims.’ The Supreme Court has stated that ‘[w]hile these
administrative interpretations are not products of formal
rulemaking, they nevertheless warrant respect.’” Kelley v.
Comm’r of Soc. Sec., 566 F.3d 347, 350 n.7 (3d Cir. 2009)
(alteration in original) (citations omitted). The POMS is
especially entitled to respect in the present context, where the
issue is whether the limitation chosen by the ALJ captured the
claimant’s capabilities and conveyed them to the vocational
expert, given that the POMS establishes the generally
understood meaning of terms within the social security
regulatory framework.
30
workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest
periods.” POMS DI 25020.010(B)(2)(a). In short,
“concentration, persistence, or pace” is tightly linked to the
capacity to complete “simple tasks.”
Nevertheless, a “simple tasks” limitation alone does not
account for the extent of a claimant’s difficulties in
“concentration, persistence, or pace.” Without explanation,
such a limitation does not warrant a conclusion about whether
a claimant’s difficulties in “concentration, persistence, or
pace” are so serious that he cannot satisfy the functional
requirements of “simple tasks.” An explanation is thus
important, regardless of the particular scale used for rating
“concentration, persistence, or pace.” It must be given whether
difficulties in that area are said to arise “often” or are called
“moderate” in severity.16
Based on their understanding of the import of Ramirez,
the Magistrate Judge and the District Court concluded that the
ALJ erred because she did not “explicitly include” her
functional limitation finding as to “concentration, persistence
or pace” in the RFC assessment or hypothetical questions, and
that a “simple tasks” limitation was inadequate to address
Hess’s circumstances. (App. at 19.) In light of that conclusion,
neither the R&R nor the District Court’s opinion discussed the
16
It is possible that the change in regulatory scale for
measuring difficulties in “concentration, persistence, or pace”
was more than a shift in the nomenclature. But we need not
decide that issue today, given that our “valid explanation”
holding applies in any event.
31
sufficiency of the analysis that led to the ALJ’s “simple tasks”
limitation. That is problematic, for, as we have noted here, it
is essential to assess whether a valid explanation has been
given for an ALJ’s statement of a claimant’s limitation to
“simple tasks.”
C. The ALJ Offered a “Valid Explanation”
The final question, then, is whether the ALJ in this case
offered a valid explanation.17 The government argues that the
ALJ did so by analyzing Hess’s difficulties in “concentration,
persistence, or pace” and concluding that they were not so
serious that Hess could not perform simple tasks. Hess’s only
response is that “the ALJ failed to set forth a supported
rationale for [her] RFC findings.” (Answering Br. at 5.) He
does not assert that the ALJ mischaracterized the record, only
that her analysis is flawed.
Having evaluated that analysis, we are persuaded that
the ALJ did offer a valid explanation for her “simple tasks”
limitation. As indicated by our detailed description of her
17
As just stated, the District Court did not consider that
issue. “[W]e ordinarily do not consider issues not addressed
by the district court in the first instance.” Howard Hess Dental
Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 253 n.6 (3d Cir.
2010). But, “[w]e may decide a question not addressed by the
District Court when ‘the record has been sufficiently
developed for us to resolve [the] legal issue.’” Chehazeh v.
Att’y Gen., 666 F.3d 118, 140 (3d Cir. 2012) (second alteration
in original) (citation omitted). Here, the record as to the
adequacy of the ALJ’s explanation has been sufficiently
developed.
32
opinion, the ALJ explained at length and with sound reasoning
why Hess’s “moderate” difficulties in “concentration,
persistence, or pace” were not so significant that Hess was
incapable of performing “simple tasks.” For example, coupled
with her finding that Hess had “moderate difficulties” in
“concentration, persistence or pace,” the ALJ explained that
Hess’s “self-reported activities of daily living, such as doing
laundry, taking care of his personal needs, shopping, working,
and paying bills (when he has money), … are consistent with
an individual who is able to perform simple, routine tasks.”
(App. at 32.) In the same discussion, the ALJ also observed
that “progress notes from treating and examining sources
generally indicate no serious problems in this area of
functioning, reporting that [Hess] could perform simple
calculations, was fully oriented, and had intact remote/recent
memory.” (App. at 32 (citations omitted).)
Likewise, in her meticulous analysis of the record at
step four of the disability analysis, the ALJ highlighted, among
other things, the following: mental status examinations and
reports that revealed that Hess could function effectively;
opinion evidence showing that Hess could do simple work; and
Hess’s activities of daily living, which demonstrated that he is
capable of engaging in a diverse array of “simple tasks,” such
as “work[ing] three days a week for five to six hours as a
dishwasher[.]” (App. at 37.) She additionally noted that there
were no “reports of behavioral issues or problems completing
tasks” during a significant period of close observation, and that
the record “did not reveal frequent or regular serious
symptoms.” (App. at 37-38 (citations omitted).) The ALJ’s
review of the record, moreover, led her to give little weight to
assertions that Hess had serious mental difficulties and to credit
evidence that Hess could perform simple work. After all of
33
that, the ALJ explained that “appropriate limitations” were
imposed to reflect Hess’s mental impairments and that Hess’s
“impairments and the restrictions caused by them would not
prevent him from performing sedentary, unskilled work as
defined … in the [RFC].” (App. at 38-39.)
We think the ALJ’s detailed explanation was
sufficient.18 Indeed, the record evidence the ALJ cited in
reasoning that a “simple tasks” limitation was appropriate is
comparable to, or even stronger than, evidence that certain of
our sister circuits have found to support similar limitations.19
18
It gives us some pause that the ALJ did not address in
her opinion her follow-up colloquy with the vocational expert,
during which the ALJ posed questions that could bear on
limitations in “concentration, persistence, or pace” and that the
vocational expert admitted would prevent full-time
competitive employment. It would likely avoid unnecessary
litigation if ALJs, under these circumstances, incorporated
seemingly relevant responses from vocational experts such as
those into their disability analyses. But, the follow-up colloquy
does not appear to have affected the ALJ’s conclusions or
decision. (See App. at 40 (“Based on the testimony of the
vocational expert, the undersigned concludes that, considering
[Hess’s] age, education, work experience, and [RFC], [Hess]
is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.”).) And,
no one contends that the ALJ’s opinion was deficient for not
explicitly mentioning that colloquy.
19
See Scott, 855 F.3d at 855, 858 (holding that a
hypothetical question that “provided for medium, unskilled
work involving ‘personal contact that is incidental to the work
34
In sum, the ALJ’s limitation “to jobs requiring
understanding, remembering, and carrying out only simple
instructions and making only simple work-related decisions[,]”
(App. at 33-34,) was supported by a “valid explanation” and so
performed,’ requiring ‘little independent judgment … [and]
simple, direct, and … very brief’ supervision” was sufficient to
account for a claimant’s “moderate difficulties in
concentration, persistence, or pace” where the ALJ
acknowledged the claimant’s “reading, writing, and math
difficulties, … his history of special education and failure to
finish high school[,]” his self-described “reduced attention
span,” and “that consultative examiners noted a slow pace[,]”
but also explained that the claimant “‘retains the focus
necessary to watch three hours of television per day[,]’ … does
not require reminders[,]” and “demonstrated good
concentration and persistence during consultative
examinations” (first alteration in original)); Vigil, 805 F.3d at
1203-04 (holding that “the ALJ accounted for [a claimant’s]
moderate concentration, persistence, and pace problems in his
RFC assessment by limiting him to unskilled work” because,
despite finding “some evidence indicating that [the claimant]
had some problems with concentration, persistence, and pace
‘such that [he] could not be expected to perform complex
tasks[,]’” the ALJ also “found that ‘the findings of a normal
ability to recall items on immediate recall, and an ability to
spell words forward, as well as finding of normal thought
processes, indicate[d] that [the claimant] retain[ed] enough
memory and concentration to perform at least simple tasks’”
(third, fifth, and seventh alterations in original) (citations
omitted)).
35
was appropriate. The administrative decision should therefore
have been upheld.
III. CONCLUSION
For the foregoing reasons, we will vacate the judgment
of the District Court and remand with instructions to enter
judgment for the government.
36