Ultimately, the Administrative Law Judge at a Social Security disability hearing is tasked with translating all the medical evidence, all the statements from friends, relatives, employers, and doctor's letters, and the statements at hearing into a list of functional limitations.
Within the Judge's decision, when there are mental health issues in question, the judge is required to break down the functional impact from mental health symptoms into the areas of concentration and persistence, understand and applying information, getting along with others, and taking care of oneself. The judge is required to identify whether the impact on those areas is mild, moderate, marked or extreme.
However, unless symptoms result in two or more marked limitations the judge continues the disability inquiry. Often the remaining moderate or even marked limitations are not included when determining the claimant's residual functional capacity (the ability to work despite the medical conditions).
Many judges reduce all mental health limitations into a single limitation to "simple, routine" (or "simple, repetitive") tasks (often with "occasional" public contact).
The rule in the 9th Circuit is clear: When established by the medical evidence, the ALJ must include moderate mental health limitations in the RFC assessment and the hypothetical given to the vocational expert. "Simple, routine" or "simple, repetitive" does not capture moderate limitations in concentration, pace, and persistence.
The rule was most recently laid out in Erik N. v. Comm'r, Soc. Sec. Admin. (D. Or. 2020):
"When an ALJ makes a finding of moderate limitations in concentration, persistence, or pace in step three, those limitations must be reflected in the RFC assessment. Saucedo v. Colvin, No. 6:12-CV-02289-AC, 2014 WL 4631225, at *17-18 (D. Or. Sept. 15, 2014) (failure to include limitations regarding concentration, persistence, or pace in the RFC is reversible error if the ALJ found such limitations at step three); see also Lubin v. Comm'r Soc. Sec. Admin., 507 F. App'x 709, 712 (9th Cir. 2013) ("The ALJ must include all restrictions in the [RFC] determination . . . including moderate limitations in concentration, persistence, or pace."). An ALJ's assessment that a plaintiff can perform "simple tasks" may "adequately capture [ ] restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). In Stubbs-Danielson, for example, the ALJ relied on medical testimony that the plaintiff retained the ability to perform simple tasks, notwithstanding some evidence that the plaintiff had deficiencies in pace. Id. at 1173-74. Stubbs-Danielson does not apply, however, to cases where the medical evidence establishes that the plaintiff has restrictions in concentration, persistence, or pace that are not captured in the RFC. Brink v. Comm'r Soc. Sec. Admin., 343 F. App'x 211, 212 (9th Cir. 2009) ("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.")."
Norman at 6. The court's reasoning is most useful because it includes the rebuttal to the government's argument that Stubbs-Danielson takes out Brink. Instead of disregarding the reasoning in Brink, the courts have held that Stubbs-Danielson highlights the fact specific and case specific nature of the inquiry. In Stubbs-Danielson there were no limitations in concentration, persistence, or pace that the ALJ left out of the simple, routine tasks restriction in the RFC. The question is whether the RFC captures all the functional limitations identified by the medical evidence. Moderate limitations must also be included.
In Erik N., the ALJ relied on medical evidence to determine that Plaintiff has moderate limitations in concentration, persistence, or pace at step three. The reviewing court held that an RFC that limits the claimant to "simple routine tasks," does not include any limitations related to concentration, persistence, or pace. The court wrote:
"The issue, then, is whether the RFC assessment sufficiently translates the ALJ's findings into functional limitations. The Court finds that it does not. See Gartner v. Berryhill, No. 6:16-cv-01505-SI, 2017 WL 3208351, *14 (D. Or. July 28, 2017) ("An RFC that limits Plaintiff to simple work does not incorporate Plaintiff's moderate difficulty with concentration, persistence, and pace."); Becky B. v. Saul, No. 6:19-cv-330-SI, 2020 WL 1244865 (D. Or. Mar. 16, 2020) (same). The ALJ therefore failed to fully capture Plaintiff's limitations, because the jobs the VE identified (laborer, salvage; meat clerk; hand packager), may still require focus and concentration despite being "simple routine tasks." See Brink, 343 F. App'x at 212 ("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.")."
Erik N. at 6. The court explains that the error is not harmless because moderate limitations in concentration, persistence, or pace may preclude simple, repetitive work. The vocational expert did not consider the limits because they were not included in the hypothetical.
Brink gets reified.
In Brink v. Comm'r of Soc. Sec. Admin. (9th Cir. 2015), the case of Brink (2009) came back before the 9th Circuit Court of Appeals. Apparently, the ALJ repeated the same hypothetical even after remand. In an unpublished opinion the court held:
Brink v. Comm'r Soc. Sec. Admin., 343 Fed App'x 211, 212 (9th Cir. 2009). In other words, we reasoned that the ALJ failed to capture Brink's functional limitations resulting from his moderate impairments in concentration, persistence, or pace when the ALJ's hypothetical to the vocational expert stated only that Brink could perform simple, repetitive tasks. See id. That decision was not clearly erroneous, no intervening change in the law has occurred, the evidence on remand was not substantially different, no other changed circumstances exist, and no manifest injustice would otherwise result. See Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993). Therefore, the ALJ was bound by our conclusion, and in the absence of any new evidence in the record, the ALJ erred in repeating a hypothetical to the vocational expert that was substantially identical to the hypothetical we ruled to be inadequate. See id.
Brink v. Comm'r of Soc. Sec. Admin. (9th Cir. 2015). In short, Brink is still good law. Moderate limitations in concentration, persistence, or pace are not captured in a "simple, repetitive tasks" RFC.
Similarly, moderate limitations in understanding and applying information or adapting and managing are not captured. Fact specific inquiries on a case by case basis are necessary to properly include moderate limitations in RFC assessments.
