Opinion
Civil Action No. 3:03-CV-0217
March 3, 2004
Carter Zerbe PHV, Charleston, WV, for Plaintiff/Petitioner
Clifford D. Johnson, South Bend, IN, for Defendant/Respondent
MEMORANDUM AND ORDER
On or about February 17, 2004, this Court found that Ms. Ottman was entitled to remand. On or about March 2, 2004, the Commissioner filed a motion to alter or amend that judgment. While the Commissioner does not contest the Court's determination in its February 17, 2004 decision, she was concerned that the language articulated in that opinion could be read to suggest that ALJ's are required to incorporate their exact "B" criteria findings into their ultimate residual functional capacity findings ("RFC").
The Commissioner's concern focuses on the Court's statement that "because the ALJ in this matter did not incorporate the limitation of `often' as observed earlier in the record, in the hypothetical posed to the vocational expert, or explain its omission, this same action of remand must be followed in this instance." Order at 16-17. This Court's statement was premised on the Seventh Circuit's holding in Kasarsky v. Barnhart, 335 F.3d 539 (7th Cir. 2003). This Court, in rendering its opinion, did so in line with Kasarsky, having legitimate concerns about whether the ALJ's ultimate RFC finding accounted for Ms. Ottman's mental impairments. This case was remanded in order for the ALJ to provide a mental functional residual capacity finding that takes account for his earlier finding that Ms. Ottman `often' had deficiencies in concentration, persistence, and pace.
Therefore, for the sake of clarification, this matter was remanded for further consideration of that issue, and was not remanded, to require the ALJ to include his exact "B" criteria findings into his RFC findings. The opinion issued by the Court on or about February 17, 2004, ordering remand, thus allows the Court's concerns to be addressed while confirming with the Agency's regulations. See. Smith v. Halter, 307 F.3d 377 (6th Cir. 2001).
SO ORDERED.