Youmans v. Colvin

Filing 25

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 7/5/2016. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NANCY E. YOUMANS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 14 CV 7609
Magistrate Judge Young B. Kim

July 5, 2016

MEMORANDUM OPINION and ORDER
Nancy Youmans filed an application for Supplemental Security Income
(“SSI”) alleging that she is disabled by a learning disorder, psychiatric ailments, ear
problems, and a cleft lip.

After the Commissioner of the Social Security

Administration denied her application, Youmans filed this suit seeking judicial
review. See 42 U.S.C. § 405(g). Before the court are the parties’ cross-motions for
summary judgment. For the following reasons, Youmans’s motion for summary
judgment is denied and the government’s is granted:
Procedural History
Youmans applied for SSI in September 2011 claiming disability because of a
learning

disability,

post-traumatic

stress

disorder

(“PTSD”),

depression,

schizophrenia, ear and hearing problems, and a cleft lip.1 (Administrative Record
(“A.R.”) 138, 156.) After her claim was denied initially and upon reconsideration,
Youmans has had eight prior filings for disability benefits, but these applications
are not at issue here.

1

(id. at 80-83), Youmans timely requested and was granted a hearing before an
Administrative Law Judge (“ALJ”), (id. at 96, 103). Represented by counsel, she
appeared and testified before the ALJ on December 6, 2012. (Id. at 29–79.) On
January 23, 2013, the ALJ issued a decision denying Youmans’s application. (Id. at
15, 24.) When the Appeals Council declined her request for review, (id. at 6-11), the
ALJ’s denial of benefits became the final decision of the Commissioner, see Minnick
v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015); 42 U.S.C. § 405(g). After receiving an
extension of time from the Appeals Council, (A.R. 1), Youmans filed this lawsuit
seeking judicial review of the Commissioner’s decision, (R. 1), and the parties
consented to this court’s jurisdiction, (R. 7); see 28 U.S.C. § 636(c).
Background
A.

Medical Evidence
Youmans was 32 years old at the time of her December 2012 hearing. In

2006 she underwent a psychological assessment with Mark B. Langgut, Ph.D., a
licensed clinical psychologist. (A.R. 224-26.) Dr. Langgut reviewed then-available
medical records and conducted a mental status examination and a Wechsler Adult
Intelligence Scale III (“WAIS-III”) test. (Id.) He characterized Youmans’s thought
processes as having “slowed speed, poor coherence, and moderately increased
suggestibility” with some mild obsessive ideas, ruminative ideation, and phobias.
(Id. at 226.) Her full scale IQ score was 79, which was in the eighth percentile and
considered to fall within the borderline range of intellectual ability. (Id.)

2

Most of the medical records document Youmans’s mental health treatment
from February 2008 to July 2010, (id. at 235-360), during which time she was
diagnosed with a mood disorder, an anxiety disorder, relational problems, and
dependent personality disorder, (id. at 235, 292).

She received counseling from

licensed clinical social worker Diane Funk for her depression, anxiety, and related
issues. (Id. at 255-69.) In March 2008, Dr. Atul Sheth, M.D., prescribed Celexa,
which Youmans admitted to stopping and restarting because of her financial
limitations. (Id. at 237.) In May 2009, when she reported an increase in panic
attacks, Dr. Sheth increased her dose of Celexa and added Ativan to her regimen.
(Id. at 282.) That same month Youmans reported that she had been experiencing
flashbacks to past trauma, but that her medications were helping. (Id. at 316.)
At a second psychological assessment with Dr. Langgut in May 2009,
Youmans reported that she was experiencing depression, nightmares, and
flashbacks. (Id. at 231.) Testing indicated a full-scale IQ of 67, placing her in the
first percentile, or what Dr. Langgut described as “in the mentally deficient range of
intellectual ability.” (Id. at 232.) He noted that Youmans “appear[ed] to struggle
with many aspects of day to day life and [was] apt to feel overwhelmed by modest
tasks.” (Id.)
In July 2009, Funk noted that Youmans was experiencing panic attacks. (Id.
at 294.) In September 2009, Youmans was discharged from treatment because of
noncompliance, (id. at 309, 313), but she returned to receiving mental-health
treatment in November 2009, (id. at 317). She was staying at a homeless shelter

3

and lacked any means to pay for her treatment. (Id. at 322.) She also reported
feelings of hopelessness, low energy and motivation, and irritability. (Id.) A Mental
Status Exam performed on November 6, 2009, noted that she exhibited a poor
recent memory and an inability to concentrate. (Id. at 324.) Evaluators confirmed
diagnoses of PTSD, anxiety, mild recurrent major depressive disorder, and
dependent personality disorder. (Id. at 333.)
The following month, on December 23, 2009, Youmans followed up with
Dr. Sheth.

(Id. at 345-47.)

Dr. Sheth wrote that Youmans had a history of

depression, anxiety, and obsessive-compulsive disorder, and was experiencing social
phobia. (Id. at 345.) Youmans reported anxiety that caused her to shake and to
have pains in her stomach and legs, and complained of slight depression. (Id.)
Dr. Sheth recommended that she resume Celexa and referred her for case
management and psychiatric services. (Id. at 347, 354.)
On April 30, 2010, clinical psychologist Mary M. Zashin, Ph.D., performed a
psychological assessment of Youmans in connection with proceedings unrelated to
her SSI application.

(Id. at 361-401.)

Dr. Zashin interviewed Youmans and

performed several psychological and cognitive tests, including the WAIS-III. (Id. at
362-63.) Dr. Zashin described Youmans as “[a]nxious, depressed, and beset with
self-critical thoughts” and “plagued by” tension that limits her ability to think and
concentrate. (Id. 374.) She noted that Youmans “often withdraws” and sometimes
expresses discontent through “incomplete task performance, passive-aggressive
noncompliance,

evasiveness,

procrastination,

4

purposeful

inefficiency,

misunderstanding, and ‘forgetting.’”

(Id. at 375.)

Dr. Zashin observed that

Youmans met the criteria for major depressive disorder, generalized anxiety
disorder, and avoidant personality disorder. (Id. at 394.) She assessed a thencurrent GAF score of 45.2 (Id. at 401.)
On the intelligence test administered by Dr. Zashin, Youmans had a full scale
IQ score of 86, which was in the 18th percentile for the adult population as a whole.
(Id. at 389.) This led Dr. Zashin to conclude that Youmans “has the cognitive ability
to enable her to meet the demands of adult life,” though she “may have some
difficulty with tasks that call on her weaker nonverbal abilities,” and that her
“weakness in mental control and auditory memory may sometimes hinder her.” (Id.
at 390.) Youmans scored at the 11th-grade level in reading and at the 10th-grade
level in mathematics, and Dr. Zashin opined that “there is no evidence of specific
learning disabilities in these two areas of basic academic skills.” (Id.) Even so,
Dr. Zashin ultimately concluded that at her then-current level of functioning,
Youmans was “unable to meet most of the daily requirements of adult life,” without
“extensive support and comprehensive treatment.”

(Id. at 397.)

While her

assessment did not provide any analysis of her capacity to perform work-related
activities, Dr. Zashin did opine that Youmans “could benefit from job or vocational
Although the American Psychiatric Association discontinued the use of the GAF
metric in 2013, see Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 16 (5th ed. 2013), the GAF score was still in use at the time of
Youmans’s evaluations noted in this record. See Gully v. Colvin, 593 Fed. Appx.
558, 561 n.2 (7th Cir. 2014). A GAF score between 41 and 50 indicates “Serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)
OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).”
2

5

counseling” and from training to help her “develop the skills she needs to become
financially more self-supporting.” (Id. at 398-99.)
A note dated July 28, 2010, indicates that Youmans was again discharged
from her mental-health treatment for noncompliance. (Id. at 355.) She had failed
to attend psycho-social rehabilitation sessions, a type of group therapy, since the
beginning of June. (Id.)
On November 22, 2011, Youmans met for a third time with consultative
examiner Dr. Langgut, who performed an updated psychological assessment in
connection with her current application for benefits. (Id. at 455-58.) Dr. Langgut
again diagnosed Youmans with having symptoms of PTSD. (Id. at 458.) He noted
that even though Youmans suffers from depression, she did not exhibit significant
depressive symptoms at that time. (Id. at 455, 457.) Her thought processes were of
average coherence and normal speed with a mild degree of ruminative ideation and
no obsessive ideas, delusions, phobias, or hallucinations. (Id. at 458.) She had the
capacity for intact judgment but limited abstract reasoning skills and impaired
insight into her own situation. (Id. at 457-58.) She was living with her husband
and was able to perform household chores, including cleaning the house, doing the
laundry, shopping, and cooking. (Id. at 456-57.)
State agency reviewer Dr. Elizabeth Kuester prepared a Psychiatric Review
Technique Form and a Mental Residual Functional Capacity Form on December 16,
2011.

(Id. at 437-53.)

Based on a review of Youmans’s treatment records and

Dr. Langgut’s reports, Dr. Kuester concluded that Youmans has a learning

6

disorder/borderline intellectual functioning and mild anxiety characterized by
recurrent and intrusive recollections of a traumatic experience. (Id. at 437-38, 442.)
Dr. Kuester found that Youmans has the following limitations: mild restrictions in
her activities of daily living; mild difficulties in maintaining social functioning; and
moderate difficulties in maintaining concentration, persistence, or pace.
447.)

(Id. at

She opined that diagnoses of dependent personality disorder and mental

retardation are not substantiated in the available record. (Id. at 449.) She rejected
the IQ scores from Dr. Langgut’s 2009 assessment, which were 10 or more points
lower than those obtained in 2006, because they were “not consistent with the
history or her level of her adaptive functioning” and with her most recent mental
status exam by Dr. Langgut. (Id.)
As to Youmans’s mental RFC, Dr. Kuester opined that she is “moderately
limited” in the following six work-related mental capacities: the abilities to
understand and remember detailed instructions; to carry out detailed instructions;
to maintain attention and concentration for extended periods; to complete a normal
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; to interact appropriately with the general public; and to set realistic
goals or make plans independently of others. (Id. at 451-52.) She opined that
Youmans has no “marked” limitations in work-related mental abilities and is “not
significantly limited” in any other capacity.

(Id.)

Dr. Kuester explained that

despite Youmans’s learning disorder/borderline intellectual functioning, she has

7

“relatively mild symptoms currently.” (Id. at 453.) She opined that Youmans can
“learn and perform simple, routine tasks adequately with ordinary supervision” and
can “relate acceptably to the extent typical of simple work,” making “basic work
decisions” and adapting to a work routine. (Id.)
In February 2012, medical consultant R. Leon Jackson, Ph.D., agreed with
Dr. Kuester’s assessments, finding Youmans “capable of simple unskilled tasks with
some social limits.” (Id. at 462.) Dr. Jackson noted that Youmans had provided no
sources to support her assertion in her request for reconsideration that her
conditions had worsened since December 1, 2011. (Id.) He determined that absent
any additional medical evidence, the psychological consultative exam performed in
November 2011 by Dr. Langgut still applied to describe her condition on the date
she claims her condition declined. (Id.)
B.

Hearing Testimony
At her December 2012 hearing before the ALJ, Youmans testified that she

had difficulty keeping her former job because of anxiety about completing and
initialing items on a task list she received each day.

(A.R. 42.)

She also felt

stressed if asked to do something different from what was on the list. (Id.) She
testified that she was unable to complete the expected amount of work in a day
because she would get distracted and become upset about events in her life. (Id. at
43-44.)

There were also times when she would not come into work because of

depression, but that was not often the case because she knew she had to report for
work. (Id. at 44.)

8

Youmans testified that she now lives with her husband, who does most of the
household chores, but she is able to take out the garbage, wash dishes, and sweep.
(Id. at 44-48.) She fears making mistakes. (Id. at 49-50.) She no longer takes
Celexa or Ativan because they made her feel ill. (Id. at 51.) She does not see a
psychiatrist or psychologist because she lacks the financial means to do so, but has
not sought treatment at a free clinic. (Id. at 52.)
A vocational expert (“VE”) testified regarding the kinds of jobs available for a
person of Youmans’s age, education, and work experience with the following
restrictions: she can perform only simple, routine, and repetitive tasks in a work
environment free of fast-paced production requirements and involving only simple
work-related decisions with few, if any, workplace changes; she can have only brief
and superficial interactions with the public and co-workers; and she needs close
supervision, defined as having a supervisor check her work four times a day. (Id. at
73-74.) The VE explained that such a person could work as a machine feeder. (Id.
at 74.) The ALJ then asked the VE to assume that such an individual should also
avoid workplace hazards such as moving machinery, unprotected heights, and
motor vehicles.

(Id.)

The VE opined that such a person could still work as a

machine off-bearer, machine operator, polisher, or fastener. (Id. at 75.) However, if
she were off task for 20 percent of the workday, or took two unexcused absences per
month, no jobs would be available. (Id. at 76-77.)

9

C.

The ALJ’s Decision
On January 23, 2013, the ALJ issued a decision finding that Youmans is not

disabled.

(A.R. 15-24.)

Applying the required five-step sequence for assessing

disability, see 20 C.F.R. § 416.920(a)(4); Stepp v. Colvin, 795 F.3d 711, 716 (7th Cir.
2015), the ALJ first found that Youmans has not engaged in substantial gainful
activity since September 7, 2011, (A.R. 17).

At step two the ALJ found that

Youmans has the following severe impairments: learning disorder; depression;
anxiety/PTSD; and a schizoaffective disorder.

(Id.)

At step three the ALJ

determined that Youmans does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ then
determined that Youmans retains the residual functional capacity (“RFC”) to
perform a full range of work at all exertion levels, but with the following nonexertional limitations: she must avoid exposure to hazards; she is limited to simple,
routine, and repetitive tasks in a work environment free of fast-paced production
requirements and requiring only simple work-related decisions; she can have few, if
any, work place changes; she is limited to brief and superficial interactions with the
public and occasional interactions with co-workers in jobs that do not require her to
work on tandem tasks; and she requires close supervision, defined as having a
supervisor check her work four times per workday. (Id. at 19.) The ALJ found at
step four that Youmans has no past relevant work. (Id. at 22.) At step five, based
on her age, education, work experience, and RFC, the ALJ concluded that Youmans

10

can perform jobs existing in significant numbers in the national economy, including
machine off-bearer, polisher, and fastener.

(Id. at 23.)

Accordingly, the ALJ

concluded that Youmans is not disabled. (Id. at 24.)
Analysis
Youmans argues that the ALJ’s decision must be reversed because, according
to her, he failed to consider Listing 12.05(C), performed a faulty assessment of her
RFC, failed to build a logical bridge from the evidence to his conclusion, and
wrongly concluded at step five that Youmans could adjust to work that exists in
significant numbers in the national economy. This court reviews the ALJ’s decision
only to ensure that it is supported by substantial evidence, defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”

Stepp, 795 F.3d at 718 (internal quotation omitted).

Under that

standard, the court will not substitute its judgment for the ALJ’s or reconsider
evidence. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). At the same time, the
court will not “simply rubber-stamp the Commissioner’s decision without a critical
review of the evidence.”

Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

Instead, the court’s role is to ensure that the ALJ built a “logical bridge from the
evidence” to his conclusion that the claimant is not disabled, explaining “why
contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.
2008) (internal quotation and citation omitted).

11

A.

Listing 12.05(C)
In challenging the ALJ’s step-three analysis, Youmans argues that the ALJ

“committed substantial, harmful error by completely failing to address . . . Listing
12.05(C),” the listing for mental retardation. (R. 13, Pl.’s Mem. at 8.) A claimant
can meet Listing 12.05(C) by having a valid IQ score from 60-70 together with “a
physical or other mental impairment imposing an additional and significant workrelated limitation of function.” See 20 C.F.R. Pt. 404, Subpt.P, App. 1 § 12.05(C).
Youmans contends that her history of attending special education classes and her
full scale IQ score of 67 as tested by Dr. Langgut in 2009, together with her other
impairments, should have led the ALJ to consider Listing 12.05(C). (R. 13, Pl.’s
Mem. at 8-9.)
At step three, however, the burden is on the claimant “to present medical
findings that match or equal in severity all the criteria specified by a listing.” Knox
v. Astrue, 327 Fed. Appx. 652, 655 (7th Cir. 2009). Also, a party who is represented
by counsel at the administrative hearing stage “is presumed to have made [her] best
case before the ALJ.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (quoting
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007)). But Youmans’s counsel did
not ask the ALJ to consider Listing 12.05 at the hearing.

Her counsel instead

advocated for Listing 12.04. When questioned by the ALJ as to whether Youmans’s
impairments met any listing other than 12.04, Youmans’s counsel replied, “I’d say
that would be the only listing.” (Id. at 36.) Based on that assertion, the ALJ wrote
that Youmans’s counsel “conceded other than 12.04 no listings met,” and therefore

12

“deemed waived” any argument regarding any other listing. (Id. at 18.) In her
arguments to this court, Youmans ignores this aspect of the ALJ’s finding,
characterizing the ALJ’s failure to address Listing 12.05 as an oversight rather
than the result of counsel’s representation that the only relevant Listing was 12.04.
See Levins v. Astrue, No. 09-C-1067, 2010 WL 1881452, at *6 (E.D. Wis. May 10,
2010) (noting that an ALJ is not required to consider every conceivable applicable
listing when a claimant’s counsel refers to only a particular listing); see also
Watkins v. Colvin, 3:12-CV-491, 2014 WL 683849, at *8 (N.D. Ind. Feb. 21, 2014)
(noting that counsel’s statement that a particular listing does not apply usually
prevents claimant from later asserting the opposite). Because Youmans has not
addressed the ALJ’s reason for not considering Listing 12.05(C)—namely, her
attorney’s representation that only Listing 12.04 is relevant—she has not shown
that the ALJ committed reversible error in excluding Listing 12.05(C) from his stepthree analysis.
Even if the ALJ were obligated to consider Listing 12.05(C) despite her
attorney’s concession at the hearing, Youmans has not met her burden of showing
that her intellectual impairment meets the criteria for that listing. An ALJ need
not accept an IQ score as “valid” in the face of conflicting evidence. See Strunk v.
Heckler, 732 F.2d 1357, 1360-61 (7th Cir. 1984); see also Williams v. Colvin,
No. 1:12-CV-01715-SEB-DKL, 2014 WL 1328152, at *5 (S.D. Ind. March 31, 2014)
(noting that an ALJ “may discount [IQ] scores inconsistent with his determination
of the claimant’s intellectual functioning based on other available evidence, and he

13

may resolve discrepancies between different scores”). Here, Youmans underwent
three sessions of IQ testing as an adult, which yielded IQ results of 79 in 2006, 67 in
2009, and 86 in 2010. The ALJ did consider Youmans’s IQ result from 2009, but he
rejected it as an outlier as it was more than 10 points lower than her next-lowest
test result and was “inconsistent with . . . her level of adaptive functioning.”
(A.R. 22.) The ALJ cited as support for that assertion Dr. Kuester’s findings that
the 2006 IQ score was a more accurate representation of her cognitive functioning.
(Id.) Because the court reviews the ALJ’s decision as a whole, see Curvin v. Colvin,
778 F.3d 645, 650 (7th Cir. 2015), in light of the ALJ’s rejection of the only IQ score
that fell within the listings range, Youmans did not meet the threshold requirement
of Listing 12.05(C). Accordingly, even if the ALJ should have considered Listing
12.05(C) despite Youmans’s counsel’s disavowal of any listing other than 12.04, the
ALJ’s failure to evaluate that listing here was harmless.
B.

RFC Assessment
Youmans’s next two arguments challenge the ALJ’s RFC findings. First, she

asserts that the ALJ “selectively highlighted” certain evidence, ignoring parts of the
record that conflict with his conclusions, including Dr. Langgut’s May 2009 report
and portions of Dr. Zashin’s April 2010 report. (R. 13, Pl.’s Mem. at 9-10.) Although
an ALJ need not discuss every piece of evidence in the file, he must “confront the
evidence that does not support [his] conclusion and explain why that evidence was
rejected.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014.) The ALJ has done
that here.

He summarized Dr. Zashin’s 40-page report, listed the diagnostic

14

findings, and quoted a portion of the report very similar to that which Youmans
claims he ignored—the psychologist’s finding that Youmans lacks the “financial
resources, employment skills, social support, or environmental stability to care for
herself . . . without assistance.”

(A.R. 21.)

The ALJ also provided a thorough

summary of Dr. Langgut’s most recent report and highlighted the portions of his
earlier reports that conflict with the ALJ’s ultimate conclusions. (Id. at 21-22.) He
then explained that he rejected Dr. Zashin’s opinion regarding Youmans’s prognosis
and GAF score considering her functioning during the relevant period, from
September 7, 2011, through her hearing date, and the other opinion evidence on
file, including those of the consulting physicians.

(Id. at 22.)

Youmans’s most

recent psychological assessment and the opinions of the agency reviewers together
provide substantial evidence to support this portion of the ALJ’s decision.
Additionally, although neither examining source rendered any opinion
specific to Youmans’s work-related capacities, it is clear that the ALJ took many of
their findings into account in assessing a restrictive mental RFC. State consultant
Dr. Kuester found Youmans “moderately limited” in only six of twenty work-related
mental capacities. (Id. at 451-52.) The ALJ formulated an RFC that accounted for
those limitations and more, adding such restrictions as the need for close
supervision and the need for a job with few, if any, workplace changes. Youmans
has not shown that the ALJ’s RFC assessment fails to account for any work-related
capacity compromised by her diagnosed disorders, poor social skills, and tendencies
to “struggle with many aspects of day to day life” and to “feel overwhelmed by

15

modest tasks”—the portions of the reports she alleges the ALJ ignored. (R. 13, Pl.’s
Mem. at 10.) The ALJ limited Youmans to simple, routine, and repetitive tasks in a
work environment free of fast-paced production requirements and requiring only
simple work-related decisions, with no more than brief and superficial interactions
with the public and occasional interactions with co-workers with close supervision.
(A.R. 19.)

These restrictions indicate that the ALJ recognized Youmans’s

limitations and that he took them into account in considering whether there are
jobs she can perform.
Second, Youmans criticizes the ALJ’s RFC assessment for failing to include
the assumptions that she will be off task 20 percent of the time and absent more
than 14 days per year. (R. 13, Pl.’s Mem. at 10-11.) Youmans’s argument fails
because she has not pointed to any evidence in the record demonstrating that those
restrictions apply to her. Youmans’s reliance on Punzio v. Astrue, 630 F.3d 704 (7th
Cir. 2011), is misplaced.

In Punzio, the claimant’s treating psychiatrist had

provided a function-by-function assessment of her work-related capacities, which
included limitations that were excluded from the ALJ’s RFC assessment. Id. at
709-10. Here, by contrast, no treating source has opined as to her work-related
functioning, let alone opined that she would be off-task 20 percent of the time or
that she would be absent from work 14 days per year. The consulting physicians
opined that Youmans can perform simple, routine tasks with ordinary supervision.
Because the ALJ took these opinions into account and assigned an RFC that is even

16

more restrictive than those suggested by the only medical opinions in the record,
Youmans has not shown that the ALJ erred in assessing her mental RFC.
The court notes that Youmans argues for the first time in her reply brief that
the limitation to simple, routine, and repetitive tasks with additional limitations on
supervision and social contacts do not capture her moderate limitations in
concentration, persistence, or pace. (R. 23, Pl.’s Reply at 4.) As an initial matter,
Youmans improperly filed her reply without seeking leave of the court, as instructed
in this court’s order dated November 17, 2014. (R. 10.) Moreover, Youmans has
waived this argument by raising it only in her reply brief. See Bodenstab v. County
of Cook, 569 F.3d 651, 658 (7th Cir. 2009); Williams v. Colvin, 14 CV 904, 2015 WL
4607649, at *3 (N.D. Ill. July 31, 2015). The waiver rule exists to prevent a party
from depriving its opponent of the opportunity to brief an issue, see Williams, 2015
WL 4607649, at * 3, which is what Youmans has done here. Even assuming for the
sake of argument that Youmans had not waived this argument, although the
Seventh Circuit has held that normally an RFC limiting a claimant to simple,
routine work does not properly capture moderate limitations in concentration,
persistence, or pace, see Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014), it has
also recognized that in some situations where a consulting physician translates a
finding of moderate limitations in concentration, persistence, or pace into an RFC
for simple, routine work, the ALJ may rely on that opinion in assigning the RFC,
see Varga v. Colvin, 794 F.3d 809, 816 (7th Cir. 2015) (noting that “in some cases,
an ALJ may rely on a doctor’s narrative RFC, rather than the checkboxes, where

17

that

narrative

adequately

encapsulates

and

translates

those

worksheet

observations”); Milliken v. Astrue, 397 Fed. Appx. 218, 222 (7th Cir. 2010). Here the
ALJ relied on the opinion of Dr. Kuester, who noted that despite her limitations in
concentration, persistence, or pace, Youmans can “learn and perform simple,
routine tasks” with ordinary supervision and can adapt adequately to a work
routine involving simple work. (A.R. 22, 453.)
C.

Weighing of Evidence
Youmans also argues that the ALJ’s RFC assessment is erroneous because,

according to her, he improperly evaluated her credibility and the opinion evidence.3
(R. 13, Pl.’s Mem. at 11-13.) In evaluating a claimant’s symptoms the regulations
require the ALJ to first determine whether the claimant has an underlying
medically determinable impairment that could reasonably be expected to produce
her symptoms and to then “evaluate the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit an individual’s
ability to perform work-related activities.”

SSR 16-3p at *2; see also 20 C.F.R.

§ 416.929. Here, despite his statement that he did not find her “credible,” the ALJ
took Youmans’s self-reported symptoms into account in formulating his RFC
assessment. In her testimony, Youmans described her work-related limitations as a
The Social Security Administration recently issued a Social Security Ruling
(“SSR”) updating its guidance about evaluating symptoms in disability claims. See
SSR 16-3p, 2016 WL 1119029 (effective March 28, 2016). The new SSR 16-3p
supersedes SSR 96-7p, eliminating the term “credibility” from the Administration’s
sub-regulatory policies in favor of a focus on symptom evaluation. Id. at *1. But
the factors that the ALJ must consider in evaluating the intensity of symptoms
remain the same under the new guidelines. Id. at *7.

3

18

tendency to get “sidetracked,” and feelings of stress and anxiety when confronting a
long to-do list or when asked to complete tasks not on that list. (A.R. 42-44.) The
ALJ accounted for these symptoms by limiting her to simple, routine, and repetitive
tasks, free of fast-paced production requirements or tandem tasks, and simple workrelated decisions with close supervision, in an environment with few if any
workplace changes. (Id. at 19.) In her written testimony, Youmans also stated that
she has difficulty getting along with others because she does not like socializing,
symptoms that the ALJ took into account in limiting her to only brief and
superficial interactions with the public and occasional interactions with coworkers.
(Id. at 19, 171.) Youmans now argues in her brief that she “would not come into
work because she felt too depressed,” and that she has approximately five panic
attacks a week, but offers no evidence to substantiate these claims, particularly
with respect to the period since the date of her application. (Compare R. 13, Pl.’s
Mem at 11, with A.R. 44 (when she was employed, Youmans “mainly” went to work
despite her depression) and id. at 231 (her depression in 2009 was exacerbated by
her homelessness at the time).) Moreover, contrary to Youmans’s argument, the
ALJ did give “concrete reasons” for finding her symptoms less severe than she
described. The ALJ walked through the factors for symptom evaluation set forth in
20 C.F.R. § 416.929, and found that they did not fully support her testimony. (A.R.
20.) For example, the ALJ found that Youmans had not taken any medication for
over three years and that she had been discharged from therapy programs based on
her failure to attend. (Id.) The ALJ acknowledged Youmans’s testimony that she

19

lacked insurance or the funds for treatment, but noted that she had not sought out
a free clinic for treatment. (Id.) The ALJ considered Youmans’s daily activities,
including her ability to clean, do laundry, shop, and cook. (Id.) Those are valid
bases on which an ALJ may discount a claimant’s testimony regarding symptom
severity. See Berger, 516 F.3d at 546 (noting that even “harsh” evaluations of a
claimant’s testimony “will stand as long as there is some support in the record”
(internal quotations and citation omitted)).
D.

Step-Five Determination
Youmans’s final argument is that the ALJ came to the wrong conclusion in

finding that she could work, given her past failed work attempts. (R. 13, Pl.’s Mem.
at 13.) With this contention, Youmans attempts to circumvent the five-step process
and to secure a finding of disability without any analysis of the ALJ’s assessment of
her RFC. The ALJ properly applied the five-step process, assessed an unusually
restrictive mental RFC, and with the aid of VE testimony, found that there are jobs
that Youmans can perform despite her limitations. Youmans has not developed any
argument as to why a person with the RFC the ALJ assigned to her could not
perform the three jobs that the VE identified at the hearing.4 Accordingly, the court
will not disturb the ALJ’s step-five finding.

The court notes that the ALJ included in the RFC a restriction against performing
tandem tasks, but did not include that restriction in the hypothetical questions
posed to the VE. (A.R. 19, 73-74.) Neither party has acknowledged this
discrepancy, nor has Youmans raised this as a potential reversible error in either of
her briefs. There are portions of the hearing transcript that are marked as
“inaudible,” (id. at 74-75), so it is possible that the ALJ included the restriction but
it was not recorded. It is also possible that the positions the VE cited do not require

4

20

Conclusion
For the foregoing reasons, Youmans’s motion for summary judgment is
denied, the government’s is granted, and the final decision of the Commissioner
denying benefits is affirmed.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

tandem tasks. Because neither party raised the issue, the court will not address it
further.
21