Vascsinec v. Saul

Filing 21

MEMORANDUM Opinion and Order Signed by the Honorable Sunil R. Harjani on 5/9/2022. Mailed notice(lxs, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GINA V.,
Plaintiff,

Case No. 20 C 4009

v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,

Magistrate Judge Sunil R. Harjani

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Gina V. 1 seeks judicial review of the final decision of the Acting Commissioner
of Social Security denying her application for disability insurance benefits (“DIB”). Gina asks the
Court to reverse and remand the administrative law judge’s (“ALJ”) decision, and the
Commissioner moves for its affirmance. For the following reasons, the Court affirms the ALJ’s
decision.
BACKGROUND
In January 2016, Gina suffered a concussion after she was hit in the head by a hockey puck
at a minor league hockey game. (R. 486, 551). On August 15, 2017, Gina applied for disability
insurance benefits at age 49, alleging disability since September 2, 2016 due to post-concussion
syndrome and Sjogren’s Syndrome. Id. at 63-64. Prior to her alleged onset date, Gina worked as
a chief accounting officer at a manufacturing company. Id. at 185. As a result of her concussion,
Gina experienced headaches, photophobia, phonophobia, nausea, noise sensitivity, balance
trouble, and cognitive issues. Id. at 486. Her symptoms worsen with over-exertion, and she was
Pursuant to Northern District of Illinois Internal Operating Procedure 22, the Court refers to Plaintiff by
her first name and the first initial of her last name or alternatively, by first name.

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ultimately unable to keep doing her job. Id. at 502, 575. Gina’s symptoms were treated with
medication and physical therapy. Id. at 313, 639, 696, 700. Also, Gina received treatment in the
neurology department of the Mayo Clinic, where she underwent a comprehensive neurological
examination. Id. at 696-708.
On June 24, 2019, the ALJ issued a decision denying Gina’s application for disability
benefits. Id. at 13-23. The opinion followed the required five-step evaluation process. 20 C.F.R.
§ 404.1520. At step one, the ALJ found that Gina had not engaged in substantial gainful activity
since September 2, 2016, the alleged onset date. Id. at 15. At step two, the ALJ found that Gina
had the severe impairments of traumatic brain injury and neurocognitive disorders. Id. At step
three, the ALJ determined that Gina did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). Id. at 16.
The ALJ then concluded that Gina retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 404.1567(b), except that Gina can: lift and/or carry
20 pounds occasionally and 10 pounds frequently; sit for 6 hours out of an 8 hour workday and
stand and/or walk for 6 hours out of an 8-hour workday; understand, remember and carry out
simple and detailed tasks with no fast-paced tasks; and adapt to routine changes in a work
environment. Id. at 17. As a result of the RFC finding, the ALJ determined at step four that Gina
could not perform any of her past relevant work. Id. at 21. However, at step 5 the ALJ found that
Gina had the RFC to perform occupations such as cashier, sales attendant, and hotel housekeeper.
Id. at 22-23. Because of this determination, the ALJ found that Gina was not disabled. Id. at 23.
The Appeals Council denied Gina’s request for review on May 11, 2020, leaving the ALJ’s

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decision as the final decision of the Commissioner. Id. at 1; Prater v. Saul, 947 F.3d 479, 481 (7th
Cir. 2020).
DISCUSSION
Under the Social Security Act, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine whether
a claimant is disabled, the ALJ conducts a five-step inquiry: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals any of the listings found in the regulations, see 20 C.F.R. § 404, Subpt.
P, App. 1 (2004); (4) whether the claimant is unable to perform her former occupation; and (5)
whether the claimant is unable to perform any other available work in light of her age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4); Young v. Sec’y of Health & Human Servs., 957
F.2d 386, 389 (7th Cir. 1992); Zalewski v. Heckler, 760 F.2d 160, 162 (7th Cir. 1985). These steps
are to be performed sequentially. 20 C.F.R. § 404.1520(a)(4). “An affirmative answer leads either
to the next step, or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer
at any point, other than step 3, ends the inquiry and leads to a determination that a claimant is not
disabled.” Zalewski, 760 F.2d at 162.
Judicial review of the ALJ’s decision is limited to determining whether the ALJ’s findings
are supported by substantial evidence or based upon a legal error. Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002). Substantial evidence is “more than a mere scintilla” and means only
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Furthermore, the Court may not “reweigh

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evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment for that of
the” ALJ’s. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). Nonetheless, where the
Commissioner’s decision “lacks evidentiary support or is so poorly articulated as to prevent
meaningful review, the case must be remanded.” Steele, 290 F.3d at 940.
In support of her request for reversal and remand, Gina makes two arguments: (1) the ALJ’s
assessment of the medical opinion evidence is unsupportable and premised on impermissible
inferences; and (2) the ALJ failed to consider Gina’s limitations arising out of the combination of
her impairments in the RFC analysis. Because the ALJ’s decision is supported by more than a
mere scintilla of evidence and a reasonable mind can accept this evidence as adequate to support
the conclusion, the Court affirms.
A.

Medical Opinion Evidence
Gina challenges the ALJ’s evaluation of her treating doctors’ medical opinions, the non-

examining State agency consultants’ opinions, and a consultive psychological examiner’s opinion.
Gina submitted medical opinion evidence from two of her treating physicians: Drs. Steven
Eisenstein and James Castle. Both completed an RFC statement. (R. 969-976). Gina also
submitted a psychological evaluation from a psychologist, Dr. Grant Boyer. The ALJ determined
that the medical opinions were unpersuasive.
Given Gina’s filing date, the ALJ’s evaluation of the medical opinion evidence was subject
to new regulations pertaining to claims filed on or after March 27, 2017. 20 C.F.R. § 404.1520c
(2017). Under the new regulations, the ALJ “will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior administrative medical finding(s),
including those from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). An ALJ is only
required to articulate “how persuasive [he] find[s] all of the medical opinions and all of the prior
administrative medical findings in [a claimant’s] case record.” 20 C.F.R. § 404.1520c(b). The
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regulations direct the ALJ to consider the persuasiveness of medical opinions using several listed
factors, including supportability, consistency, relationship with the claimant, specialization, and
other factors that tend to support or contradict a medical opinion or prior administrative medical
finding. 20 C.F.R. § 404.1520c(a), (c). Supportability and consistency are the two most important
factors. 20 C.F.R. § 404.1520c(a). An ALJ must explain how he considered the factors of
supportability and consistency in his decision, but he is not required to explain how he considered
the other factors. 20 C.F.R. § 404.1520c(b)(2). In assessing supportability, “[t]he more relevant
the objective medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) ... the more persuasive the medical opinions ... will be.” Id
at C.F.R. § 404.1520c(c)(1). As to consistency, “[t]he more consistent a medical opinion ... is with
the evidence from other medical sources and nonmedical sources in the claim, the more persuasive
the medical opinion(s) ... will be.” Id. at C.F.R. § 404.1520c(c)(2).
1. Treater Opinions of Drs. Steven Eisenstein and James Castle
Regarding the treater medical opinions of Drs. Steven Eisenstein and James Castle, Gina
primarily argues that the ALJ erred in his analysis because he employed the same rationale in
finding the two opinions unpersuasive. Before addressing Gina’s argument further, the Court notes
that that the basis for Gina’s argument is unclear and she does not provide any authority to support
her position. See Roth v. Berryhill, No. 17 C 50196, 2018 WL 6100904, at *4 (N.D. Ill. Nov. 21,
2018) (noting that the claimant merely presented a long list of evidence from the record, without
“providing any analysis, arguments, or case law to support her position that the ALJ’s decision
required remand.”). Nevertheless, the Court finds no error in the ALJ’s evaluation of Drs. Steven
Eisenstein’s and James Castle’s medical opinions.

The ALJ sufficiently considered their

supportability and consistency and minimally articulated his reasoning.

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Dr. Eisenstein has been Gina’s primary care physician for over twenty years. (R. 904). He
completed an RFC statement on January 3, 2019. Id. at 973-976. In this form, Dr. Eisenstein: (1)
listed Gina’s diagnosis as post-concussion syndrome, insomnia, and headache disorder with
symptoms of poor concentration, headache, fatigue, photosensitivity, hyperacusis, tinnitus, and
dizzy when tired; (2) noted that her prognosis was fair; (3) determined that Gina can stand and
walk only for about an hour in an eight hour work day, sit for eight hours, and occasionally lift
more than ten pounds; and (4) predicted that Gina would need to lie down one to three hours during
breaks, take one to two unscheduled breaks, and be off task more than thirty percent of the time.
Id.
Dr. James Castle is a neurologist that Gina started seeing in February 2016, after her hockey
puck accident. Dr. Castle completed an RFC statement on December 20, 2018. Id. at 969-972. In
this form, Dr. Castle: (1) listed Gina’s diagnosis as post-concussion syndrome with symptoms of
headaches, cognitive trouble, fatigue, photophobia, phonophobia, hyperacusis, and balance issues;
(2) noted that her prognosis was poor; (3) determined that Gina can stand and walk for less than
an hour, sit for less than an hour, and rarely lift more than five pounds; and (4) predicted that Gina
would need unscheduled breaks every five minutes, need to rest three hours before returning to
work, and be off task more than thirty percent of the time. Id.
The ALJ found both Drs. Steven Eisenstein’s and James Castle’s opinions not persuasive
due to a lack of support or consistency with the overall record. (R. 20). In his analysis of both
treater opinions, the ALJ considered that the record only showed occasional instances of dizziness,
headaches, an ataxic gait pattern, mild difficulty with toe walk, and mild imbalance when standing
on one foot with the eyes closed. Id. Also, the ALJ considered that Gina’s overall neurological
examination were normal and unremarkable, that her objective examinations showed mild

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findings, and that the record did not show any motor or muscle weakness. Id. Finally, the ALJ
noted that Gina’s headaches improved with treatment.
Gina is correct that the ALJ listed the same record evidence in finding that both treater
opinions were unpersuasive. However, Gina is incorrect that the ALJ’s rationale is unsupported
by the record. The Court also reads the ALJ’s decision as a whole, and when read in totality, it
demonstrates that the ALJ’s decision is supported by more than a scintilla of evidence. See Rice v.
Barnhart, 384 F.3d 363, 370 (7th Cir. 2004); Winsted v. Berryhill, 923 F.3d 472, 478 (7th Cir.
2019). First, the ALJ sufficiently supported his statement that “the record shows occasional
instances of dizziness, headaches, an ataxic gait pattern, mild difficulty with toe walk, and mild
imbalance when standing on one foot with the eyes closed.” (R. 20). In support of that statement,
the ALJ cited to a 2016 physical therapy evaluation where Gina complained of dizziness. Id. at 19,
313. The ALJ also cited to a 2017 internal medicine consultive examination noting Gina’s mild
difficulty with toe walk, and two 2018 progress notes from Dr. Castle noting that a gait test
revealed some imbalance when Gina stood with one foot out front, and eyes closed. Id. 19, 734,
803, 999. The ALJ then noted a February 2018 progress note stating that Gina still experienced
occasional headaches and dizziness if she exerted herself. Id. at 19, 980. Next, the ALJ referenced
a June 2018 progress note from Dr. Castle indicating that Gina’s memory, cognitive issues, fatigue,
headache, and balance issues exacerbate when she overdoes activity. Id. at 19, 996.
Second, the ALJ sufficiently supported his statement that Gina’s “overall neurological
examinations are normal and unremarkable,” that her “objective examinations showed mild
findings,” and that “the record did not show any motor or muscle weakness.” (R. 20). In support
of this statement, the ALJ considered a 2016 physical exam which states that Gina was alert, with
a normal gait, and had five out of five strengths of her extremities, grip, and joints. Id. at 19, 290.

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Next, the ALJ again cited to a 2017 internal medicine consultive examination noting that Gina’s
gait was normal, her grip strength was five out of five, her motor exam was normal, and her
extremity strength was a five out of five. Id. at 19, 734. The 2017 evaluation also indicated that
Gina was alert and oriented, that her remote memory appeared to be intact, and that during the
exam she displayed a normal range of reasoning, comprehension, and concentration. Id. at 734.
The ALJ then considered a 2018 progress note stating that Gina was in good spirits with normal
speech and language, that her cognition, coordination, and gait were normal, and that she had no
weakness. Id. at 19, 981. The ALJ also cited to a June 2018 progress note from Dr. Castle, stating
that Gina’s symptoms of memory loss, cognitive issues, headaches, photo and phonophobia were
worsened when she overdoes activity. Id. at 19, 996. The ALJ also considered a July 2018 exam
by Dr. Eisenstein indicating that Gina was alert and oriented with subjective dizziness. Id. at 19,
1011. Further, the ALJ considered a December 2018 progress note by Dr. Castle indicating a
normal examination of Gina’s mental status, cranial nerves, motor, and gait. Id. 19, 1050. That
progress note also stated that Gina should continue with light activity and no work. 2 Id. Finally,
the ALJ, considered a February 2018 progress note indicating that Gina’s headaches were
improving. Id. at 980. Thus, the ALJ’s analysis of the treater opinions is sufficiently explained as
to supportability and consistency, and in sum, the ALJ found that the treater opinions were
unpersuasive with the record as a whole. That the ALJ considered the same record evidence in its

In the treater opinion section of Gina’s argument, she specifically points to Dr. Castle’s recommendation
that Gina refrain from work. Doc. [14] at 9. However, a claimant “is not entitled to disability benefits
simply because a physician finds that the claimant is ‘disabled’ or ‘unable to work.” Clifford v. Apfel, 227
F.3d 863, 870 (7th Cir. 2000); see Ray v. Saul, 861 F. App’x 102, 105 (7th Cir. 2021) (“The ALJ found that
Dr. Zaragoza went too far by offering an opinion on the ultimate issue—whether Ray was disabled during
the relevant period, a question reserved for the Commissioner.”).
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analysis of the treater opinions does not diminish the ALJ’s thorough articulation. As such, the
Court finds no error in the ALJ’s evaluation of the treater opinions.
2. State Agency Psychological Consultants and Dr. Boyer
Turning to the psychological opinions, the State agency consultants Dr. David Voss and
Dr. Michael Schneider both opined that Gina had mild limitations in understanding, remembering,
or applying information, and in concentrating, persisting, or maintaining pace. (R. 21). Further,
the State agency consultants determined that Gina had no limitation to interact with others and to
adapt or manage oneself. Id. Ultimately the State agency consultants found that Gina’s mental
impairments were non-severe. Id.

The ALJ found the State agency consultants’ opinions

unpersuasive because of a lack in consistency and support with the overall record, and because the
records submitted at the hearing level supported the need for additional limitations. Id.
Dr. Boyer concluded that Gina had a moderate to extreme limitation to understand,
remember, and carry out instructions. Id. at 21. He also found that Gina had a mild to marked
limitation to interact and relate with others. Id. The ALJ found Dr. Boyer’s opinion unpersuasive
because of lack in consistency and support with the overall record, and because Dr. Boyer based
his opinion on Gina’s subjective reports. Id. Further, in his evaluation of the State agency
consultants and Dr. Boyer, the ALJ considered that “apart from difficulty with memory retrieval,
Gina’s overall mental examinations were normal and unremarkable,” that “a 2016 psychometric
evaluation in November 2016 was normal and unremarkable,” and that Gina’s “cognitive issues
worsen with overstimulation or with increased activities.” Id.
Gina suggests that it was illogical for the ALJ to utilize the same reasoning in his analysis
of the State agency opinions (that found Gina has only mild limitations) and Dr. Boyer’s opinion

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(that found Gina is more aggressively limited). Doc. [14] at 10. Again here, Gina does not provide
any authority in support of her argument and does not consider the totality of the ALJ’s analysis.
Like with the ALJ’s analysis of Gina’s treaters, the ALJ used the same record evidence and
rationale in finding the three psychological opinions unpersuasive. The ALJ also explained the
record evidence he considered in more detail in the prior paragraphs on page nineteen of his
decision. The Court has no quarrel with the ALJ’s analysis because the ALJ minimally articulated
his reasoning and the decision is supported by more than a mere scintilla of evidence.
First, in support of the ALJ’s statement that “apart from difficulty with memory retrieval,
Gina’s overall mental examinations were normal and unremarkable,” the ALJ considered Dr.
Boyer’s note from a February 2019 evaluation that Gina’s speech was clear, related and goal
directed, and that her thought processes were intact. Id. at 19, 21, 1078. That 2019 note also stated
that some of Gina’s memory retrieval was difficult, and that she was tangential at times. Id. The
ALJ also considered a 2017 Mayo Clinic note stating that Gina’s mood and affect were normal
and that she was oriented to person, place, and time. Id. at 19, 715. The ALJ next considered a
2017 psychological evaluation indicating that Gina had adequate hygiene and grooming, that her
mood was appropriate, that Gina was oriented to person, place, and time, that she correctly stated
her date of birth and address, that she was able to remember five digits forward and three digits
backward, that she correctly named the past five presidents, that she correctly named five large
cities, and correctly subtracted 7’s from 100. Id. at 19, 738. Furthermore, the ALJ considered a
June 2016 progress note stating that Gina was alert, with normal dress and demeanor, good eye
contact, speech, and judgment intact, and normal recent and remote memory. Id. at 19, 790.
Similarly, the ALJ considered a January 2019 progress note indicating that Gina was alert, with
normal dress and demeanor, good eye contact, speech, and judgment intact, and normal recent and

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remote memory. Id. at 19, 1065. The ALJ also considered a June 2016 cognitive test showing a
high score in attention, orientation, and memory. Id. at 19, 999. Second, in support of the ALJ’s
statement that a “2016 psychometric evaluation in November 2016 was normal and
unremarkable,” the ALJ cited to a Mayo Clinic psychometric testing that was negative for
cognitive dysfunction. Id. at 19, 21, 706, 707. Third, in support for the ALJ’s statement that Gina’s
“cognitive issues worsen with overstimulation or with increased activities,” the ALJ considered
Dr. Powell’s note, based on Gina’s description, that her post-concussion symptoms would come
on when she was overstimulated or fatigued, and Dr. Castle’s progress note in June 2018 indicating
that Gina’s symptoms increase with activity. Id. at 19, 21, 707, 996.
Additionally, the ALJ stated that he did not find the State agency consultants’ opinions
persuasive because “additional records were submitted at the hearing level in support of additional
limitations.” (R. 20-21). The ALJ’s consideration of additional records is appropriate because “an
ALJ should not rely on an outdated assessment if later evidence containing new, significant
medical diagnoses reasonably could have changed the reviewing physician’s opinion.” Moreno v.
Berryhill, 882 F.3d 722, 728 (7th Cir. 2018). Further, the ALJ stated that he found Dr. Boyer’s
opinion unpersuasive because Dr. Boyer’s based his opinion on Gina’s subjective reports. The
ALJ’s consideration was adequate here as well because it is appropriate for an ALJ to discount
medical opinion findings that are largely based on subjective complaints. See Winsted, 923 F.3d
at 478.
Therefore, similar to the ALJ’s treating physician analysis, the ALJ here sufficiently
articulated how he considered the supportability and consistency of the psychological opinions.
The ALJ evaluated the record and weighed the evidence.

Yet, Gina asserts that the ALJ

impermissibly played doctor because his medical opinion evaluation lacked meaningful analysis.

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Doc. [14] at 11. However, Gina fails to indicate what specific medical finding the ALJ improperly
interpreted at his own volition. Importantly, the ALJ has the “final responsibility” for assessing a
claimant’s RFC and “need not adopt any one doctor’s opinion.” Fanta v. Saul, 848 F. App’x. 655,
658 (7th Cir. 2021). As the Seventh Circuit instructed in Vang v. Saul, 805 F. App’x. 398, 401-02
(7th Cir. 2020), the ALJ must “consider all limitations supported by [the] record evidence” and
“tie the record evidence to the limitations included in the RFC finding,” but he need not match
RFC conclusions item-by-item with medical opinions. The ALJ did what the regulations require,
and he did not play doctor; he substantially evaluated the opinions as to supportability and
consistency and determined that the medical opinions were unpersuasive while relying upon the
objective medical records to craft the RFC. 3
B.

RFC
Gina next argues that the ALJ’s RFC determination failed to consider her limitations

arising out of all of her impairments in combination. The RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work setting on a regular

Included in the last paragraph of Gina’s challenge of the ALJ’s medical opinion assessment is the assertion
that the ALJ undermined Gina’s symptoms. Gina argues that the ALJ improperly suggested that she
exaggerated her symptoms when he considered that the record showed no hospitalizations lasting more than
24 hours, and when he considered Gina’s daily activities. Doc. [14] at 10. To begin, Gina does not challenge
the ALJ’s subjective symptom analysis as patently wrong. Nevertheless, “an ALJ is not required to accept
all of a claimant’s subjective allegations, . . . [and] can consider[] the lack of inpatient care as evidence that
[the claimant’s] symptoms were not acute.” Charmaine R. v. Saul, No. 18 C 7955, 2021 WL 83737, at *6
(N.D. Ill. Jan. 11, 2021). As such, the ALJ made no error in considering that that the record showed no
hospitalizations. Further, the Seventh Circuit has said that it is permissible to “examine all of the evidence,
including a claimant’s daily activities, to assess whether testimony about the effects of [the claimant’s]
impairments [are] credible or exaggerated.” Morrison, 806 F. App’x at 475. Gina makes the claim that the
ALJ improperly considered her daily activities in various sections of her brief, yet the result is the same.
That is, the ALJ properly considered Gina’s daily activities “to see if they corroborated her pain claims,
and [the ALJ] found that they did not.” Deborah M. v. Saul, 994 F.3d 785, 791 (7th Cir. 2021). At no point
did the ALJ impermissibly discuss her daily activities to demonstrate that Gina absolutely had the ability
to work. See Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013); Montalto v. Berryhill, No. 17 C 5976,
2019 WL 1405602, at *7 (N.D. Ill. Mar. 28, 2019). Thus, no error was made.
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and continuing basis. A “regular and continuing basis” means 8 hours a day, for 5 days a week,
or an equivalent work schedule. SSR 96-8p. Again, “an ALJ need only include limitations [in the
RFC] that are supported by the medical record.” Reynolds v. Kijakazi, 25 F.4th 470, 473 (7th Cir.
2022).
Specifically, in challenging the RFC, Gina argues that the ALJ did not provide a more
detailed assessment of the “B criteria” for purposes of the RFC. Doc. [14] a 13. 4 If a claimant “has
a medically determinable mental impairment, then the ALJ must document that finding and rate
the degree of functional limitation in four broad areas,” which includes the category of
“concentration, persistence, or pace.” Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008) (citing 20
C.F.R. § 404.1520a(c)(3)); see also Davis v. Berryhill, 723 F. App’x 351, 356 (7th Cir. 2018).
These functional areas are known as the “B criteria.” Craft, 539 F.3d at 674. The ALJ will rate a
claimant’s degree of limitation in the four broad areas according to the following five-point scale:
“[n]one, mild, moderate, marked, and extreme.” 20 C.F.R. § 404.1520a(c)(4). If the ALJ rates the
degree of a claimant’s limitations as “none” or “mild,” the ALJ will “generally conclude that [a
claimant’s] impairment(s) is not severe, unless the evidence otherwise indicates that there is more
than a minimal limitation in [the claimant’s] ability to do basic work activities[.]” 20 C.F.R. §
404.1520a(d)(1). Yet, the ALJ “must remember that the limitations identified in the ‘paragraph
B’ and ‘paragraph C’ criteria are not an RFC assessment[.]” SSR 96-8p, 1996 WL 374184, at *4
(July 2, 1996).

Mixed in her RFC argument, Gina claims that the ALJ ignored Dr. Boyer’s recommended limitations in
functioning at Step 3 of the evaluation. Doc. [14] at 11-12. However, this argument is perfunctory and
undeveloped because Gina does not claim that her impairments meet or equal a listing level severity at Step
3. For that reason, the argument is waived and the Court will not address this further. Overton v. Saul, 802
F. App’x 190, 193 (7th Cir. 2020); Krell v. Saul, 931 F.3d 582, 586 n.1 (7th Cir. 2019).

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In his step 2 analysis the ALJ found that Gina had: (1) a moderate limitation in
understanding, remembering, and applying information; (2) a moderate limitation in
concentrating, persisting, or maintaining pace; (3) and a moderate limitation in adapting or
managing oneself. (R. 16-17). However, his analysis of Gina’s neurocognitive disorder did not
stop there. Contrary to Gina’s claim that the ALJ did little more than make sweeping statements
regarding her mental status examinations, the ALJ thoroughly considered Gina’s medical records
regarding her neurocognitive disorder and stated that Gina could perform light exertional work
with mental limitations to account for her memory, concentration, and adaptation deficits. Id. at
19-21.
Further, in her RFC analysis the ALJ considered records showing that during a
psychological evaluation, Gina had difficulty with memory and that her overall mental
examinations showed full orientation, normal recent and remote memory, normal speech and
judgment, adequate grooming, and normal concentration. Id. The ALJ also noted Gina’s high
score on a cognitive assessment. Id. Further, the ALJ considered an intelligence test where it was
determined that Gina did not have any cognitive dysfunction. Id. The ALJ considered that Gina’s
symptoms worsen with over-exertion. Id. Next, the ALJ considered Gina’s testimony that she
experienced problems with balance and dizziness, that she is able to walk half a mile but has
difficulty standing for long periods because of fatigue, that she has difficulty remembering things,
that her family helps her cook meals and do housework, that she is able to wash dishes, do gentle
yoga, shop for groceries, and volunteer at a nursing home, that she has no difficulty interacting
with others, and that she does not see a mental health professional Id. at 18. Finally, to account
for Gina’s mental limitations including memory, concentration, and adaptation deficits, the ALJ
determined that Gina could perform light work, but could only understand, remember, and carry

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out simple and detailed tasks, with no fast-paced tasks, and can adapt to routine changes in a work
environment. Id. at 17.

The ALJ more than minimally articulated Gina’s neurocognitive

limitations in the RFC analysis.
Moreover, the ALJ’s analysis here is distinguishable from other cases where the ALJ did
not offer any analysis connecting the functional limitations found at step 2 with the RFC. See
Anthony W. v. Kijakazi, No. 20 C 6209, 2022 WL 1062334, at *4 (N.D. Ill. Apr. 8, 2022)
(remanding where the ALJ did not account for the claimant’s functional limitations in her RFC
analysis at all); Barbara B. v. Kijakazi, No. 20 CV 547, 2021 WL 5937766, at *2 (N.D. Ill. Dec.
16, 2021) (remanding where the ALJ formulated an RFC that lacked any “mental health
restrictions and failed to explain why limitations were not warranted.”). Here, the ALJ sufficiently
discussed Gina’s documentary and testimonial evidence regarding her neurocognitive disorder and
included restrictions in the RFC based on her mental limitations.
Relatedly, Gina argues that the ALJ’s RFC restrictions did not adequately account for
Gina’s limitations in concentration, persistence or pace. Doc. [14] at 14. Importantly, Gina does
not accurately state the restrictions the ALJ found in the RFC. Gina claims that the ALJ limited
her to “simple routine tasks with simple work-related decisions.” Doc. [14] at 14. However, the
ALJ’s RFC restrictions actually stated that Gina can “understand, remember, and carry out simple
and detailed tasks, with no fast-paced tasks,” . . . and “can adapt to routine changes in a work
environment.” (R. 17). This is more specific than Gina has represented.
Furthermore, “concentration, persistence, or pace refers to the ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate completion of
task commonly found in work settings.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00C(3) (2016).
An ALJ need not use the specific words “concentration, persistence, and pace,” so long as he

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accounts for the totality of the claimant’s limitations in the RFC. Morrison v. Saul, 806 F. App’x
469, 473–74 (7th Cir. 2020); Martin v. Saul, 950 F.3d 369, 374 (7th Cir. 2020). Generally,
employing terms like simple, repetitive tasks in the RFC on their own is insufficient to present the
claimant’s limitations in CPP. Winsted, 923 F.3d at 477. This is because the terms “simple,
routine, and repetitive tasks” refer to “unskilled work,” which the regulations define as work that
can be learned by demonstration in less than 30 days, but “the speed at which work can be learned
is unrelated to whether a person with mental impairments—i.e., difficulties maintaining
concentration, persistence, or pace—can perform such work.” Lanigan v. Berryhill, 865 F.3d 558,
565-66 (7th Cir. 2017); O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010) (citations
omitted) (“The ability to stick with a given task over a sustained period is not the same as the
ability to learn how to do tasks of a given complexity.”).
Nevertheless, terms like simple and repetitive tasks may still be employed to account for
CPP limitations in certain cases. For example, in Jozefyk v. Berryhill, the Seventh Circuit affirmed
the ALJ’s RFC restrictions of simple, repetitive tasks and limited interactions with others to
accounted for the claimant’s moderate CPP limitations. 923 F.3d 492, 498 (7th Cir. 2019). The
Seventh Circuit found that such language was sufficient because the record medical evidence
showed mental limitations present only when the claimant was with other people or in a crowd,
and because there was a lack of testimony and medical evidence supporting CPP limitations.
Jozefyk, 923 F.3d at 498; Crump v. Saul, 932 F.3d 567, 571 (7th Cir. 2019).
Here, the ALJ specifically stated that the RFC limitations he found account for Gina’s
mental limitations to account for memory, concentration, and adaptation deficits. Regarding CPP,
the ALJ’s RFC here included restrictions for concentration and pace. See Lockett v. Saul, 834 F.
App’x 236, 239 (7th Cir. 2020) (“A moderate rating in maintaining concentration, persistence, and

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pace means the claimant is so limited in at least one of those areas, not necessarily all three.”).
The remaining RFC restrictions of “understanding and remembering simple and detailed tasks and
adapting to routine changes in a work environment” pertain to the moderate limitations the ALJ
found in understanding, remembering, and applying information and in adapting or managing
oneself. Therefore, the ALJ adequately accounted for the only CPP deficits that the ALJ found
were supported by the record. See Morrison, 806 F. App’x at 473 (affirming an RFC limitation of
“simple and detailed, one to five step instructions” where the ALJ determined that it “adequately
accounted for the only deficits in concentration, persistence, and pace that the ALJ found supported
by the record.”). Moreover, Gina does not offer any additional restrictions that she believes should
be included in the RFC. See Recha v. Saul, 843 F. App’x 1, 5 (7th Cir. 2021) (finding that the
claimant did “not provided any other credible medical evidence indicating that his symptoms
required additional RFC restrictions to account for CPP limitations beyond those included in the
ALJ’s decision.”). Thus, nothing more is required in the RFC to account for Gina’s CPP
limitations.
CONCLUSION
For the reasons set forth above, Gina’s request for reversal and remand [14] is denied, the
Acting Commissioner’s motion for summary judgment [17] is granted, and the ALJ’s decision is
affirmed.
SO ORDERED.
Dated: May 9, 2022

______________________________
Sunil R. Harjani
United States Magistrate Judge

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