Derry v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner is REMANDED for further proceedings consistent with this order. ***Civil Case Terminated. Signed by Magistrate Judge Andrew P Rodovich on 2/28/17. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROBERT LEE DERRY,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Case No. 1:15-cv-396
OPINION AND ORDER
This matter is before the court on petition for judicial review of the decision of the
Commissioner filed by the plaintiff, Robert Lee Derry, on December 23, 2015.2 For the
following reasons, the decision of the Commissioner is REMANDED.
The plaintiff, Robert Lee Derry, filed an application for Disability Insurance Benefits and
Supplemental Security Income on April 1, 2013, alleging a disability onset date of May 3, 2012.
(Tr. 43). The Disability Determination Bureau denied Derry’s application on May 28, 2013, and
again upon reconsideration on July 26, 2013. (Tr. 43). Derry subsequently filed a timely request
for a hearing on August 29, 2013. (Tr. 43). A hearing was held on February 14, 2014, before
Administrative Law Judge (ALJ) Maryann S. Bright, and the ALJ issued an unfavorable decision
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
On April 1, 2016, this case was reassigned to Magistrate Judge Susan L. Collins upon the parties’ consent
under 28 U.S.C. § 636(c), and then was reassigned to Magistrate Judge Andrew P. Rodovich. On October 12, 2016,
the court ordered the parties to file any objection to Magistrate Judge Rodovich conducting all further proceedings in
this case. Because neither party filed an objection, this court finds that the parties voluntarily consent to Magistrate
Judge Rodovich under 28 U.S.C. § 636(c).
on May 14, 2014. (Tr. 43-53). Vocational Expert (VE) Sharon D. Ringenberg and Derry
testified at the hearing. (Tr. 43). The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. (Tr. 1-3).
The ALJ found that Derry met the insured status requirements of the Social Security Act
through March 31, 2017. (Tr. 45). At step one of the five step sequential analysis for
determining whether an individual is disabled, the ALJ found the Derry had not engaged in
substantial gainful activity since May 3, 2012, the alleged onset date. (Tr. 45). At step two, the
ALJ determined that Derry had the following severe impairments: obesity, bipolar I disorder,
and polysubstance dependence. (Tr. 45). The ALJ concluded that a knee injury mentioned by
Derry was not a medically determinable impairment. (Tr. 45). There were no medical records of
the injury or allegations that it hindered him in any way. (Tr. 45). Also, the ALJ indicated that
there was no evidence in the physicians’ chart notes, reports, or any allegations made by Derry or
others that his obesity taken singly or in combination with other impairments reached the level of
medical equivalence to a listing. (Tr. 46).
At step three, the ALJ concluded that Derry did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments. (Tr.
46). Specifically, the ALJ determined that Derry’s mental impairments did not meet or
medically equal listing 12.04, Affective Disorders, or 12.09, Substance Addiction Disorders.
(Tr. 46). She considered the paragraph B criteria for mental impairments, which required at least
two of the following:
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration.
(Tr. 46). The ALJ defined a marked limitation as more than moderate but less than extreme and
repeated episodes of decompensation, each of extended duration, as three episodes within one
year or once every four months with each episode lasting at least two weeks. (Tr. 46).
The ALJ found that Derry had mild restrictions in daily living activities. (Tr. 46). She
noted that Derry did household chores, prepared meals, shopped for groceries, and cared
appropriately for his grooming and hygiene. (Tr. 46). The ALJ found that Derry had moderate
difficulties in social functioning. (Tr. 46). The ALJ noted that Derry did not have a history of
altercations or difficulty getting along with authority figures. (Tr. 46). Derry indicated that he
avoided social interaction because of mood swings and paranoia. (Tr. 46). However, he testified
that he was able to deal with cashiers when shopping and with acquaintances when playing
tabletop games. (Tr. 46).
The ALJ found that Derry had moderate difficulties in concentration, persistence, or
pace. (Tr. 46). Derry indicated that he had difficulty concentrating, but acknowledged that he
could pay attention up to three hours at a time. (Tr. 46). Later, he reported a 30 minute period of
attention, which the ALJ noted as inconsistent with his testimony that playing tabletop games
could last for about two hours. (Tr. 46). Derry had well developed mental arithmetic skills and
did several serial 7 subtractions quickly and without error at the consultative psychological
examination. (Tr. 46). The consultative psychologist determined that Derry’s long-term,
intermediate, and short-term memory was intact. (Tr. 46-47).
Derry testified that he had episodes of crying spells and emotional breakdowns. (Tr. 47).
He indicated that his uncontrollable crying had lasted at least an hour and, rarely it would last up
to four hours. (Tr. 47). The ALJ noted that episodes like this, if frequent enough, interfered with
concentration, persistence, or pace. (Tr. 47). The VE testified that three absences or
unauthorized departures per month would preclude employment. (Tr. 47). The ALJ found that
Derry had not shown that he had or was expected to have a period of 12 months of crying spells
that would interfere with his employment. (Tr. 47).
The ALJ indicated that after the alleged onset date Derry’s mood was better after a
medication change. (Tr. 47). Derry reported that he had made plans to attend school and to care
for his sick aunt, and that he was experiencing little depression. (Tr. 47). In November 2012,
Derry reported that he was sharp with others but that he was not experiencing any depression.
(Tr. 47). On December 14, 2012, Derry indicated for the first time since his alleged onset date
that he had mood changes of sadness and tearfulness. (Tr. 47).
In January of 2013, Derry spent two days as an in-patient. (Tr. 47). Derry was crying,
overwhelmed, and depressed, which the mental health professionals attributed to him running out
of medication. (Tr. 47). Derry was restarted on his medications, with a slight change, and in late
January reported that his mood was stable and he had no racing thoughts or thoughts to harm
himself or others. (Tr. 47). In February 2013, Derry reported to a few bad days, but in March of
2013 he complained of feelings of anger. (Tr. 47). In April, June, and July of 2013, his crying
spells occurred once or more per week. (Tr. 47). In August, after being compliant with his
medications, a treating board-certified clinical nurse indicated that he was slightly better. (Tr.
However, a few days later in August, Derry took an excessive dose of prescription
medication and was treated as an in-patient at Parkview Hospital for six days and later released
with follow up out-patient therapy. (Tr. 47). Derry indicated that it was not a suicide attempt.
(Tr. 47). He became compliant with his medications and was reported as “slightly better” until
he ran out of medication in November 2013. (Tr. 47). A clinical nurse specialist reported in
January of 2014 that Derry was much better, although he had paranoid thoughts and some
impaired recent memory. (Tr. 47-48). Derry reported that in the past three months he had only
one bad mood swing. (Tr. 48).
The ALJ noted that the record indicated that Derry had frequent emotional breakdowns
from April through July of 2013, however, that was less than the 12 months as required by the
Social Security regulations. (Tr. 48). Also, the ALJ found that Derry had experienced episodes
of decompensation, but none of extended duration. (Tr. 48). The ALJ noted that Derry was an
in-patient in January of 2013 because of having run out of medications and in August 2013 as a
result of an intentional recreational overdosing on prescription medication. (Tr. 48). Derry did
not satisfy the paragraph B criteria because his mental impairments did not cause at least two
marked limitations or one marked limitation and repeated episodes of decompensation of
extended duration. (Tr. 48).
Additionally, the ALJ found that Derry did not meet the requirements for paragraph C.
(Tr. 48). She indicated that Derry did not have repeated episodes of decompensation and
concluded that a marginal adjustment in mental demands or an environmental change would not
cause Derry to decompensate. (Tr. 48). The ALJ also stated that there was no evidence that
Derry could not function outside his home or a highly supportive living arrangement. (Tr. 48).
The ALJ then assessed Derry’s residual function capacity (RFC) as follows:
the claimant has the residual function capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant
can lift, carry, push and pull 50 pounds occasionally and 25 pounds
frequently; can stand or walk for approximately 6 hours out of an 8-hour
workday; can sit for approximately 6 hours out of an 8-hour workday,
with normal breaks; can frequently climb ramps and stairs; can
frequently balance, stoop, kneel, crouch, and crawl; can occasionally
climb ladders, ropes, or scaffolds; must avoid frequent exposure to
extreme cold, unprotected heights and open and dangerous machinery;
cannot engage in complex or detailed tasks, but can perform simple,
routine, repetitive tasks consistent with unskilled work; can sustain and
attend to tasks throughout the eight-hour workday; is limited to
superficial interaction with coworkers, supervisors and the public, with
superficial interaction defined as occasional and casual contact not
involving prolonged conversation or discussion of involved issues, but
contact with supervisors still involves necessary instruction; is best
suited to working in semi-isolation from others or as part of a small
group; is limited to low stress work defined as having only occasional
decision-making required and with only occasional changes in the work
setting; and is limited to work with no production rate or pace work.
(Tr. 48-49). The ALJ explained that in considering Derry’s symptoms she followed a two-step
process. (Tr. 49). First, she determined whether there was an underlying medically determinable
physical or mental impairment that was shown by a medically acceptable clinical and laboratory
diagnostic technique that reasonably could be expected to produce Derry’s pain or other
symptoms. (Tr. 49). Then, she evaluated the intensity, persistence, and limiting effects of the
symptoms to determine the extent to which they limited Derry’s functioning. (Tr. 49).
Derry testified to living with his parents and helping care for his mother who was ill. (Tr.
49). Also, he drove to the grocery store and ran other errands for two to three hours per week.
(Tr. 49). He testified that while working he would have “emotional breakdowns” once every
week or every two weeks. (Tr. 49). These breakdowns consisted of uncontrollable crying
lasting at least an hour, but some lasted up to four hours. (Tr. 49). Also, he had paranoid
illusions that others were laughing at him. (Tr. 49). Derry was being treated by Viann
Ellsworth, a board-certified clinical nurse specialist, at Park Center with prescriptions and
therapy with a caseworker/social worker. (Tr. 49). Derry reported that the medications were
effective and his only side-effects were occasional twitches, jaw grinding, and longer periods of
sleep. (Tr. 50).
Derry testified that in January of 2013 he ran out of medication and went to Parkview
Behavioral Health facility on an emergency basis for thoughts of harming himself and/or others.
(Tr. 50). Derry also testified to a prescription overdose that occurred in August 2013. (Tr. 50).
After the overdose, Derry was treated as an in-patient at Parkview Hospital for six days and then
released to follow up with out-patient therapy. (Tr. 50). Derry stated that he was nervous when
he was out of the house in a social situation. (Tr. 50). However, the ALJ noted that he was able
to get together with others to play tabletop games for a couple hours at a time and that he kept in
touch with friends he knew from Texas when he lived there. (Tr. 50).
Derry reported to the psychologist who performed the consultative examination in April
of 2013 that he had emotional breakdowns that consisted of uncontrollable crying and that he
had very little energy or motivation, which prevented him from doing much. (Tr. 50). He
characterized his mood as rage and anger. (Tr. 50). Also, Derry indicated that he had happy
moods marked by shopping sprees and excessive spending but that he had occasional thoughts of
seriously harming others. (Tr. 50). The ALJ found that Derry’s medically determinable
impairments reasonably could cause the alleged symptoms, but she found that Derry was
incredible regarding the intensity, persistence, and limiting effects of the symptoms. (Tr. 50).
The ALJ indicated that Derry received various Global Assessment of Functioning (GAF)
scores from both his own mental health providers and from the psychologist who performed the
consultative examination. (Tr. 51). The ALJ noted in February 2013, Derry received a score of
45 and in January 2014 a score of 47. (Tr. 51). However, the ALJ gave little weight to the
scores because they were assigned by a licensed mental health counselor and a clinician. (Tr.
51). Also, the ALJ noted that the scores were disproportionate with the consultative
psychologist’s score of 60 assigned in April 2013 and the scores of 50 from medical doctors in
August 2012. (Tr. 51). The ALJ found that the GAF score of 60 was consistent with the
findings of the State agency. (Tr. 51). The ALJ noted that Derry’s GAF scores of 50 were
technically in the severe range for occupational and/or social functional difficulties, but verged
onto the moderate range being one point below it. (Tr. 51). The ALJ indicated that GAF scores
incorporate issues outside mental impairment like housing, employment, and financial problems.
(Tr. 51). Therefore, the ALJ found that without those factors, Derry’s GAF score of 50 was in
the moderate range. (Tr. 51).
The ALJ assigned great weight to the State agency’s psychological consultants because
their opinions were consistent with Derry’s psychological care and evaluation. (Tr. 51). The
ALJ discounted the allegations made by Derry’s father because substantial reasons existed in the
medical evidence, or lack thereof medical evidence, to discount the limiting effects of Derry’s
problems. (Tr. 51).
At step four, the ALJ found the Derry was unable to perform any past relevant work. (Tr.
51). Considering Derry’s age, education, work experience, and RFC, the ALJ concluded that
there were jobs in the national economy that he could perform, including a laundry worker
(3,000 jobs statewide and 150,000 nationwide), an industrial cleaner (2,000 jobs statewide and
60,000 nationwide), and a dishwasher (3,000 statewide and 200,000 nationwide). (Tr. 52). The
ALJ noted that the VE indicated that the numbers of dishwasher jobs would be reduced by
approximately half when the work would take place in semi-isolation or in a small group. (Tr.
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097
(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the
correct legal standards and supported her decision with substantial evidence.”). Courts have
defined substantial evidence as “such relevant evidence as a reasonable mind might accept to
support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28
L. Ed. 2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,
217, 83 L. Ed. 2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ’s
decision if the ALJ supported her findings with substantial evidence and if there have been no
errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However,
“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”
Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Disability and supplemental insurance benefits are available only to those individuals
who can establish “disability” under the terms of the Social Security Act. The claimant must
show that he is unable “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). The Social Security regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§
404.1520(b), 416.920(b). If he is, the claimant is not disabled and the evaluation process is over.
If he is not, the ALJ next addresses whether the claimant has a severe impairment or combination
of impairments that “significantly limits . . . physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Williams v. Colvin, 757 F.3d 610, 613
(7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the claimant’s
impairments). Third, the ALJ determines whether that severe impairment meets any of the
impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then
the impairment is acknowledged by the Commissioner to be conclusively disabling. However, if
the impairment does not so limit the claimant’s remaining capabilities, the ALJ reviews the
claimant’s “residual functional capacity” and the physical and mental demands of his past work.
If, at this fourth step, the claimant can perform his past relevant work, he will be found not
disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). However, if the claimant shows that his
impairment is so severe that he is unable to engage in his past relevant work, then the burden of
proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job
experience, and functional capacity to work, is capable of performing other work and that such
work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1520(f),
First, Derry has argued that the ALJ failed to incorporate her findings that he had a
moderate degree of limitation in concentration, persistence, or pace into the hypothetical
question posed to the VE. The ALJ’s RFC assessment and the hypothetical posed to the VE
must incorporate all of the claimant’s limitations supported by the medical record. Yurt v.
Colvin, 758 F.3d 850, 857 (7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614,
619 (7th Cir. 2010)); Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ
relies on testimony from a vocational expert, the hypothetical question she poses to the VE must
incorporate all of the claimant’s limitations supported by medical evidence in the record.”). That
includes any deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d
at 857; O’Connor-Spinner, 627 F.3d at 619 (“Among the limitations the VE must consider are
deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th
Cir. 2009) (indicating the hypothetical question “must account for documented limitations of
‘concentration, persistence, or pace’”) (collecting cases). The most effective way to ensure that
the VE is fully apprised of the claimant’s limitations is to include them directly in the
hypothetical. O’Connor-Spinner, 627 F.3d at 619.
However, ALJs do not need to state explicitly “concentration, persistence, or pace” in the
hypothetical for all cases. Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619. Rather, a
court may assume a VE’s familiarity with a claimant’s limitations, despite deficiencies in the
hypothetical, when the VE independently reviewed the medical record or heard testimony
directly addressing those limitations. O’Connor-Spinner, 627 F.3d at 619; Simila v. Astrue, 573
F.3d 503, 521 (7th Cir. 2009). This exception does not apply if the ALJ poses a series of
increasingly restrictive hypotheticals because courts infer that the VE’s attention is focused on
the hypotheticals and not the record. O’Connor-Spinner, 627 F.3d at 619; Young v. Barnhart,
362 F.3d 995, 1003 (7th Cir. 2004). The ALJ posed a series of increasingly restrictive
hypotheticals. (Tr. 86-88). Therefore, this exception does not apply.
An ALJ’s hypothetical may omit “concentration, persistence, or pace” when it is manifest
that the ALJ’s phrasing specifically excluded tasks that someone with the claimant’s limitations
could not perform. O’Connor-Spinner, 627 F.3d at 619. For example, courts have upheld
hypotheticals that restricted a claimant to low-stress work when the limitations were stress or
panic related. See Johansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002) (upholding
a hypothetical formulated in terms of “repetitive, low-stress” work because the description
eliminated positions likely to trigger symptoms of the panic disorder that originated the
claimant’s moderate limitations in concentration, persistence, or pace); Arnold v. Barnhart, 473
F.3d 816, 820, 823 (7th Cir. 2007) (upholding a hypothetical that restricted the claimant to lowstress, low-production work when stress-induced headaches, frustration, and anger caused the
claimant’s difficulties in concentration, persistence, or pace). The ALJ’s question limited Derry
to low stress work, however, his limitations were not stress or panic related.
Courts may uphold a hypothetical that does not mention “concentration, persistence, or
pace” when the underlying conditions were mentioned and the link between the underlying
condition and the concentration difficulties was apparent enough to incorporate those difficulties
by reference. See Simila, 573 F.3d at 521–22 (upholding the hypothetical but indicating the
failure to include the specific limitations was “troubling”). Generally, terms like “simple,
repetitive tasks” alone do not exclude from the VE’s consideration those positions that present
significant problems with concentration, persistence, or pace. Stewart, 561 F.3d at 684–85
(finding hypothetical limited to simple, routine tasks did not account for limitations of
concentration, persistence, or pace); see Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.
2003) (posing hypothetical as individual of borderline intelligence did not account for limitations
of concentration). Derry has argued that the ALJ did not mention his underlying conditions in
the hypothetical, and the Commissioner has not disputed that argument. Therefore, this
exception does not apply.
The ALJ found that Derry had moderate difficulties in concentration, persistence, or
pace. (Tr. 46-47). The ALJ’s hypothetical included the following mental limitations:
The individual is unable to engage in complex or detailed task but can
perform simple routine repetitive tasks consistent with unskilled work and
is able to sustain an [INAUDIBLE] tasks throughout the workday. The
individual is limited to superficial interaction with co-workers, supervisors
and the public with superficial interaction defined as occasional and casual
contact not involving prolonged conversation or discussion of involved
issues. Contact with supervisors still involves necessary instruction. In
addition, the individual is limited to low stress work defined as having only
occasional decision making required and only occasional changes in the
(Tr. 86-87). Based on the hypothetical the VE determined that Derry could not perform his past
relevant work but that he could perform other work that existed in significant numbers in the
national economy. (Tr. 87).
The ALJ included a limitation to a low stress job requiring only occasional decision
making and only occasional changes in the work setting. (Tr. 87). Derry acknowledged that a
hypothetical that restricts a claimant to low stress work is proper when the mental limitations are
stress or panic related. Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir. 2002). However, he
has argued that the ALJ did not indicate in her decision that Derry’s mental limitations were
primarily stress or panic related. Also, Derry has argued that changes in work settings are related
to adaptation, rather than the ability to sustain concentration and persistence.
The Commissioner has argued that the ALJ did not err because she relied on relevant
evidence in the record, Derry’s mental status exam, his daily activities, reactions to his
medications, and medical opinions in finding that Derry had moderate difficulties in
concentration, persistence, or pace. The ALJ noted that during the consultative mental status
exam Derry had well developed arithmetic skills and displayed intact long-term and intermediate
memory. (Tr. 46-47). The ALJ found that when he was compliant with his medications his
mood was stable.
Also, the Commissioner contends that the ALJ relied on the opinions of Ken Lovko,
Ph.D. and Donna Unversaw, Ph.D., State agency psychologists. The ALJ assigned great weight
to their opinions that Derry did not have adaptation limitations and could manage the stresses
involved with semiskilled work. (Tr. 98,121). If a medical expert makes an RFC determination,
the ALJ may reasonably rely on that opinion to formulate a hypothetical posed to a VE.
Johansen v. Barnhart, 314 F.3d at 289; see Calhoun v. Colvin, 2013 WL 3834750, at *10 (N.D.
Ind. 2013) (upholding a hypothetical to a VE when the ALJ did not include a limitation in
concentration, persistence, and pace but relied almost verbatim on a medical expert's RFC).
The Commissioner has indicated that the ALJ used alternative phrasing to address the
complexity of the tasks that Derry could perform and his ability to stick with a given task over a
sustained period of time. The ALJ limited Derry to “simple, routine and repetitive tasks
consistent with unskilled work,” and the additional limitations to “low stress work defined as
only occasional decision-making required and with only occasional changes in the work setting.”
The Commissioner has indicated that even if the ALJ did not identify any specific stress or panic
related problems, in her opinion she reported a basis for the functional limitations by noting that
Derry was limited to semi-isolation from others, low stress tasks, and no production pace work to
give deference to Derry’s depression and paranoid thoughts around others.
The hypothetical the ALJ presented to the VE was not supported by the medical record.
Therefore, the ALJ failed to build an accurate and logical bridge from her evidence to the record.
Steele, 290 F.3d at 941. The appropriateness of a hypothetical question posed to a vocational
expert, “[a]ll that is required is that the hypothetical question be supported by the medical
evidence in the record.” Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987).
The ALJ’s hypothetical fails to account for Derry’s limitations in concentration,
persistence, or pace and only accounts for “simple, routine, competitive tasks,” which the 7th
Circuit has indicated is insufficient. Stewart, 561 F.3d at 684–85. Next, the hypothetical limits
Derry to superficial interaction with coworkers, supervisors, and the public with superficial
interaction defined as occasional and casual contact not involving prolonged conversation or
discussion of involved issues. In addition, Derry was best suited work in semi-isolation from
others or as part of a small group. The circuit court repeatedly has rejected the notion that a
hypothetical confining the claimant to simple, routine tasks and limited interactions with others
adequately captures temperamental deficiencies and limitations in concentration, persistence, and
pace. Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014); See generally Stewart, 561 F.3d at
685. The hypothetical also limits Derry to work with no production rate or work pace.
However, without such a definition, it was impossible for the VE to assess whether a person with
Derry’s limitations could maintain the pace proposed. Varga v. Colvin, 794 F.3d 809, 815 (7th
Finally, the ALJ limits Derry to low stress work related to having only occasional
decision making and only occasional changes in the work setting. First, a hypothetical that
restricts a claimant to low-stress work is proper when the mental limitations are stress-related or
panic-related. Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir. 2002). The record is devoid
of any stress or panic related mental limitations. Next, “few if any work place changes” with
limited “interaction with coworkers or supervisors” deals largely with workplace adaptation,
rather than concentration, pace, or persistence. Varga, 794 at 815. The ALJ should include
Derry’s limitations in concentration, persistence, and pace in the VE hypothetical on remand.
Next, Derry has argued that the ALJ improperly evaluated his GAF scores. The GAF
scale measures a “clinician's judgment of the individual's overall level of functioning.” Am.
Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32–34 (Text Revision,
4th ed. 2000). The established procedures require a mental health professional to assess an
individual's current level of symptom severity and current level of functioning, and adopt the
lower of the two scores as the final score. Am. Psychiatric Ass'n, Diagnostic & Statistical
Manual of Mental Disorders, 32–34 (Text Revision, 4th ed. 2000). A GAF score ranging from
41–50 indicates serious symptoms; scores ranging from 51–60 indicate moderate symptoms; and
scores ranging from 61–70 indicate mild symptoms. Am. Psychiatric Ass'n, Diagnostic &
Statistical Manual of Mental Disorders, 32–34 (Text Revision, 4th ed. 2000). GAF scores are
“useful for planning treatment” and are measures of both severity of symptoms and functional
level. Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32–34
(Text Revision, 4th ed. 2000). “[N]owhere do the Social Security regulations or case law require
an ALJ to determine the extent of an individual's disability based entirely on his GAF score.”
Wilkins v. Barnhart, 69 Fed. Appx. 775, 780 (7th Cir. 2003) (citing Howard v. Comm'r of Soc.
Sec., 276 F.3d 235, 241 (6th Cir. 2002)).
Derry has argued that the ALJ improperly evaluated his GAF scores by assigning more
weight to a particular score. Derry indicated that his bipolar disease was an episodic disease,
therefore, the scores depicted functioning at the time of the rating. The ALJ noted that two of
Derry’s scores were surprisingly low: 45 in February of 2013 and 47 in January of 2014. (Tr.
51). However, the ALJ gave those scores little weight because they were assigned by a licensed
mental health counselor and by a clinician. (Tr. 51). This was proper because to be an
“acceptable medical source,” the health care professional must be a licensed physician or a
licensed or certified psychologist. 20 C.F.R. 416.913(a)(1)-(2). Also, the scores were
inconsistent with the GAF score of 60 assigned by the consultative psychologist in April 2013
and the GAF score of 50 assigned by medical doctors in August 2012. (Tr. 51). It was
permissible for the ALJ to give greater weight to the GAF score that was more consistent with
the remainder of the record. Oneal v. Colvin, 2015 WL 1291891, at *4 (S.D. Ind. 2015).
Derry has argued that the ALJ claimed that GAF scores incorporate issues outside of the
mental impairment like housing, employment, and financial problems was err. However, this
argument “amounts to nothing more than a dislike of the ALJ’s phraseology.” Rice v. Barnhart,
384 F.3d 363, 371 (7th Cir. 2004). Derry indicated that the ALJ chose to discuss the GAF
scores, therefore, an improper evaluation was error. Finally, Derry has argued that the ALJ
noted that he had missed appointments and was out of medications but that she failed to inquire
with Derry or his treating sources as to the reasoning.
A low GAF score alone is insufficient to overturn an ALJ's finding of no disability. See
Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). The ALJ adequately articulated the GAF
scores and explained her evaluation of Derry’s scores. Therefore, the ALJ was able to build an
accurate and logical bridge from the evidence to her conclusion. Steele, 290 F.3d at 941.
Based on the foregoing reasons, the decision of the Commissioner is REMANDED for
further proceedings consistent with this order.
ENTERED this 28th day of February, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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