BRYANT v. ASTRUE

Filing 32

ORDER: The Court REMANDS the case for further proceedings consistent with this opinion (see Order for details). Signed by Magistrate Judge Mark J. Dinsmore on 7/31/2012.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LEONARD J. BRYANT JR,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Defendant.

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) NO. 1:11-cv-00309-MJD-SEB
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Order
Plaintiff Leonard J. Bryant, Jr. (“Bryant” or “Claimant”) requests judicial review of the
final decision of Defendant Michael J. Astrue, Commissioner of the Social Security
Administration (“Commissioner”), denying his applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental Security
Income (“SSI”) under Title XVI of the Act. For the reasons set forth, the Court REMANDS the
case for further proceedings consistent with this opinion.1

I. Background
A.

Procedural History
On June 8, 2007, Bryant filed applications for DIB and SSI, alleging disability beginning

on March 30, 2007. Bryant’s applications were initially denied on August 30, 2007. After
reconsideration, Bryant’s applications were denied again on October 1, 2007. Following this
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The parties consented to the Magistrate Judge conducting all proceedings and ordering the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Any objections to or appeal of
this decision must be made directly to the Court of Appeals in the same manner as an appeal from any
other judgment of a district court. 28 U.S.C. § 636(c)(3).

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second denial, Bryant requested a hearing, which was held before Administrative Law Judge
Robert E. Hanson (“the ALJ”) on September 3, 2009. On February 25, 2010, the ALJ denied
Bryant’s applications. Bryant requested review of the ALJ’s decision by the Council of Appeals.
The Council of Appeals denied review on December 28, 2010, making the ALJ’s determination
the final decision of the Commissioner. On February 28, 2011, Bryant filed this timely appeal
requesting the Court’s review of the ALJ’s denial pursuant to 42 U.S.C. § 405(g).
B.

Factual Background
Bryant has a high school education and was 33 years old at the onset date of his alleged

disability. In the past, he has worked as a plumber, plumber’s digger, spot welder, machine
operator, material handler, and metal assembler. His alleged disability resulted from the
following impairments: degenerative disc disease with a pars defect, hypertension, sleep apnea,
obesity, depression, a pain disorder, a learning disability, and marijuana abuse. Bryant did not
dispute the ALJ’s findings regarding his physical limitations, so this case focuses on his mental
limitations.
Bryant has a long history of consultations, evaluations, and treatment by mental health
professionals. Bryant’s medical records reveal a diagnosis of depression and some treatment of
the condition. [R. 354-55; 358; 361; 365-66.] During Bryant’s ALJ hearing he testified that
depression had been a problem “there for a while, but now, you know I try not to dwell on things
too much.” [R. 41.] Bryant also testified that he had a prescription for Cymbalta, an antidepressant, but did not take it. [R. 48.]
In October 2005, psychologist Dr. Marilyn Nathan performed a psychological evaluation
of Bryant on behalf of Vocational Rehabilitation Services of Muncie. Dr. Nathan found that
Bryant’s verbal IQ was high in the very superior range, despite the adverse effects of test

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anxiety. [R. 219-20.] Dr. Nathan also found that Bryant was “not easily distracted and did not
seem to have any difficulty focusing his attention.” [R. 219.] Dr. Nathan, however, diagnosed
Bryant with a learning disability and noted that “his reading word recognition level is at the 6th
grade, spelling level at the 5th grade and arithmetic level at the 5th grade. His reading
comprehension level is at the high school level or above.” [R. 223.]
In July 2007, Bryant was examined by psychologist Dr. Ceola Berry on behalf of the
Social Security Administration (“SSA”). Bryant reported a history of speed and acid usage,
DUIs, and court ordered substance abuse treatment. [R. 245.] Bryant also reported that he
currently used alcohol, marijuana, and nightly over-the-counter sleeping pills. [Id.] Bryant
denied receiving psychiatric services and admitted to abusing his own prescription medication.
[Id.] Bryant self-reported depression to Dr. Berry. [R. 247.] Dr. Berry found that Bryant’s
“concentration and attentiveness to task completion were adequate” and that he was “cooperative
and easily engaged.” [R. 247.]
In August 2007, Dr. F. Kladder, a state agency psychologist, performed a psychological
review of Bryant and found that his impairments were not severe. [R. 306.] Dr. Kladder
diagnosed Bryant with a pain disorder and also found a substance abuse disorder. [R. 309; 314.]
From his review, Dr. Kladder identified Bryant with a mild limitation in maintaining
concentration, persistence, or pace. [R. 316.] Dr. Kladder’s findings were confirmed by another
non-examining state agency psychologist. [R. 329.]

II. Disability and Standard of Review
A. Social Security Disability Procedure
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

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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). In order to be found disabled, a claimant must
demonstrate that his physical or mental limitations prevent him from doing not only his previous
work, but any other kind of gainful employment which exists in the national economy,
considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five step
sequential analysis. The first step asks whether the claimant is engaged in substantial gainful
activity. 20 C.F.R. §416.920(a)(4)(i)2. If he is engaged in substantial gainful activity then he is
not disabled, despite his medical condition and other factors. The second step determines
whether the claimant has a medically determinable impairment or combination of impairments
that is severe (significantly limits his ability to perform basic work activities) and meets the
durational requirement. 20 C.F.R. 416.920(a)(4)(ii). If his impairment or combination of
impairments is not severe or does not meet the 12 month durational requirement, then he cannot
be disabled. In the third step, the Commissioner determines whether the claimant’s severe
impairment or combination of impairments meet the durational requirement and meet or
medically equal the criteria listed in 20 C.F.R. 404, Subpart P, Appendix 1. 20 C.F.R. §
416.920(a)(4)(iii). If the claimant meets or medically equals the listed criteria and the durational
requirement then he is disabled; if not, the analysis proceeds to the fourth step.
Prior to embarking on steps four and five of the analysis, the ALJ must determine the
claimant’s Residual Functional Capacity (“RFC”). The RFC is the “maximum that a claimant
can still do despite his mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76

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The Code of Federal Regulations contains separate sections relating to DIB and SSI that are
identical in all respects relevant to this case. For the sake of simplicity, the Court cites only to the
SSI sections in discussing the standard for determining whether a claimant is disabled.
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(7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). In step four the ALJ determines
if the claimant can perform his past relevant work. If he can perform his past relevant work then
he is not disabled. 20 C.F.R. 416.920(a)(4)(iv). At step five, the burden of proof shifts to the SSA
to demonstrate that there are other jobs available to someone with the claimant’s limitations, age,
education, and work experience. Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir. 2003). In the
fifth and final step, the ALJ determines if the claimant can perform any other work in the
national economy. 20 C.F.R. 416.920(a)(4)(v). If he can perform any other work, he is not
disabled; if he cannot he is disabled.
B. Judicial Standard of Review
If the Commissioner’s findings are supported by substantial evidence then they are
conclusive. Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000); 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Craft, 539 F.3d at 673; see also Flener v. Barnhart, 361 F.3d 442, 447 (7th Cir.
2004). The Court deferentially reviews the ALJ’s decision and must uphold the ALJ’s findings
of fact if they are supported by substantial evidence and no error of law occurred. Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”
Carlson v. Shalala, 999 F.2d 180,181 (7th Cir. 1993). However, the ALJ’s decision must
consider all relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The ALJ is
required to articulate only a minimal, but legitimate justification for his acceptance or rejection
of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 1994).
Furthermore, the Court may not “reweigh the evidence or substitute our judgment for that of the

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ALJ.” Overman v. Astrue, 546F.3d 456, 462 (7th Cir. 2008); Schmidt v. Apfel, 201 F.3d, 970,
972 (7th Cir. 2000).
When there is an error of law “reversal is, of course, warranted irrespective of the volume
of evidence supporting the factual findings.” Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.
1980). Additionally, the court cannot uphold an ALJ’s decision if the decision “fails to mention
highly pertinent evidence, … or … fails to build a logical bridge between the facts of the case
and the outcome.” Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).

III. The ALJ’s Decision
In the first step, the ALJ found that Bryant was not engaged in substantial gainful
activity. [R. 16.] At the second step, the ALJ found that Bryant had the following severe
impairments: “degenerative disc disease, sleep apnea, obesity, depression, a pain disorder, a
learning disability, and marijuana abuse.” [Id.] In the third step the ALJ found that Bryant’s
impairments or combination of impairments did not meet or medically equal the listed
impairments of 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id. at 16-17.] The ALJ also found
that Bryant had moderate limitations in concentration, persistence, or pace. The ALJ determined
that Bryant had the RFC to perform sedentary work additionally restricted to simple and
repetitive work. [Id. at 19-22.]
Given Bryant’s RFC and the standing, walking, and/or lifting that his previous jobs
required, the ALJ found that “the claimant is unable to perform his past relevant work” in step
four. [Id. At 22.] In the fifth and final step, the ALJ found that “there are jobs that exist in
significant numbers in the national economy that the claimant can perform.” [Id.] Specifically,
the ALJ found that Bryant could take a job as an information clerk, assembler, machine operator,
or hand packager and there were at least 500 of each of these positions in the state of Indiana.

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[Id.] This list of alternative jobs that Bryant could perform, despite his limitations, satisfied the
burden of proof upon the SSA in step five. Therefore, the ALJ concluded that Bryant is not
disabled under the Act.

IV. Discussion
To arrive at decisions in steps four and five, the ALJ enlisted the expertise of a
Vocational Expert (“VE”). Generally, VEs testify at the hearing, but in the instant case the VE
responded to interrogatories that included two hypothetical questions. Bryant contends that the
hypotheticals posed by the ALJ to the VE failed to incorporate his moderate degree of limitation
in concentration, persistence, or pace despite limiting Bryant to sedentary, simple and repetitive
work. In turn, Bryant argues that the outcome of the five-step process was flawed. The
Commissioner argues that the ALJ’s hypothetical was not required to explicitly include Bryant’s
limitation in concentration, persistence, or pace.
To fully understand Bryant’s argument, it is useful to briefly explain Bryant’s limitations
of concentration, persistence, or pace and the ALJ’s RFC. First, the Court will examine Bryant’s
limitations in concentration, persistence, or pace. Next, the Court will discuss the RFC because it
is one of the factors feeding into the ALJ’s hypothetical. Finally, the Court will discuss the ALJ’s
hypothetical and its treatment of the claimant’s moderate limitation in concentration, persistence
or pace, the issue at hand.
A. Concentration, Persistence, or Pace
To determine the severity of a claimant’s mental impairments in steps two and three, the
ALJ determines whether the claimant has marked3 restrictions in two or more of the following

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The ALJ evaluates these limitations using the following scale of increasing severity: none, mild,
moderate, marked, or extreme. Craft, 539 F.3d at 674-75; 20 C.F.R. § 404.1520a(c)(4). The ALJ
also found that Bryant had no episodes of decompensation.
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categories: daily living; social functioning; and/or concentration, persistence, or pace. [R. 17.] The ALJ
found that Bryant did not have marked restrictions in any of the categories, so his impairments
did not meet or medically equal the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. [R. 19.] The ALJ did find, however, that Bryant has moderate difficulties with
concentration persistence, or pace. [R. 18.]
B. Residual Functional Capacity
The ALJ determined that Bryant had the RFC to perform sedentary work with the further
limitation that he is restricted to simple and repetitive work. [R. 19.] The ALJ’s decision
explained that the limitation to sedentary work is designed to accommodate the claimant’s
degenerative disc disease. [Id.] The decision also explained the limitation of simple and
repetitive work as a mental restriction “designed to accommodate the claimant’s depression,
marijuana abuse, and learning disability, as he is only at a fifth grade level in reading and math.”
[R. 19-20.] Although the ALJ’s decision loosely links the limitation of “simple and repetitive
work” to the claimant’s depression, this link was not present in the hypothetical posed to the VE,
which the Court discusses below.
C. The ALJ’s Hypothetical
As a general rule, when the ALJ poses hypothetical questions to the VE, the ALJ must
orient the VE to the totality of the claimant’s limitations. O'Connor-Spinner v. Astrue, 627 F.3d
614, 619 (7th Cir. 2010). The totality of a claimant’s limitations include limitations in
concentration, persistence, or pace. Id. The Seventh Circuit advised that “the most effective way
to ensure that the VE is apprised fully of the claimant's limitations is to include all of them
directly in the hypothetical.” Id. at 619. Although the general rule of O’Connor-Spinner strongly
favors including the phrase “concentration, persistence, or pace” in the hypothetical posed to the

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VE, the Seventh Circuit has not required usage of those exact words if the hypothetical falls into
one of three exceptions. Id. at 619-620.
Here, the ALJ prefaced his questions to the VE with the following hypothetical that
incorporated the ALJ’s RFC:
Assume that the hypothetical individual has a combination of exertional and
nonexertional limitations arising out of degenerative disc disease with a pars
defect, hypertension, sleep apnea, obesity, depression, a pain disorder, a learning
disability, and marijuana abuse. As a result of these conditions and the symptoms
they produce, the hypothetical individual is limited to simple, repetitive tasks with
only fifth grade reading and math. The hypothetical person otherwise can perform
sedentary work (sitting for six hours in an eight-hour day, lifting ten pounds
occasionally and lesser weights frequently).
[R. 205; 211.] The claimant zeroes in on this hypothetical4 and argues that it did not apprise the
VE of the claimant’s limitations in concentration, persistence, or pace due to his mental
conditions. According to the claimant, simply stating that Bryant is limited to simple, repetitive
tasks does not adequately orient the VE to his moderate difficulties in concentration, persistence,
or pace.
In his decision, the ALJ stated, “I find no functional consequence of the claimant’s
limitation in this area [concentration, persistence, or pace] beyond an inability to sustain detailed
or complex work processes, and in the case at hand, a restriction to simple repetitive tasks
encompasses that restriction.” Id. The ALJ went on to state that he did not find Bryant’s
moderate limitations a separate functional limitation, “or one that is different in degree, from
restriction to simple, repetitive tasks that I have assessed … at step four.” The ALJ’s statement,
however, flies in the face of the decision in O’Connor-Spinner, which stated that “[i]n most
cases… employing terms like ‘simple, repetitive tasks’ will not necessarily exclude from the

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The ALJ posed a second hypothetical focused on the claimant’s physical limitations, which are
not disputed in this appeal.
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VE’s consideration those positions that present significant problems of concentration, persistence
and pace.” 627 F.2d at 620 (citations omitted). Thus, the ALJ’s hypothetical restriction of
“simple and repetitive work” did not encompass the claimant’s moderate limitations in
concentration, persistence, or pace.
The Commissioner argues that, while the words “concentration, persistence, or pace” are
not included in the hypothetical, this omission is not fatal, because the hypothetical falls into two
of the three exceptions. O’Connor-Spinner, 627 F.3d 619-620. The first exception5 applies when
the VE independently learns of the claimant’s limitations through hearing testimony or reviewing
the claimant’s medical records prior to the ALJ’s hypothetical questions. In such cases,
presumably the VE’s answer accounts for his or her knowledge of the claimant’s 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 in cases where the ALJ poses “a series of increasingly restrictive
hypotheticals to the VE, because in such cases we infer that the VE's attention is focused on the
hypotheticals and not on the record.” O’Connor-Spinner, 627 F.3d at 619. Here, the
Commissioner does not argue that the first exception should apply, presumably because the ALJ
posed increasingly restrictive hypotheticals to the VE.
The second exception allows the ALJ’s hypothetical to omit the terms concentration
persistence or pace when “it was manifest that the ALJ's alternative phrasing specifically
excluded those tasks that someone with the claimant's limitations would be unable to perform.”
Id. at 619. The Court allows this exception to the general requirement of including concentration,
persistence, or pace limitations in a hypothetical “most often … when a claimant’s limitations
were stress- or panic-related and the hypothetical restricted the claimant to low-stress work.” Id.
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Exceptions are discussed in the order they appear in the O’Connor-Spinner opinion. 627 F.3d
619-20.
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As the claimant correctly points out, there are no such stress- or panic-related limitations at play
in this case, nor did the ALJ restrict the hypothetical to low-stress work. [Dkt. 21 at 2-3.]
In his discussion of this exception, the Commissioner argues that the ALJ’s restriction to
simple and repetitive tasks was sufficient to account for Bryant’s limitations due to “manifest
evidence in the record” supporting the ALJ’s finding. [Dkt. 26 at 5.] In fact, as the ALJ points
out, the record is replete with examples of Bryant’s daily activities exceeding the limitations one
would expect considering his alleged symptoms. [R. 22.] However, as discussed in the previous
section, O’Connor-Spinner challenges the legal sufficiency of replacing limitations in
concentration, persistence, or pace with a restriction to “simple, repetitive tasks” because this
inaccurate substitution could allow the VE to recommend jobs precluded by the claimant’s
limitations. O’Connor-Spinner, 627 F.3d at 620.
Additionally, the Commissioner misinterprets this exception. This exception applies
when the ALJ’s alternative phrasing in the hypothetical manifests the claimant’s limitations, not
when claimant’s limitations are manifested in the record. Both the general rule requiring the
expressed inclusion of the words “concentration, persistence, and pace” and the exceptions to the
rule exist to ensure that the VE is oriented to the totality of the claimant’s limitations. Even if the
claimant’s limitations are manifest in the record, most VEs will not review the record and will
not be oriented to the totality of the claimant’s limitations. Moreover, if the VE reviews the
record then the applicable exception is the first exception, not the second. Accordingly, the
second exception does not apply.
The third exception allows the ALJ’s hypothetical to substitute a claimant’s underlying
conditions for his limitations when there is an “apparent enough” link between them. O’ConnorSpinner, 627 F.3d at 620. This exception arose in Simila, when the Seventh Circuit held that a

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hypothetical mentioning pain and a somatoform disorder incorporated the claimant’s
concentration, persistence, or pace limitations. Simila v. Astrue, 573 F.3d 503, 522 (7th Cir.
2009). In that particular case, the ALJ’s hypothetical stated “…because of the allegations of pain,
I would also further limit [the hypothetical individual’s work] to unskilled.” Id. at 521. Later, in
O’Connor-Spinner, the Seventh Circuit stated that the link in Simila between one specific
condition—pain—and a limitation—unskilled work—was “apparent enough.” O’ConnorSpinner, 627 F.3d at 620. It is important to recognize that the ALJ’s hypothetical in Simila used
one particular underlying condition to justify one of the restrictions in her hypothetical.
The Seventh Circuit, however, conspicuously disfavors this exception, calling it
“consistent with the general rule, albeit just barely so.” Id. at 620. Additionally, although the
Circuit allows this exception, it called the hypothetical in Simila “troubling” for its failure to
specifically include limitations on concentration, persistence, or pace. Id. The Commissioner
argues that this exception applies, dispensing with the requirement to expressly mention Bryant’s
limitation in concentration, persistence, or pace. [Dkt. 26 at 4.] The Commissioner claims that
O’Connor-Spinner reaffirms Simila and the Commissioner does not mention the Seventh
Circuit’s skepticism regarding the third exception. [Dkt. 26 at 4.]
In the case at bar, the ALJ’s hypothetical began with a laundry list of Bryant’s physical
and mental conditions. Unlike the hypothetical in Simila, the hypothetical here failed to connect
any particular underlying condition with an associated limitation. This is a significant distinction.
The link in Simila was more direct and explicit than the link in the present case, yet the
hypothetical in Simila scarcely passed muster.
Without a more direct link, the ALJ’s hypothetical effectively required the VE to play the
role of a medical professional and diagnose Bryant’s functional limitations based on his physical

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and mental conditions. The Court recognizes that the VE is not a medical professional, nor
should she be required to act as one. Despite the ALJ’s own finding that Bryant had a moderate
limitation in concentration, persistence, or pace, he failed to mention this important limitation,
nor did he single out any of Bryant’s conditions and link it with the limitation. Despite the
Court’s deferential standard of review, the ALJ’s hypothetical failed to make an “apparent
enough,” logical bridge between any of Bryant’s underlying conditions and his moderate
limitation in concentration, persistence, or pace. Therefore, the third exception does not apply.
In sum, the O’Connor-Spinner ruling requires the ALJ to orient the VE to the totality of a
claimant’s limitations.6 627 F.3d at 619. The Seventh Circuit provided further guidance by
advising that “the most effective way to ensure that the VE is apprised fully of the claimant's
limitations is to include all of them directly in the hypothetical.” Id. Although the Seventh
Circuit acknowledged that “there may be instances where a lapse on the part of the ALJ in
framing the hypothetical will not result in remand,” they continued on, saying, “for most cases
the ALJ should refer expressly to limitations on concentration, persistence, or pace in the
hypothetical…” Id. at 620-21. Two important points flow from this ruling: First, the presumption
is that the ALJ will expressly include limitations in concentration, persistence, or pace in the
hypothetical. To do otherwise is a “lapse” on behalf of the ALJ, however it is not necessarily
incurable. Secondly, the majority of cases should expressly refer to limitations in the
hypotheticals rather than using an exception to survive review. The exceptions are narrowly
drawn, used in the minority of cases, and the Simila exception is especially disfavored in the eyes
of the Seventh Circuit.
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It is important to note the difference between the SSA’s usage of the terms “limitations,” and
“conditions.” The SSA uses “limitations” to refer to categories of functional deficiencies, such as
a decreased ability to maintain concentration, persistence, or pace. Physical and mental
“conditions,” such as depression and pain, can cause “limitations.”
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Despite the ALJ incorporating his RFC that restricted Bryant to “simple and repetitive
work,” the ALJ’s hypothetical, nonetheless, failed to include the claimant’s moderate limitation
in concentration, persistence, or pace. None of the three exceptions allowing such an omission
applies to this case. As a result, the VE was not oriented to the totality of the claimant’s
limitations. Because the ALJ utilized the VE’s testimony to arrive at his decisions in steps four
and five, those determinations were made without substantial evidence. Therefore, the five step
process did not satisfactorily conclude. Upon remand the ALJ should pose a rephrased
hypothetical(s). In so finding, the Court makes no determination about the validity of Bryant’s
alleged disability or the credibility of his claims because the five step analysis did not conclude
properly.

V. Conclusion
For the above stated reasons, the Court REMANDS the case for further proceedings
consistent with this opinion.

Dated:

07/31/2012

Distribution List: all counsel registered with CM/ECF.

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Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana