DELONG v. COLVIN

Filing 31

ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff Timothy DeLong applied for disability insurance benefits from the Social Security Administration ("SSA") on February 11, 2010, alleging an onset date of June 6, 2008. [Filing N o. 12 -4 at 7.] His application was denied initially on April 20, 2010, and upon reconsideration on July 28, 2010. [Filing No. 12 -4 at 7.] Administrative Law Judge ("ALJ") Angela Miranda held a video hearing on August 23, 2011, and is sued a decision on November 29, 2011, concluding that Mr. DeLong was not entitled to receive benefits. [Filing No. 12 -4 at 7-18.] On October 18, 2012, the Appeals Council vacated and remanded the ALJ's decision after it received additional evidence. [Filing No. 12 -4 at 22-23.] On September 24, 2013, the ALJ held another video hearing, [Filing No. 12 -2 at 52], and issued a decision on August 26, 2014, concluding once again that Mr. DeLong was not entitled to receive benefits. [Fi ling No. 12 -2 at 32-46.] The Appeals Council denied review on March 14, 2016, [Filing No. 12 -2 at 3], rendering the ALJ's decision the final decision of the Commissioner of the SSA (the "Commissioner"), [Filing No. 12 -2 at 32- 46]. Mr. DeLong then filed this civil action under 42 U.S.C. § 405(g), requesting that the Court review the Commissioner's decision. [Filing No. 1 .] For the reasons detailed herein, the Court VACATES the ALJ's decision denying Mr. DeLong benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. § 405(g)(sentence 4) as detailed above. Final Judgment will issue accordingly. (See Order). Signed by Judge Jane Magnus-Stinson on 7/31/2017.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TIMOTHY A. DELONG,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)

No. 1:16-cv-01210-JMS-DKL

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Timothy DeLong applied for disability insurance benefits from the Social Security
Administration (“SSA”) on February 11, 2010, alleging an onset date of June 6, 2008. [Filing No.
12-4 at 7.] His application was denied initially on April 20, 2010, and upon reconsideration on
July 28, 2010. [Filing No. 12-4 at 7.] Administrative Law Judge (“ALJ”) Angela Miranda held a
video hearing on August 23, 2011, and issued a decision on November 29, 2011, concluding that
Mr. DeLong was not entitled to receive benefits. [Filing No. 12-4 at 7-18.] On October 18, 2012,
the Appeals Council vacated and remanded the ALJ’s decision after it received additional
evidence. [Filing No. 12-4 at 22-23.] On September 24, 2013, the ALJ held another video hearing,
[Filing No. 12-2 at 52], and issued a decision on August 26, 2014, concluding once again that Mr.
DeLong was not entitled to receive benefits. [Filing No. 12-2 at 32-46.] The Appeals Council
denied review on March 14, 2016, [Filing No. 12-2 at 3], rendering the ALJ’s decision the final
decision of the Commissioner of the SSA (the “Commissioner”), [Filing No. 12-2 at 32-46]. Mr.
DeLong then filed this civil action under 42 U.S.C. § 405(g), requesting that the Court review the
Commissioner’s decision. [Filing No. 1.]

1

I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits and
Supplemental Security Income to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212,
214 (2002). “The statutory definition of ‘disability’ has two parts. First, it requires a certain kind
of inability, namely, an inability to engage in any substantial gainful activity. Second, it requires
an impairment, namely, a physical or mental impairment, which provides reason for the inability.
The statute adds that the impairment must be one that has lasted or can be expected to last . . . not
less than 12 months.” Id. at 217.
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the
ALJ “is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d
668, 678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong,” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets or equals one
of the impairments listed by the [Commissioner]; (4) whether the claimant can
perform [his] past work; and (5) whether the claimant is capable of performing
work in the national economy.

2

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, [he] will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then [he] must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable
impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ
uses the RFC at Step Four to determine whether the claimant can perform his own past relevant
work and if not, at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 416.920(e), (g). The burden of proof is on the claimant for Steps One through Four; only
at Step Five does the burden shift to the Commissioner. Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate only where all factual issues have been resolved and the record
can yield but one supportable conclusion.” Id. (citation omitted).
II.
BACKGROUND
Mr. DeLong was born in 1964, [Filing No. 12-2 at 65], has completed some college, [Filing
No. 12-2 at 68], and has previous work experience as a warehouse worker, [Filing No. 12-2 at

3

44]. 1 Using the five-step sequential evaluation set forth by the SSA in 20 C.F.R. § 404.1520(a)(4),
the ALJ issued an opinion on August 26, 2014, determining that Mr. DeLong was not entitled to
receive disability benefits. [Filing No. 12-2 at 32-46.] The ALJ found as follows:
•

At Step One of the analysis, the ALJ found that Mr. DeLong had not engaged in
substantial gainful activity 2 since the alleged onset date. [Filing No. 12-2 at 35.]

•

At Step Two of the analysis, the ALJ found that Mr. DeLong suffered from the
following severe impairments: “(1) back impairments variously assessed as
dextroscoliosis, chronic compression deformities of T10 and T11, levoscoliosis, disc
degeneration of T12-L1 and L1-L2, and scoliosis; (2) cervical spine dysfunction
described as mild cervical spondylosis; (3) mild developmental dysplasia of the right
hip and sciatica; and (4) mental impairments assessed as anxiety, depression, and
memory loss likely secondary to depression and anxiety.” [Filing No. 12-2 at 34.]

•

At Step Three of the analysis, the ALJ found that Mr. DeLong did not have an
impairment or combination of impairments that met or medically equaled the severity
of one of the listed impairments. [Filing No. 12-2 at 36.]

•

After Step Three but before Step Four, the ALJ found that Mr. DeLong has the RFC to
perform light work with the following postural and mental limitations: “[Mr. DeLong]
has the capacity to occasionally lift and carry 20 pounds and to frequently lift and carry

1

Mr. DeLong provided a detailed description of his medical history, [Filing No. 21], and the
Commissioner did not dispute it, [Filing No. 29]. Because that discussion implicates sensitive and
otherwise confidential medical information concerning Mr. DeLong, the Court will simply
incorporate those facts by reference herein and only detail specific facts as necessary to address
the parties’ arguments.

2

Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a); 20 C.F.R. § 416.972(a).
4

10 pounds. [He] has the capacity to frequently push and pull up to the weight capacity
for lifting and carrying. [He] has the capacity to stand and walk 6-8 hours in an 8-hour
workday. . . . [Mr. DeLong] has the capacity to occasionally stoop, kneel, crouch,
crawl, and climb stairs and ramps. The evidence does not establish that [he] has any
limitations in the ability to balance . . . [and] there are no clinical signs or diagnostic
results establishing any medically determined impairment of the hands or upper
extremities. . . . [Mr. DeLong] has no limitations in manipulative abilities. . . .
[M]entally [Mr. DeLong] has the capacity to understand, remember, and carry out
simple, routine tasks. In doing so, [Mr. DeLong] has the capability to use common
sense understanding to carry out instructions, to deal with several concrete variables in
standardized situations, and to sustain this mental ability consistent with the normal
demands of a workday including regular breaks and meal periods. [Mr. DeLong] has
the capacity to appropriately interact with supervisors, coworkers, and the generalpublic. [He] has the capacity to identify and avoid normal work place hazards and to
adapt to routine changes in the work place.” [Filing No. 12-2 at 38-39 (emphasis
omitted).]
•

At Step Four of the analysis, the ALJ found that Mr. DeLong is unable to perform any
past relevant work. [Filing No. 12-2 at 44.]

•

At Step Five of the analysis, the ALJ found that considering Mr. DeLong’s age,
education, work experience, and RFC, there are jobs in the national economy that Mr.
DeLong can perform, such as a fast food worker, cashier, and sales attendant. [Filing
No. 12-2 at 45.]

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Mr. DeLong asked the Appeals Council to review the ALJ’s decision, but that request was
denied on March 14, 2016, [Filing No. 12-2 at 3], rendering the ALJ’s decision the
Commissioner’s final decision, [Filing No. 12-2 at 32-46]. Mr. DeLong then filed this civil action
under 42 U.S.C. § 405(g), requesting that the Court review the Commissioner’s decision. [Filing
No. 1.]
III.
DISCUSSION
Mr. DeLong raises several issues on appeal, and the Court will address them as follows:
(1) whether the ALJ improperly evaluated the opinions of the psychological consultative examiner
and treating physician, [Filing No. 21 at 24-25]; (2) whether the ALJ failed to adequately instruct
the vocational expert regarding Mr. DeLong’s moderate limitations of concentration, persistence,
and pace, [Filing No. 21 at 28]; (3) whether the ALJ erred in her credibility analysis, [Filing No.
21 at 30]; (4) whether the ALJ improperly dismissed the testimony of Mr. DeLong’s friend, [Filing
No. 21 at 27]; (5) whether the ALJ erred when she found that Mr. DeLong’s amnestic disorder
was not a severe impairment, [Filing No. 21 at 18]; and (6) whether the Appeals Counsel erred
when it failed to “exhibit or associate” with Mr. DeLong’s record the post-hearing evidence that
he submitted, [Filing No. 21 at 15].
A. Opinion Evidence
1. Consultative Examiner’s Opinion
Mr. DeLong argues that the ALJ erroneously weighed the opinion of psychological
consultative examiner Dr. Robert Blake with respect to Mr. DeLong’s “severe processing and
memory” problems. [Filing No. 21 at 23.] Mr. DeLong argues that the ALJ’s reason (dismissing
Dr. Blake’s opinion because the testing was compromised by Mr. DeLong’s lack of understanding
the directions) is flawed because he claims that such evidence is linked to “severe processing and
6

memory problems.” [Filing No. 21 at 24.] He also claims that the ALJ’s other explanations that
Mr. DeLong was able to care for his son and engage in amateur radio broadcasting are not good
reasons to reject Dr. Blake’s opinion. [Filing No. 21 at 24-25.]
In response, the Commissioner argues that the ALJ considered all the opinions, adequately
assigned great weight to the state agency psychologist’s opinion, and properly noted Mr. DeLong’s
propensity to exaggerate in both of Mr. DeLong’s mental and physical examinations. [Filing No.
29 at 7.] The Commissioner claims that the ALJ “reasonably considered that Dr. Blake’s
conclusions were not supported by his own examination findings.” [Filing No. 29 at 8.] The
Commissioner summarizes the ALJ’s discussion of Dr. Blake’s assessment, notes that the ALJ
provided adequate reasons for rejecting his opinion, and argues that courts do not reweigh evidence
on appeal. [Filing No. 29 at 8-9.]
In reply, Mr. DeLong argues that the “Commissioner’s characterization of what Dr. Blake
actually stated is simply not true.” [Filing No. 30 at 5.] He reiterates that Dr. Blake noted that Mr.
DeLong’s difficulty with directions “was generally indicative of the level of his problem” and that
Dr. Blake did not find Mr. DeLong’s memory invalid. [Filing No. 30 at 5.] Mr. DeLong further
claims that “the ALJ overstated his daily activities in finding them inconsistent with Dr. Blake’s
opinion,” and that she failed to build a logical and accurate bridge when she mischaracterized Dr.
Blake’s opinion and overstated Mr. DeLong’s care of his son and participation in hobbies. [Filing
No. 30 at 6-7.]

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Generally, an ALJ will give more weight to an opinion of a source who has examined the
claimant than to the opinion of a source who has not examined the claimant. 3 20 C.F.R. §
404.1527(c)(1). “An ALJ can reject an examining physician’s opinion only for reasons supported
by substantial evidence in the record. . . .” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003);
Moore v. Barnhart, 278 F.3d 920, 924 (9th Cir. 2002).
The ALJ discussed Dr. Blake’s findings with regard to Mr. DeLong’s mental impairments.
[Filing No. 12-2 at 41.] The ALJ then explained that she gave little weight to Dr. Blake’s opinion
with respect to his assessment that Mr. DeLong showed “severe processing and memory
problems,” because Mr. DeLong’s “testing appeared to be compromised by his lack of
understanding of the test directions,” and his hobby of participating in amateur radio broadcasting
and activity caring for a disabled child were at odds with his opinion. [Filing No. 12-2 at 42.]
These are not adequate reasons to reject Dr. Blake’s opinion. First, Dr. Blake noted in his opinion
that Mr. DeLong’s difficulty following instructions was likely attributed to his difficulty with his
memory. Specifically, Dr. Blake pointed out that Mr. DeLong was consistent with his wrong
answers demonstrating that within his own logic, he may have performed higher on the sub-test,
and that “the fact that he could not understand the instructions after multiple presentations suggests
that his extremely low score on this item is generally indicative of the level of his problem. . . .”
[Filing No. 12-9 at 78.] Moreover, the ALJ does not explain how Mr. DeLong’s ability to care for
his son and engage in amateur radio broadcasting refutes that he has issues with his processing or

3

The SSA adopted new rules for agency review of disability claims for applications filed on or
after March 27, 2017. 82 Fed. Reg. 5844-01. The new regulations indicate that SSA “adjudicators
will [now] articulate how they consider medical opinions from all medical sources, regardless of
whether or not the medical source is an [acceptable medical source]. . . .” 82 Fed. Reg. 5844-01.
Because Mr. DeLong applied for disability benefits before March 27, 2017, these changes will not
apply to the review of his claim.
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memory. Another troubling aspect of the ALJ’s assessment is that she gave significant weight to
the state agency psychological consultant’s opinion and only explained that the “consultative
examinations revealed a higher level of functioning than [Mr. DeLong] alleged and the 2013
examinations appeared to have been compromised due to issues with patient effort.” [Filing No.
12-2 at 41.] As noted above, typically, a consultative examiner’s opinion receives greater weight
because they examine the claimant, whereas a state agency physician merely reviews the medical
records. While the Court does not indicate that the ALJ should have given greater weight to Dr.
Blake’s opinion, it finds that the ALJ should have given adequate reasons for discounting the
opinion. Accordingly, this issue requires remand.
2. Treating Physician’s Opinion
Mr. DeLong argues that the ALJ failed to give “good reasons” for not affording controlling
weight to the opinion of treating physician Dr. Seth Banks. [Filing No. 21 at 25.] He first argues
that the ALJ’s explanation that Dr. Banks used “vague” words like “moderate” and “severe” to
describe Mr. DeLong’s mental impairments is not an adequate reason to reject the opinion, given
that Dr. Banks essentially adopted Dr. Blake’s opinion. [Filing No. 21 at 26.] Mr. DeLong further
points out that the ALJ’s explanation that Dr. Banks’ request for a functional capacity examination
demonstrates he was unsure of Mr. DeLong’s precise loss of functioning is not an adequate reason
to reject Dr. Banks’ opinion. [Filing No. 21 at 26.] Lastly, he argues that the ALJ’s reason to
reject Dr. Banks’ opinion because he mistook Dr. Blake’s examination to be a more comprehensive
neuropsychological examination is also not a “good reason.” [Filing No. 21 at 26-27.]
In response, the Commissioner claims that the ALJ gave “good reasons” to reject Dr.
Banks’ opinion. [Filing No. 29 at 9.] In addition, the Commissioner claims that the ALJ was not
required to give Dr. Banks’ opinion controlling weight because he was a general physician, and

9

that Dr. Banks only recommended conservative treatment to address Mr. DeLong’s symptoms.
[Filing No. 29 at 9-10.]
In reply, Mr. DeLong reiterates that the ALJ’s reasons to reject Dr. Banks’ opinion have
“absolutely nothing to do with the mental limitations assessed by Dr. Banks” and are not
considered good reasons. [Filing No. 30 at 6.]
Under 20 C.F.R. § 404.1527(c)(1), an ALJ should “give more weight to the opinion of a
source who has examined [the claimant] than to the opinion of a source who has not examined [the
claimant]” because of his greater familiarity with the claimant’s conditions and circumstances.
Minnick v. Colvin, 775 F.3d 929, 937-38 (7th Cir. 2015). Section 404.1527(c)(2) provides that
“[i]f [the ALJ] find[s] that a treating source’s opinion on the issue(s) of the nature and severity of
[the claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s]
case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2); Minnick, 775
F.3d at 938. If the ALJ opts not to give a treating physician’s opinion controlling weight, she must
apply the factors under 20 C.F.R. § 404.1527(c)(2)-(6).
As noted by Mr. DeLong, the ALJ gave three reasons for giving “very limited weight” to
Dr. Banks’ opinion. [Filing No. 12-2 at 42.] She first indicated that Dr. Banks does not provide a
detailed or quantifiable assessment, and that he used vague terms like “moderate” and “severe.”
[Filing No. 12-2 at 42.] Next, she explains that the fact that Dr. Banks requested a functional
capacity examination demonstrates that he was unsure of Mr. DeLong’s precise loss of
functioning. [Filing No. 12-2 at 42.] Lastly, the ALJ points out that Dr. Banks erroneously found
that “the first consultative psychological examination was a more detailed ‘neuropsychological’
examination rather than a general mental statute examination.” [Filing No. 12-2 at 42.] The Court

10

agrees with Mr. DeLong that the ALJ failed to give adequate reasons for giving little weight to Dr.
Banks’ opinion. As noted above, the ALJ must give controlling weight to the treating physician’s
opinion if it is well-supported by medically acceptable evidence and not inconsistent with the
record, and the ALJ’s explanation rejecting Dr. Blake’s opinion does not explain whether or to
what extent Dr. Banks’ opinion is inconsistent with or not supported by the record. Instead, the
ALJ makes various assumptions about Dr. Banks’ findings. For instance, the ALJ’s reason to
reject Dr. Banks’ opinion because he used vague terms like “moderate” and “severe” to describe
Mr. DeLong’s impairments is unavailing, given that such terminology is often used by physicians
in Social Security assessment forms to describe a claimant’s impairments. Moreover, the ALJ’s
other reason to reject Dr. Banks’ opinion – because he requested a functional capacity examination
– is also illogical since the ALJ also noted that Dr. Banks was a general practitioner and is therefore
not so qualified to conduct this type of examination. The Court does not conclude that Dr. Banks’
opinion should be given controlling weight. But if the ALJ is going to afford it lesser weight, the
ALJ’s assessment must be done in accordance with the Social Security regulations. The Court
therefore remands this matter based on this issue.
B. Concentration, Persistence, and Pace
Mr. DeLong argues that the ALJ failed to take into account “her own findings of moderate
limitations of concentration, persistence, and pace in her assigned [RFC] and her Step Five
hypothetical questions to the vocational expert.” [Filing No. 21 at 28.] He claims that the ALJ
“apprised the vocational expert that [Mr. DeLong] did not have limitations in these areas at all.”
[Filing No. 21 at 29.] He further claims that this omission “resulted in uninformed testimony and
Step Five findings not supported by substantial evidence.” [Filing No. 21 at 29.]

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In response, the Commissioner argues that the ALJ reasonably relied upon state agency
psychologist Dr. Kenneth Lovko’s opinion, “who translated [Mr. DeLong’s] moderate difficulties
in maintaining concentration, persistence or pace into a mental [RFC] opinion.” [Filing No. 29 at
11.] The Commissioner argues that Mr. DeLong “makes a series of arguments as to why Dr.
Lovko’s opinion does not adequately account for [Mr. DeLong’s] moderate limitations in
concentration, persistence and pace.” [Filing No. 29 at 12.] He further claims that Mr. DeLong
does not explain “what additional limitations he believes he require[d]” in the hypotheticals to the
vocational expert, and that Mr. DeLong’s attorney had the opportunity to question the vocational
expert during the hearing “if he believed the ALJ’s hypothetical question was inaccurate.” [Filing
No. 29 at 12.]
In reply, Mr. DeLong claims that the Commissioner mischaracterizes his argument and
reiterates that the RFC “assessed by the ALJ does not reflect the moderate limitations of
concentration, persistence and pace that the state agency psychologist opined and that [the] ALJ []
adopted.” [Filing No. 30 at 1-2.] He further claims that “simple, routine tasks” do not relate to
someone’s ability to sustain concentration, persistence, and pace, and that the RFC contains
capabilities that are not reflective of the limitations found by Dr. Lovko. [Filing No. 30 at 3.]
The ALJ’s RFC assessment and the hypothetical questions posed to the vocational expert
“must incorporate all of the claimant’s limitations supported by the medical record.” Varga v.
Colvin, 794 F.3d 809, 813 (7th Cir. 2015). Among the mental limitations that must be considered
are deficiencies in concentration, persistence, or pace. Id. The Seventh Circuit has repeatedly held
that restricting a claimant who has limitations of concentration, persistence, and pace to “simple,
routine tasks” “d[oes] not adequately account for the plaintiff’s medical limitations, including an
impairment in concentration.” Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009); see also

12

Varga, 794 F.3d at 814-15 (noting that the Seventh Circuit has “repeatedly rejected the notion that
. . . confining the claimant to simple, routine tasks and limited interactions with others adequately
captures temperamental deficiencies and limitations in concentration, persistence, and pace”);
O’Connor-Spinner v. Astrue, 627 F.3d 614, 618-19 (7th Cir. 2010) (limiting claimant to “routine,
repetitive tasks with simple instructions” did not account for “moderate limitation in concentration,
persistence and pace”).
The Seventh Circuit does not require the hypothetical questions presented to the vocational
expert to explicitly use the words “limitations in concentration, persistence, or pace,” but there are
only limited circumstances when the absence of such language is sufficient. See O’ConnorSpinner, 627 F.3d at 619. First, a hypothetical question may be sufficient if the record shows that
the vocational expert independently reviewed the claimant’s medical record or heard testimony
directly addressing the claimant’s limitations. Id. Second, the hypothetical may be sufficient when
the language specifically excluded tasks that someone with the claimant’s limitations could not
do. Id. Third, the hypothetical may be sufficient when it mentions the claimant’s underlying
conditions that limit his concentration, persistence, or pace. Id. at 620.
Both parties agree that Dr. Lovko’s opinion, which the ALJ afforded great weight, provides
that Mr. DeLong has moderate limitations of concentration, persistence, and pace, [Filing No. 1210 at 20], and that under Step Two of the Analysis, the ALJ acknowledged this limitation, [Filing
No. 12-2 at 37]. Specifically, Dr. Lovko noted that Mr. DeLong was moderately limited under the
following categories: “[t]he ability to understand and remember detailed instructions,” [Filing No.
12-10 at 24]; and “[t]he ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods,” [Filing No. 12-10 at 25]. Both parties also acknowledge that

13

during the hearing, the ALJ failed to include in the hypothetical to the vocational expert Mr.
DeLong’s moderate limitations of concentration, persistence, or pace. [See Filing No. 12-2 at 9197.] Mr. DeLong argues that this is reversible error and the Commissioner disagrees. Since the
ALJ failed to instruct the vocational expert of this limitation, the Court will use the standard above
to determine whether the ALJ committed reversible error.
First, the record does not reveal whether the vocational expert had the opportunity to review
Mr. DeLong’s records. During the hearing, the ALJ never asked the vocational expert whether he
reviewed the records, and the parties do not indicate whether he did. Given this, the Court assumes
that the vocational expert did not review the records. Second, the variations of the hypothetical
that the ALJ posed to the vocational expert resulted in tasks that someone with moderate
limitations of concentration, persistence, or pace is unable to do. In the hypothetical that the ALJ
incorporated in the RFC analysis, the ALJ asked the vocational expert in part whether there are
jobs for someone with “the capacity to understand, remember, and carry out . . . simple, routine,
tasks . . . [where] the individual has the capacity to use commonsense understanding.” [Filing No.
12-2 at 92-93.] The Seventh Circuit has held that “employing terms like ‘simple, repetitive tasks’
on their own will not necessarily exclude from the [vocational expert’s] consideration those
positions that present significant problems of concentration, persistence and pace,” and that “[t]he
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.” O’Connor-Spinner, 627 F.3d at 620 (internal and external
citations omitted). Lastly, the RFC does not contain restrictions necessary for someone with
moderate limitations of concentration, persistence, or pace, given that the ALJ incorporated in the
RFC analysis the limitations of someone who can engage in “simple, routine tasks.” [See Filing

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No. 12-2 at 39.] On remand, the ALJ must properly instruct the vocational expert of Mr. DeLong’s
moderate limitations of concentration, persistence, and pace.
C. Other Issues
As discussed above, the Court has found that remand is necessary based on the first two
issues. In the interest of thoroughness, the Court will briefly discuss Mr. DeLong’s other
arguments.
With respect to the credibility analysis, Mr. DeLong claims that the ALJ made several
pronouncements that were either patently false or failed to tell the whole story. [Filing No. 21 at
30.] He further claims that there are instances in the record that note that Mr. DeLong failed to
put forth the full effort during testing, but that the examining source attributed those instances to
his mental condition or personality. [Filing No. 21 at 30-31.] As examples, Mr. DeLong cites to
examination records of Mr. DeLong from Dr. Stephen Herman and Dr. Blake. [Filing No. 21 at
30-31.] A credibility determination by the ALJ is given “considerable deference.” Prochaska,
454 F.3d at 728. The ALJ’s credibility determination will be reversed only if she fails to base the
determination on grounds that are reasonable or supported by the evidence of record. See Sims v.
Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). The Court agrees that the ALJ characterized the
record as though Mr. DeLong put forth a poor effort during his examinations, but as noted by Mr.
DeLong, certain medical examiners – like Dr. Blake – attributed this behavior to his mental
condition. On remand, the ALJ must accurately assess the medical examinations that discuss Mr.
DeLong’s mental impairments and give a proper credibility analysis.
Mr. DeLong next claims that the ALJ improperly dismissed the testimony of Richard Stark
– Mr. DeLong’s friend who testified at the administrative hearing that Mr. DeLong’s memory was
getting worse – because the ALJ noted that the last time he had contact with Mr. DeLong was over

15

a year ago. [Filing No. 21 at 27.] Mr. DeLong points out that Mr. Stark actually testified that he
spoke with Mr. DeLong over amateur radio broadcasting five to six times per day. [Filing No. 21
at 27-28.] An ALJ may consider evidence from non-medical sources, “such as spouses, parents,
friends, and neighbors,” and should “explain the weight given . . . or otherwise ensure that the
discussion of the evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the [ALJ’s] reasoning, when such opinions may have an effect on the outcome
of the case.” SSR 06-03P (Aug. 9, 2006). The Court finds that the ALJ improperly gave little
weight to Mr. Stark’s testimony when she claimed that it was because Mr. Stark was in contact
with Mr. DeLong a year ago. In fact, Mr. Stark testified that he was in contact with Mr. DeLong
via telephone at least five to six times per day, but that the last time he saw Mr. DeLong in person
was a year ago. [Filing No. 12-2 at 90.] On remand, the ALJ should give a proper account of Mr.
Stark’s testimony.
Next, Mr. DeLong argues that the ALJ erred when she found that Mr. DeLong’s amnestic
disorder was not a severe impairment. [Filing No. 21 at 18.] He claims that the ALJ was playing
doctor in making that determination because the evidence and medical sources demonstrate that
he has significant cognitive impairments. [Filing No. 21 at 20.] “[I]f a plaintiff satisfies his burden
of establishing that he suffers from any severe impairment, the ALJ simply must continue to step
three of the analysis.” Raines v. Astrue, 2007 WL 1455890, at *7 (S.D. Ind. 2007). “[N]o error
could result solely from [the ALJ’s] failure to label an impairment as ‘severe’. . . . What matters
is that the ALJ considers the impact of all of the claimant’s impairments – severe and non-severe
– on his ability to work.” Id. Given that the ALJ found that Mr. DeLong suffered from other
severe impairments at Step Two and continued with the subsequent steps of the analysis, the Court
finds that the ALJ’s failure to find that Mr. DeLong’s amnestic disorder constitutes a severe

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impairment is harmless error. However, whether severe or not, the ALJ must still factor limitations
from Mr. DeLong’s amnestic disorder into the RFC. For instance, as discussed under Section
II.A.1., the ALJ did not take into account evidence regarding Mr. DeLong’s severe processing and
memory problems. On remand, the ALJ must review evidence related to Mr. DeLong’s amnestic
disorder diagnosis and discuss whether and to what extent it causes any further limitations.
Lastly, Mr. DeLong argues that the Appeals Council failed to “exhibit or associate” with
the record a comprehensive neuro-psychological evaluation and other records from Indiana
Neuroscience Associates from 2015 and early 2016 that Mr. DeLong submitted after the ALJ’s
decision. [Filing No. 21 at 15.] Mr. DeLong claims that even though the Appeals Council rejected
the evidence as “non-qualifying,” it was still required to include it in the record for this Court’s
review. [Filing No. 21 at 15-18.] Before filing its response, the Commissioner supplemented the
record with these records. [See Filing No. 28.] Because this decision requires remand on other
grounds, the Court instructs the ALJ to determine whether those records relate back to the
appropriate adjudicatory period, and if they do, appropriately consider Mr. DeLong’s limitations.
IV.
CONCLUSION
For the reasons detailed herein, the Court VACATES the ALJ’s decision denying Mr.
DeLong benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. §
405(g)(sentence 4) as detailed above. Final Judgment will issue accordingly.

Date: July 31, 2017

Distribution via ECF only to all counsel of record
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