BURKE v. BERRYHILL

Filing 14

ENTRY REVIEWING THE DEPUTY COMMISSIONER'S DECISION - Plaintiff Gary B. applied for supplemental security income from the Social Security Administration ("SSA") on September 8, 2014, alleging an onset date of June 1, 1992. [Filing N o. 5 -2 at 34.] His application was initially denied on December 3, 2014, [Filing No. 5 -7 at 2], and upon reconsideration on March 20, 2015, [Filing No. 5 -7 at 9]. Administrative Law Judge Julia Gibbs (the "ALJ") held a hearing on M ay 24, 2016. [Filing No. 5 -2 at 52-92.] The ALJ issued a decision on March 1, 2017, concluding that Gary B. was not entitled to receive supplemental security income. [Filing No. 5 -2 at 31.] The Appeals Council denied review on January 22, 2018 . [Filing No. 5 -2 at 2.] On March 15, 2018, Gary B. timely filed this civil action asking the Court to review the denial of benefits according to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). [Filing No. 1 .] "The standard for disa bility claims under the Social Security Act is stringent." Williams-Overstreet v. Astrue, 364 F. App'x 271, 274 (7th Cir. 2010). "Even claimants with substantial impairments are not necessarily entitled to benefits, which are paid f or by taxes, including taxes paid by those who work despite serious physical or mental impairments and for whom working is difficult and painful." Id. at 274. Taken together, the Court can find no legal basis presented by Gary B. to reverse the ALJ's decision that he was not disabled during the relevant time period. Therefore, the decision below is AFFIRMED. Final judgment will issue accordingly. (See Entry). Signed by Judge Jane Magnus-Stinson on 10/10/2018.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GARY B., 1

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Deputy Commissioner )
for Operations, Social Security Administration, 2
)
)
Defendant.
)

No. 1:18-cv-00833-JMS-TAB

ENTRY REVIEWING THE DEPUTY COMMISSIONER’S DECISION
Plaintiff Gary B. applied for supplemental security income from the Social Security
Administration (“SSA”) on September 8, 2014, alleging an onset date of June 1, 1992. [Filing No.
5-2 at 34.] His application was initially denied on December 3, 2014, [Filing No. 5-7 at 2], and
upon reconsideration on March 20, 2015, [Filing No. 5-7 at 9]. Administrative Law Judge Julia
Gibbs (the “ALJ”) held a hearing on May 24, 2016. [Filing No. 5-2 at 52–92.] The ALJ issued a
decision on March 1, 2017, concluding that Gary B. was not entitled to receive supplemental
security income. [Filing No. 5-2 at 31.] The Appeals Council denied review on January 22, 2018.

1

In an attempt to protect the privacy interests of claimants for Social Security benefits, consistent
with the recommendation of the Court Administration and Case Management Committee of the
Administrative Office of the United States courts, the Southern District of Indiana has opted to use
only the first name and last initial of non-governmental parties in its Social Security judicial review
opinions.
2

It has come to the Court’s attention that on March 6, 2018, the General Counsel of the U.S.
Government Accountability Office (GAO) notified the President that effective November 17,
2017, Nancy A. Berryhill could no longer serve as the “Acting Commissioner” of the Social
Security Administration pursuant to the Federal Vacancies Reform Act of 1998, Pub.L.No. 105277, Div. C, Title I, 112 Stat. 2681-611 (Oct. 21, 1998), as amended, 5 U.S.C. §§ 3345-3349d.
GAO, https://www.gao.gov/products/D18772#mt=e-report (last visited Aug. 13, 2018). The case
caption has been updated to reflect Ms. Berryhill’s current official title.
1

[Filing No. 5-2 at 2.] On March 15, 2018, Gary B. timely filed this civil action asking the Court
to review the denial of benefits according to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). [Filing
No. 1.]
I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits … 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 accord 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. § 416.920(a)(4)(i)-(v),
evaluating the following, in sequence:

2

(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 [Deputy Commissioner]; (4) whether the claimant can
perform his past work; and (5) whether the claimant is capable of performing work
in the national economy.
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 Deputy Commissioner. See 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 where all factual issues have been resolved and the record can
yield but one supportable conclusion.” Id. (citation omitted).

3

II.
BACKGROUND
Gary B. was 60 years of age at the time he applied for supplemental security income.
[Filing No. 5-8 at 2.] He has completed at least a high school education and was found to have no
past relevant work. [Filing No. 5-2 at 43.] 3
The ALJ followed the five-step sequential evaluation set forth by the Social Security
Administration in 20 C.F.R. § 416.920(a)(4) and ultimately concluded that Gary B. was not
disabled. [Filing No. 5-2 at 44.] Specifically, the ALJ found as follows:
•

At Step One, Gary B. had not engaged in substantial gainful activity 4 since September 8,
2014, the application date. 5 [Filing No. 5-2 at 36.]

•

At Step Two, Gary B. had the following severe impairments: “unspecified anxiety disorder
and unspecified depressive disorder.” [Filing No. 5-2 at 36 (citation omitted).]

•

At Step Three, Gary B. did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments. [Filing No. 5-2 at
37.]

•

After Step Three but before Step Four, Gary B. had the RFC “to perform a full range of
work at all exertional levels but with the following non-exertional limitations: cannot work
around crowds; cannot perform fast-paced work such as assembly line work; cannot
perform tasks which require confrontation with the public or more than superficial
interaction with co­workers; cannot work in a hospital or nursing home setting; and can
perform only unskilled work which does not require remembering complex instructions.”
[Filing No. 5-2 at 39.]

•

At Step Four, Gary B. did not have any past relevant work to evaluate. [Filing No. 5-2 at
43.]

3

The relevant evidence of record is amply set forth in the parties’ briefs and need not be repeated
here. Specific facts relevant to the Court’s disposition of this case are discussed below.
4

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. § 416.972(a).
5

Supplemental security income is not compensable before the application date. 20 C.F.R. §
416.335.
4

•

At Step Five of the analysis, relying on VE testimony considering Gary B.’s age, education,
and RFC, there were jobs that existed in significant numbers in the national economy that
he could have performed through the date of the decision as a hand packager, cleaner, and
dishwasher. [Filing No. 5-2 at 43–44.]
III.
DISCUSSION
Gary B. makes three assertions of error regarding the ALJ’s decision, each of which the

Court will consider in turn.
A. Whether the ALJ Needed to Address Gary B.’s Ability to Sustain Work
Gary B. argues that the ALJ erred by failing to address a line of evidence demonstrating
that he would be incapable of sustaining work in accord with the vocational expert’s testimony
about attendance and on-task tolerances in the competitive workforce. [Filing No. 8 at 18.]
Specifically, Gary B. cites evidence that he needs to attend appointments for necessary treatment
for his impairments consisting of seeing a psychiatrist every few months, meeting with a case
manager on a weekly basis, and attending individual therapy weekly. [Filing No. 8 at 18.] Gary
B. asserts that a claimant must be able to sustain work for a significant period of time in order to
be found capable of earning substantial gainful activity. [Filing No. 8 at 19.] Gary B. concludes
that he “simply requires too much treatment on a regular basis to allow him to maintain a steady
work schedule.” [Filing No. 8 at 19.]
The Deputy Commissioner argues that a pattern of seeking treatment does not conclusively
show disability and that Gary B. has not demonstrated that his medical visits would preclude fulltime employment. [Filing No. 13 at 10.] Further, the Deputy Commissioner asserts that Gary B.
has not established that he is unable to sustain work for more than a short period and that the ALJ’s
RFC adequately accounted for the limitations caused by his mental health impairments. [Filing
No. 13 at 11.]

5

The ALJ does not need to discuss every piece of evidence in the record. Moore v. Colvin,
743 F.3d 1118, 1123 (7th Cir. 2014). However, the SSA provides guidance as to what must be
considered and articulated, including:
In assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996), 1996 WL 374184, at *7.
The Court finds that Gary B. did not present enough evidence to establish that he is unable
to sustain work because of the need to attend medical visits. Nearly every claimant requires
treatment for their impairments. When an ALJ assesses an RFC that does not include the need for
absences or breaks, it can be inferred that the ALJ did not credit the need for further relevant
limitations. As a practical matter, the Court finds that it would be a needless formality to require
that the ALJ articulate in every decision how he or she concluded that necessary treatment visits
could be attended while maintaining a full-time work schedule. While the ruling makes clear that
the adjudicator must consider the ability to sustain an “equivalent work schedule” in assessing an
RFC, the Court finds it only necessary for an ALJ to explain how he or she reached a conclusion
that full-time work could be maintained if the case record establishes “material inconsistencies or
ambiguities” with the relevant evidence. Id.
The Seventh Circuit has not directly addressed the articulation requirements concerning
the ability to sustain work in accord with necessary treatment. The Seventh Circuit did hold in
Moore v. Colvin, 743 F.3d 1118, 1126 (7th Cir. 2014), that it was improper for an ALJ to suggest
that chronic migraines would still allow a significant amount of time to work. “Here, the ALJ

6

appears to have concluded that incapacitating migraines once or twice a week would not be
problematic because she would still have most of the week without such symptoms, but that
essentially ignores the inability to schedule the incapacitating migraines.” Id.
Other district courts within the Seventh Circuit have touched on the issue. In Cooper v.
Colvin, 224 F. Supp. 3d 663, 669 (C.D. Ill. 2016), the court explained:
In this case, the ALJ’s decision lacks any meaningful discussion about how
Plaintiff’s impairments impacted Plaintiff’s ability to sustain full-time work.
Specifically, the ALJ did not discuss Petitioner’s ability to perform sustained work
activities on a regular and continuing basis despite evidence in the record that
Plaintiff would miss two days a month for his infusions, two days a month due to
migraines or the side-effects from the medication for migraines, and may miss some
amount of work due to his multiple medical appointments, many of which, despite
Defendant’s arguments, appear necessary to monitor and control Plaintiff’s various
conditions.
The court found it notable that “the ALJ did not address Plaintiff’s testimony that the infusions
could not be scheduled on the weekends . . . .” Id. at 669–70. In Gossage v. Colvin, 2016 WL
2733331, at *6 (S.D. Ill. May 11, 2016), the court remanded based on an ALJ’s failure to
adequately consider a claimant’s ability to sustain work, noting:
During the period at issue (April 1, 2010 through October 16, 2012), Ms. Gossage
was hospitalized for a total of 25 days and spent another 8 days in an inpatient
rehabilitation facility. Following her discharge from the rehabilitation facility, she
was on non-weightbearing status for about 21 days, and she had to use one crutch
to walk for about another 21 days. In addition, she had substantial outpatient care.
She attended almost daily wound care sessions for over a month, and she attended
a total of 41 physical therapy sessions for her back and shoulder. She also had a
number of doctor’s office and emergency room visits.
By contrast in Fieleke v. Colvin, 2015 WL 540303, at *10 (N.D. Ind. Feb. 9, 2015), the court held
that the claimant had not established that her treatment would preclude sustaining work, noting
that many of her visits were for physical therapy, which lasted less than an hour. “It is also possible
that these and other medical appointments could have been and would be able to be scheduled
around a work schedule, such as on the weekends, during the lunch hour, or before or after work.”
7

Id. In Hoppa v. Colvin, 2013 WL 5874639, at *5 (W.D. Wis. Oct. 31, 2013), the court held that
the claimant had not produced enough evidence establishing that competitive attendance would be
precluded, but also addressed policy concerns implicated by the inquiry. “If the ‘sheer number of
medical visits’ were sufficient on its own, claimants could manufacture their own disabilities
simply by going to the doctor as often as possible for any or no reason.” Id. Taken together, an
ALJ may be obligated to address a claimant’s ability to sustain work, if the claimant presents
sufficient evidence demonstrating that the ability would be precluded by treatment visits which are
necessitated by the claimant’s impairments. Necessary visits may preclude sustaining work if they
are too frequent or otherwise cannot be scheduled around a full-time competitive work schedule,
including if those visits regularly occur on an emergency or otherwise unpredictable basis.
Here, Gary B. does not present evidence that necessary appointments would preclude fulltime work. He receives rather standard treatment with a psychiatrist every few months and weekly
therapy. The frequency of those visits does not appear to be work preclusive, nor is there evidence
that the length of those visits would make it difficult to schedule them around a full-time work
schedule. He has not presented any evidence that the providers are inflexible about when the visits
must occur. Moreover, the ruling above does not imply a full-time work schedule must be 9am to
5pm, which is notable given that the other work Gary B. was found capable of performing included
being a cleaner or dishwasher. Furthermore, Gary B. testified that he needed to see a case manager
on a weekly basis, primarily to help get him through the “bind” he was in after his mother passed
away, including needing to clear out the home where they had lived together and finding alternative
housing. [Filing No. 5-2 at 78; see Filing No. 5-11 at 5–9 (case manager needed due to depressionrelated low motivation to work or find supplemental income, to assist with organizing including
money management to meet rent and utility demands, applying for disability benefits, and cleaning

8

out and selling the overwhelming amount of contents in his home.)] Given the nature of the
assistance provided by the case manager, it is doubtful that arrangements could not have been
made to schedule the visits around working, which would have alleviated many of the primary
concerns. The fact alone that Gary B. must attend these limited appointments does not give rise
to a material inconsistency in the record with his ability to sustain work that needed to be
reconciled. Given the evidence presented, the Court finds it was not reversible error that the ALJ
did not specifically discuss the likelihood that work could be sustained in accord with necessary
treatment visits.
Gary B. also cites Gatliff v. Comm’r of the Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir.
1999), for the proposition that “[w]here it is established that the claimant can hold a job for only a
short period of time, the claimant is not capable of substantial gainful activity.” [Filing No. 8 at
19.] However, the Court agrees with the Deputy Commissioner that the holding of the Ninth
Circuit is not implicated by the record. [Filing No. 13 at 11.] Gary B. does not present any
evidence of record, besides the evidence already discussed above, which establishes that he cannot
hold a job for more than a short period. See Gatliff, 172 F.3d at 693 (“The Commissioner concedes
that Gatliff ‘has a work history showing that he performs a job for a duration of about two months,’
and does not dispute that the pattern will continue, but contends that Gatliff is capable of
substantial gainful activity because he is not precluded from moving from one job to the next job
after termination.”). While Gary B. testified that he has been unable to maintain work in the past
because of panic attacks and depression, see [Filing No. 5-2 at 56], his earnings record does not
indicate any work attempts since 1990, [Filing No. 5-8 at 11]. Further, there is no indication that
he was receiving mental health treatment when he last attempted work, nor that a pattern would

9

continue with the benefit of treatment and within the parameters of the ALJ’s RFC finding (which
will be discussed in greater detail below.)
B. Whether the ALJ Failed to Properly Address Evidence of Limitations Maintaining
Concentration, Persistence, or Pace
Gary B.’s second argument takes issue with the ALJ’s findings that he has no more than
mild difficulties with concentration, persistence, or pace and that “there are no mental status
examination findings showing any significant concentration, memory, or attention deficit.” [Filing
No. 8 at 21 (quoting Filing No. 5-2 at 38).] Specifically, Gary B. argues that the ALJ “apparently
completely ignored” numerous reports from his case manager and therapist that indicated he would
avoid necessary tasks, required prompting and encouragement, was frequently tangential in
conversation, and could not focus to complete those tasks. [Filing No. 8 at 21.] Gary B. asserts
that the ALJ cannot select and discuss only the evidence that favors her conclusion and further
must provide an accurate and logical bridge between the evidence and her conclusions. [Filing
No. 8 at 22 (citing Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996); Diaz v. Chater, 55 F.3d
300, 307 (7th Cir. 1995)).] Gary B. also contends that the ALJ did not adequately convey the
limitations she deemed credible when assessing his ability to perform other work via hypothetical
questioning of the VE. [Filing No. 8 at 22–23 (citing Jelinek v. Astrue, 662 F.3d 805, 813 (7th
Cir. 2011)).] Furthermore, Gary B. argues that the ALJ did not address his reported difficulty
sleeping at night and his need to sleep during the day. [Filing No. 8 at 23–24.]
The Deputy Commissioner argues that the ALJ adequately supported her conclusions about
Gary B.’s mental health functioning, particularly with concentration, persistence, or pace, by
reference to the examination findings in the record.

[Filing No. 13 at 12.]

The Deputy

Commissioner observes that the ALJ did reference the treatment notes from Gary B.’s therapist
and case manager and argues that the ALJ supported her RFC finding by appropriately weighing
10

those sources’ opinions, as well as the other opinion evidence of record. [Filing No. 13 at 12–15.]
The Deputy Commissioner contends that Gary B. has not supported his argument that the full
limitations of record were inadequately conveyed to the VE with citation to the record establishing
the credited limitations that were omitted, but rather only summarizes case law. [Filing No. 13 at
15–17.] Furthermore, the Deputy Commissioner argues that the ALJ did not need to discuss all
the records referring to fatigue, that the evidence was not sufficient to support a finding that the
symptom precluded all work, and the ALJ was not required to convey limitations to the VE that
she did not credit. [Filing No. 13 at 17–19.]
The ALJ did not completely ignore the line of evidence as Gary B. contends, consisting of
his treatment records with his case manager and therapist. “The ALJ’s opinion is important not in
its own right but because it tells us whether the ALJ has considered all the evidence, as the statute
requires [her] to do.” Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). The ALJ
acknowledged the relevant evidence, noting that Gary B. received assistance with “applying for
social security benefits, bill management, and coping skills,” and he “showed symptoms of
hopelessness, lack of healthy sleep at night, difficulty concentrating, low motivation, and loose
conversation.” [Filing No. 5-2 at 42.] Moreover, the ALJ weighed the opinion evidence from
those providers, discussed the portions of their opinions that she credited and discredited, and
provided specific reasons for both with each opinion. [Filing No. 5-2 at 42–43.] Gary B. does not
specifically argue that the ALJ improperly weighed those opinions and to the extent the argument
is implied, he does not develop the argument.
Gary B. also argues that the ALJ effectively ignored the line of evidence, again referring
to the difficulties documented by his case manager and therapist, by not providing a logical bridge
from that evidence to her conclusions. However, the Court finds that argument unavailing as well.

11

For one, unlike the case he cites for the general proposition, Gary B. does not demonstrate that any
portion of the ALJ’s analysis included “illogical or erroneous statements that bear materially on
her conclusion.” Sarchet, 78 F.3d at 307. The Court finds that the argument, as well as the ALJ’s
treatment of the evidence, most closely aligns with the holding of another case cited by Gary B. in
which the Seventh Circuit stated:
An ALJ may not select and discuss only that evidence that favors [her] ultimate
conclusion, but must articulate, at some minimum level, [her] analysis of the
evidence to allow the appellate court to trace the path of [her] reasoning. See Herron
[v. Shalala], 19 F.3d [329,] at 333 [(7th Cir. 1994)]; Carlson v. Shalala, 999 F.2d
180, 181 (7th Cir.1993) (per curiam). An ALJ’s failure to consider an entire line
of evidence falls below the minimal level of articulation required. Herron, 19 F.3d
at 333. But that is not the situation here.
Diaz, 55 F.3d at 307. As in Diaz, when the Court concludes that the ALJ has considered the
important evidence and has minimally articulated her reasoning sufficiently to allow the Court to
follow her logic, Gary B.’s argument effectively asks the Court to reweigh the evidence, which is
beyond the scope of review. Id. at 307–08 (citing Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993);
Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995)).
As noted above, the ALJ recognized that Gary B.’s case manager and therapist observed
symptoms related to his depression and anxiety.

His case manager provided considerable

assistance with certain tasks, including completing his disability application, providing the SSA
with a description of his functional abilities, managing his money to pay rent, and accessing
community resources to pay his utilities. [Filing No. 5-12 at 21.] Gary B. regularly put off the
completion of those tasks on his own. [Filing No. 5-12 at 16.] His case manager further observed
that he seemed to “struggle significantly with anxiety whenever case manager tries to help him get
things done.” [Filing No. 5-13 at 16.] His case manager observed that his anxiety was “evidenced”
by him “veering off topic frequently.” [Filing No. 5-13 at 21.]

12

However, the ALJ observed that formal mental status examinations did not reveal
significant signs of concentration, memory, or attention deficit, when explaining her findings that
(1) Gary B. had only mild limitations with the functional area of concentrating, persisting, or
maintaining pace, [Filing No. 5-2 at 38], and (2) portions of his therapist’s opinion were
inconsistent with the record, [Filing No. 5-2 at 42]. The ALJ discussed the specific findings of
those examinations—which were contemporaneously recorded by Gary B’s treating psychiatrist
at the same provider where he treated with his therapist and case manager—and described him to
be “calm, cooperative with coherent and relevant speech. His mood was described as fine and his
effect euthymic with no deficits noted in his thought process and thought content.” [Filing No. 52 at 41 (citing Filing No. 5-12 at 10; Filing No. 6-12 at 56).] Gary B. also consistently attended
his treatment visits without any evidence of personal hygiene neglect (well-groomed and properly
attired) and there was no indication that he arrived late or cancelled appointments. See [Filing No.
5-12 at 16; Filing No. 5-12 at 21; Filing No. 5-13 at 16; Filing No. 5-13 at 21.]
Moreover, the ALJ supported her finding that Gary B. had only mild limitations in the
functional area of adapting and managing oneself by referencing his testimony that he lives alone
and independently manages his household activities. [Filing No. 5-2 at 38.] When explaining her
credibility finding she explained in more detail that he testified “that his activities include
household chores, simple meal preparation, grocery shopping, and driving regularly.” [Filing No.
5-2 at 40; see Filing No. 5-2 at 74–75 (testimony describing an ability to live independently).]
Gary B. testified that he required a case manager to get through the stressful situation he was in
after his mother passed and to organize the “complex task” of transitioning from living in her house
to on his own. [Filing No. 5-2 at 78.]

13

Furthermore, the ALJ depended on the opinions of experts. In assessing Gary B.’s mental
health functioning, the ALJ gave the most weight to an examining psychologist:
Great weight is given to [the] opinion of consultative examiner, Kristin PerroneMcGovern, Ph.D., as to her overall findings and insofar as it is suggested that the
claimant has no more than moderate limitations. 6 (Exhibit B11F). This is
consistent with the medical records as a whole as well as the claimant’s own
description of his activities, including household chores, shopping, and driving.
[Filing No. 5-2 at 43.] Dr. McGovern completed a diagnostic interview and mental status
examination revealing some abnormalities with (1) pressured, rapid and tangential speech, (2)
serial sevens concentration, and (3) recent memory recall. [Filing No. 5-12 at 36–40.] Dr.
McGovern also reviewed an initial treatment record and assessment from Gary B’s case manager.
[Filing No. 5-12 at 36-40.] Dr. McGovern was aware that Gary B. required outpatient therapy and
was able to live independently and complete relevant activities consistent with the descriptions in
this Entry, including arriving at the appointment on time, alone, and appropriately groomed.
[Filing No. 5-12 at 36-40.] Dr. McGovern concluded that Gary B. was “likely to be able to do a
simple repetitive task continuously for a two-hour period,” and “likely to work at an average
pace.” 7 [Filing No. 5-12 at 36-40.]
In a somewhat related argument, Gary B. cites to a variety of cases within a line of authority
applying the general rule that the VE must be made fully aware of the claimant’s limitations before
an ALJ can depend on the VE’s testimony that work could be performed by a similarly situated

6

The ALJ found only mild limitation in the functional areas discussed so far but did find moderate
limitation with Gary B’s ability to interact with others, noting the indication that he has panic
attacks, yet remains capable of attending doctor appointments, grocery shopping, talking with
others, and driving. [Filing No. 5-2 at 38.]

7

Employers will generally allow a break after every two hours of continuous work. See Givens v.
Colvin, 551 Fed.Appx. 855, 862 (7th Cir. 2013).
14

individual as the claimant. 8 See [Filing No. 8 at 22–25.] Regardless of the basis, a hypothetical
question put by the ALJ to the VE “must fully set forth the claimant’s impairments to the extent
that they are supported by the medical evidence in the record.” Herron, 19 F.3d at 337; 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 he poses to the VE must incorporate all of the
claimant’s limitations supported by medical evidence in the record.”); SSR 96–5p (S.S.A. July 2,
1996), 1996 WL 374183, at *5 (RFC assessment “is based upon consideration of all relevant
evidence in the case record, including medical evidence and relevant nonmedical evidence”); 20
C.F.R. § 416.945. “Among the mental limitations that the VE must consider are deficiencies of
concentration, persistence, or pace.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (citing
Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.
2009)); see Craft, 539 F.3d at 677–78 (7th Cir. 2008) (restricting hypothetical to unskilled work
did not consider difficulties with memory, concentration or mood swings).
However, the Court agrees with the Deputy Commissioner that Gary B. does not complete
his argument by referencing the basis in the record for additional limitations that were omitted.
For example, in O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010), the Seventh
Circuit credited an argument that “the ALJ erred in omitting her moderate limitation on
concentration, persistence and pace from the hypothetical posed to the VE, even though the ALJ
found that such a limitation exists.”

The “ALJ is required only to incorporate into [her]

hypotheticals those impairments and limitations that [she] accepts as credible.” Schmidt v. Astrue,

8

As is typically the case, the ALJ posed a hypothetical question to the VE that described limitations
consistent with the ALJ’s eventual RFC finding. [Filing No. 5-2 at 89.]
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496 F.3d 833, 846 (7th Cir. 2007). Gary B. seems to insinuate that the ALJ should have credited
additional limitations for the reasons already discussed and rejected by the Court above.
In any event, the Court finds that the ALJ’s RFC finding adequately accounted for the
limitations she found credible. As noted above, the ALJ found only mild limitations with
concentration, persistence, or pace and gave the greatest weight to Dr. McGovern’s opinion that
Gary B. could concentrate on simple tasks for continuous two-hour periods while maintaining an
adequate pace. The RFC limited Gary B. to “only unskilled work” and excluded “fast-paced
work.” [Filing No. 5-2 at 39.] Moreover, the Seventh Circuit has “let stand an ALJ’s hypothetical
omitting the terms ‘concentration, persistence and 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.” O'Connor-Spinner, 627 F.3d at 619 (citing Johansen v. Barnhart,
314 F.3d 283, 285–89 (7th Cir. 2002) (upholding hypothetical that excluded situations likely to
trigger the claimant’s panic disorder)). As discussed above there is substantial evidence that the
manifestations of anxiety observed by Gary B.’s case manager and therapist were specifically
triggered by the stress of needing to complete complex tasks. The RFC appropriately limited Gary
B. from needing to remember “complex instructions.” [Filing No. 5-2 at 39.] The ALJ specifically
excluded work in a “hospital or nursing room setting,” [Filing No. 5-2 at 39], based on Gary B.’s
testimony that those settings triggered intrusive thoughts and panic, [Filing No. 5-2 at 87–88].
Furthermore, consistent with the likelihood of anxiety and the ALJ’s finding that Gary B. was
moderately limited with social interaction, she excluded work around crowds, requiring
confrontation with the public, and more than superficial interaction with coworkers. [Filing No.
5-2 at 39.] Accordingly, the Court finds that the ALJ’s RFC findings was supported by substantial
evidence and adequately reflected the limitations of record that the ALJ found credible.

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C. Whether the ALJ’s Subjective Symptoms Assessment was Patently Wrong
Gary B. argues that the ALJ failed to articulate her application of SSR 16-3p with analysis
of the factors used to evaluate subjective symptoms, including daily activities and aggravating
factors. [Filing No. 8 at 26–27.] Gary B. asserts that the ALJ did not provide specific reasons for
her finding. [Filing No. 8 at 26–27.] Gary B. also argues that the ALJ relied solely on the objective
evidence to discredit his symptoms, contrary to law. [Filing No. 8 at 28.] Gary B. reiterates that
the ALJ ignored evidence from treatment with his case manager.

[Filing No. 8 at 29.]

Furthermore, Gary B. acknowledges that the ALJ considered his activities of daily living, but
argues that she failed to consider that they were considerably less strenuous than she alleged and
impermissibly relied on his minimal activities. [Filing No. 8 at 29–30.]
Reviewing courts examine whether a credibility determination was reasoned and
supported; only when an ALJ’s decision “lacks any explanation or support . . . will [the Court]
declare it to be ‘patently wrong.’” Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008). On
March 28, 2016, SSR 16-3p (S.S.A Oct. 25, 2017), 2017 WL 5180304, at *2, became effective,
replacing SSR 96-7p, and providing new guidance regarding how a disability claimant’s
statements about the intensity, persistence, and limiting effects of symptoms are to be evaluated.
Under SSR 16-3p, an ALJ now assesses a claimant’s subjective symptoms rather than assessing
her “credibility.” Id. The Seventh Circuit has explained that the “change in wording is meant to
clarify that administrative law judges aren’t in the business of impeaching claimants’ character;
obviously administrative law judges will continue to assess the credibility of pain assertions by
applicants, especially as such assertions often cannot be either credited or rejected on the basis of
medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (emphasis in original). The
ruling specifies that the SSA uses “all of the evidence to evaluate the intensity, persistence, and

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limiting effects of an individual’s symptoms,” but continues to utilize the regulatory factors
relevant to a claimant’s symptoms, including daily activities and precipitating and aggravating
factors. SSR 16-3p, 2017 WL 5180304, at *7; 20 C.F.R. § 416.929(c)(3).
The Court declines to provide an extensive discussion of the ALJ’s subjective symptoms
analysis, which would largely reiterate the analysis above. The Court finds that Gary B.’s
argument is largely conclusory and does not establish that the ALJ’s assessment was patently
wrong. In addition to analyzing the objective evidence and opinion evidence, the ALJ took into
consideration Gary B.’s testimony, including his ability to live independently, as well as the types
of tasks and settings that precipitate his most severe anxiety symptoms. She also considered his
reported hobbies which include playing guitar, reading, and watching television, [Filing No. 5-2
at 38], indications of noncompliance with medication, [Filing No. 5-2 at 40], and the relatively
conservative treatment required for his mental health impairments, [Filing No. 5-2 at 43]. While
Gary B.’s activities are somewhat limited, and he has required more assistance during a time of
heightened stress to manage complex tasks, the Court is mindful that the ALJ’s assessment of his
subjective symptoms was in the context of a fairly restrictive RFC finding that credited significant
limitations.
IV.
CONCLUSION
“The standard for disability claims under the Social Security Act is stringent.” WilliamsOverstreet v. Astrue, 364 F. App’x 271, 274 (7th Cir. 2010). “Even claimants with substantial
impairments are not necessarily entitled to benefits, which are paid for by taxes, including taxes
paid by those who work despite serious physical or mental impairments and for whom working is
difficult and painful.” Id. at 274. Taken together, the Court can find no legal basis presented by

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Gary B. to reverse the ALJ’s decision that he was not disabled during the relevant time period.
Therefore, the decision below is AFFIRMED. Final judgment will issue accordingly.

Date: 10/10/2018

Distribution:
All Electronically Registered Counsel

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