Jozefyk v. Colvin

Filing 19

ORDER signed by Chief Judge William C Griesbach on 3/5/18. The decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner. (cc: all counsel)(Griesbach, William

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHRISTOPHER JOZEFYK,
Plaintiff,
v.

Case No. 16-C-1361

NANCY A. BERRYHILL,
Defendant.

DECISION AND ORDER

This is an action for judicial review of a decision by the Commissioner of Social Security
denying Plaintiff Christopher Jozefyk’s applications for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social Security Act. Jozefyk contends that the
decision is not supported by substantial evidence. In particular, he asserts that the Administrative
Law Judge (ALJ) failed to obtain a valid waiver of his statutory right to counsel, to adequately
develop the record, and to account for his moderate difficulties maintaining concentration,
persistence, and pace in formulating his residual functional capacity (RFC). For the reasons set forth
below, the decision of the Commissioner will be affirmed.
BACKGROUND
Jozefyk filed an application for a period of disability and disability insurance benefits on
January 10, 2013, and an application for supplemental security income on December 5, 2012. R.
105, 141. Both applications alleged that he has been disabled since December 31, 2011. Id. In the
Disability Report filed in support of his application, Jozefyk listed the following physical or mental
impairments that he claimed limited his ability to work: “1. spinal injury, mental illnesses, vision

impairment; 2. diabetes; 3. back injury herniated discs in neck; 4. myopia and cataracts; 5.
[d]epression; 6. astigmatism; 7. visually impaired; 8. head injury with permanent damage physical
& mental; 9. overlapped toes foot problems; 10. [f]lat feet and pes planus with ankles giving way;
and 11. [h]istory of liver function failure.” R. 246. At the time of his applications, Jozefyk was 32
years old and lived with his mother and step-father in Niagara, Wisconsin. R. 149. He has not
worked since December 2011, and before that he worked various jobs as a security guard and in
retail settings. R. 85–88.
Jozefyk’s applications were denied both initially on June 6, 2013, and on reconsideration on
October 4, 2013. R. 120, 137, 157, 174. He requested a hearing before an ALJ, and ALJ MaryAnn
Lunderman held a hearing on March 23, 2015. R. 80, 188. At the hearing, Jozefyk appeared
without counsel and testified on his own behalf, and the ALJ also heard testimony from Vocational
Expert (VE) Allen Noll. R. 80–81.
At the hearing, Jozefyk testified that he was 5' 6" in height and weighed 250 pounds. He was
a high school graduate and last worked in December 2011. R. 85. Jozefyk testified that he was no
longer looking for work because he had “really bad anxiety and depression.” Id. His last job had
been as a security guard for a private gated community in Florida which he had held for three and
a half years. He left that employment when the company he worked for lost the contract with the
community where he had been working and placed him at a new location that was too far from his
home. R. 86. Jozefyk testified that before that he worked for three months at a gas station as a
cashier but also did janitorial work and other tasks that were required. Prior to that job, he worked
as a security guard for three other companies. He was terminated from the first after three or four
months because a supervisor did not like him, from the second because the company lost its contract,
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and the other due to a change in management. Prior to that, he worked six years at a retail store as
a cashier and doing customer assistance. R. 86–88.
Expanding on why he was unable to work, Jozefyk testified:
I have severe depression, anxiety. I have memory problems, I forget things a lot. I
have, I have pain everywhere, every day. I get migraines frequently. I have, I have
a foot problem where I can’t stand or walk for too long and also I have a knee
problem, where my knee goes out on me a lot. I have back pain every day, spasms
probably twice a week. And that’s about it.
R. 88.
Although he was still current on his license, Jozefyk testified that he could no longer work
as a security guard because “I can’t stand or sit for too long because of my knee and my foot.” R.
90. He testified he could lift only ten pounds without hurting himself, sit for a couple of hours at a
time, stand for a half hour, and walk a quarter mile. He spent his days on his computer, either on
Facebook or other sites, or watching TV. He did housework when he had to, but washing dishes
bothered his back after a while and he would sometimes drop dishes because he had weakness,
trembling, and pain in his hands. He could also do laundry and vacuum, but everything he did hurt
his back. He also cared for his mother’s two cats. R. 90–91.
Following Jozefyk’s testimony, the ALJ examined the VE. In the course of questioning the
VE, the ALJ posed the following hypothetical:
Let’s assume a hypothetical individual who is the same age with the same vocational
and educational background as the claimant. Assume further, the hypothetical
individual is limited to medium work and the hypothetical individual is further limited
to simple, routine, repetitive tasks . . . requiring no more than occasional contact with
supervisors and coworkers, no contact with the public, but no supervisor or
coworker should be situated in close proximity to the assigned work area, and by
that, within 10 to 15 feet.

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R. 94. In response to questions that followed, the VE testified that the hypothetical individual would
not be able to perform Jozefyk’s past relevant work as a security guard or cashier, but would be able
to find work in the national economy as a floor waxer, dishwasher/kitchen helper, or machine
operator. R. 94–96. The ALJ adjusted the hypothetical, reducing the exertional level to light, and
the VE testified that the altered hypothetical person could find jobs in the national economy as a
packager or hand packager, a bagger, or a projection molding machine tender. R. 96–97. The ALJ
further adjusted the hypothetical, reducing the exertional level to sedentary, and the VE testified that
there would be a small number of jobs in the national economy available to the hypothetical person
as a surveillance system monitor, dowel inspector, and press operator. R. 98–99.
In an eighteen page decision dated May 15, 2015, the ALJ determined that Jozefyk is not
disabled. R. 14–31. The ALJ’s decision followed the five-step sequential process for determining
disability prescribed by the Social Security Administration (SSA). R. 15–16. At step one, the ALJ
concluded that Jozefyk met the insured status requirements through December 31, 2016, and that
he has not engaged in substantial gainful activity since December 31, 2011, the onset date of his
alleged disability. R. 16. At step two, the ALJ concluded that notwithstanding the numerous
physical and mental impairments listed in his Disability Report, Jozefyk had only four severe
impairments: lumbar strain, obesity, degenerative changes in the cervical spine, and affective and
anxiety disorders. R. 22. At step three, the ALJ concluded that Jozefyk did not have an impairment
or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. R. 16–17. Specifically, the ALJ considered listings 1.04
(disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety-related disorders) and
determined that Jozefyk did not have a sufficient combination of marked impairments and repeated
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episodes of decompensation to satisfy the “paragraph B” criteria for any of those listings. R. 17–19.
Nor did the evidence support the existence of any listing’s “paragraph C” criteria. The ALJ also
considered the severity of Jozefyk’s obesity under Social Security Ruling 02-1p. R. 17–18.
Before turning to steps four and five, the ALJ determined Jozefyk’s RFC. With respect to
Jozefyk’s physical impairments, the ALJ found that there was no objective evidence to support
impairment to his low back, even though his physicians had acknowledged a lumber component to
his alleged back pain. The evidence supporting impairment of the cervical spine showed mild
paracentral disc protrusion at C5-6 with very early central disc protrusion at C6-7. R. 20. Despite
this minimal evidence, “[i]n the spirit of generosity and in light of the objective medical evidence,”
the ALJ found that “the claimant suffers from degenerative disc changes in the cervical spine and a
lumbar strain.” R. 21. With respect to the severity and extent of the chronic pain Jozefyk attributed
to his physical impairments, however, the ALJ was less generous. He found that Jozefyk’s testimony
and other statements concerning the intensity, persistence, and limiting effects of his impairments
were not credible:
If the pain was truly as severe and as limiting as claimed, it would be reasonable to
expect to see more aggressive and consistent pain management. Here, the evidence
shows the claimant did not start using pain medication until shortly before the
administrative hearing, and as Dr. Tan noted, he has never had chiropratic care,
physical therapy, or cortisone injections. Thus, I do not find the allegations of severe
and chronic pain to be fully credible.
Id. The ALJ found no medical evidence to support Jozefyk’s assertion that his other alleged physical
impairments created any functional limitations. R. 21–23. The significant discrepancies between the
evidence and Jozefyk’s function reports, the statements he made to a consultative physician, and his
testimony at the hearing, the ALJ noted, “raise concerns about the credibility of the claimant’s

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allegations, particularly since there is no evidence of a worsening in the impairments during that
time.” R. 23–24. Based on the evidence of record, the ALJ found that Jozefyk had “the physical
residual functional capacity to perform medium work secondary to pain and mildly diminished range
of motion in his back in combination with the exacerbating effect of obesity.” R. 24.
As to mental impairments, although Jozefyk had “a very limited history of mental health
treatment during the period at issue,” the ALJ found that “the evidence supports a finding of
affective and anxiety disorders.” Id. Based on this finding, the ALJ added to the RFC of medium
work the following limitation:
[W]ork as assigned is limited to simple and repetitive tasks requiring no contact with
the public and only occasional contact with supervisors and coworkers but with
neither coworkers or supervisors located in close proximity to the assigned work
station, specifically no closer than 10 to 15 feet.
R. 19.
Based on this RFC finding, the ALJ determined at step four that Jozefyk is not capable of
performing his past relevant work as a cashier or security guard. R. 27–28. But considering
Jozefyk’s age, education, work experience, and RFC, the ALJ found that Jozefyk is capable of
performing jobs that exist in significant numbers in the national economy. R. 28. The ALJ relied
upon the VE’s testimony at the hearing that jobs exist for a person of Jozefyk’s age, experience,
education, and RFC at the medium, light, and sedentary exertional levels. R. 29–30. Because the
availability of such work options meant that Jozefyk would be capable of making an adjustment to
other work, the ALJ therefore found that he is not disabled. R. 30. Jozefyk sought review by the
Appeals Council, which denied his request. R. 1–10. He thereafter sought review in this court.

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LEGAL STANDARD
The statute authorizing judicial review of decisions of the Commissioner of Social Security
states that the findings of the Commissioner “as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).
Substantial evidence is “such relevant evidence as a reasonable mind could accept as adequate to
support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (quoting Richardson
v. Perales, 404 U.S. 389, 401 (1971)). Although a decision denying benefits need not discuss every
piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the
conclusions drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the
evidence and her conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636,
638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger
v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93–95
(1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
ANALYSIS
Jozefyk does not challenge the ALJ’s findings concerning his credibility, his alleged physical
impairments, or his physical RFC. Instead, he argues that the ALJ committed three errors: (1) the
ALJ did not obtain an effective waiver of Jozefyk’s statutory right to counsel, (2) the ALJ failed to
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adequately develop the record, and (3) the hypothetical that the ALJ posed to the VE failed to
adequately incorporate the moderate limitations on concentration, persistence, and pace that the ALJ
found as part of the RFC determination. The court will address each claim of error in turn.
A. Waiver of the Statutory Right to Counsel
Jozefyk first argues that the ALJ did not obtain a valid waiver of his right to counsel before
allowing him to proceed pro se at the hearing. Social Security claimants have “a statutory right to
counsel at disability hearings.” Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991). Although
a claimant may waive that statutory right, the Seventh Circuit has held that a waiver will be valid
only if the claimant is advised of “(1) the manner in which an attorney can aid in the proceedings, (2)
the possibility of free counsel or a contingency arrangement, and (3) the limitation on attorney fees
to 25 percent of past due benefits and required court approval of the fees.” Skinner v. Astrue, 478
F.3d 836, 842 (7th Cir. 2007) (quoting Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994)). If the
ALJ does not obtain a valid waiver of the claimant’s right to counsel, the matter must be remanded
for a new hearing unless the Commissioner can establish “that the ALJ fully and fairly developed the
record.” Binion, 13 F.3d at 245.
As soon as the hearing began, the ALJ discussed with Jozefyk his right to be represented by
counsel:
ALJ: . . . You are here today without an attorney or a representative.
[Jozefyk]: Yes.
ALJ: Is that correct?
[Jozefyk]: Correct.
ALJ: Are you aware you have the right to counsel—
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[Jozefyk]: Yes
ALJ: —is [sic] this hearing or representation?
[Jozefyk]: Yes.
ALJ: Have you done anything about trying to find someone to represent you?
[Jozefyk]: I have.
ALJ: And what have you done?
[Jozefyk]: I’ve contacted a few local lawyers here in Green Bay and also one up
where I live and none of them would take my case.
ALJ: So, what have you decided to do?
[Jozefyk]: Do it by myself, I guess.
ALJ: This case has not been continued so if you need more time to try to find
counsel, I can provide that to you. Otherwise we can go ahead and
proceed—without counsel if that’s what you would like to do, or representation.
[Jozefyk]: Yeah, proceed.
R. 82–83. From there, the ALJ continued the hearing and proceeded to question Jozefyk about his
previous employments and alleged impairments.
As the colloquy between Jozefyk and the ALJ quoted above shows, the ALJ reminded him
of his right to counsel before the hearing and offered a continuance to allow him more time to obtain
an attorney. Despite this reminder and offer from the ALJ, Jozefyk explained that he had contacted
multiple lawyers in Green Bay, all of whom had declined to take his case, and he therefore elected
to proceed at the hearing without counsel. From this colloquy, there is no dispute that the ALJ did
not personally explain the advantages of counsel or Jozefyk’s payment options at the hearing.

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The Commissioner asserts, however, the Jozefyk received notice of his right to counsel that
complied with all statutory and regulatory requirements. Under 42 U.S.C. § 406(c),
The Commissioner of Social Security shall notify each claimant in writing, together
with the notice to such claimant of an adverse determination, of the options for
obtaining attorneys to represent individuals in presenting their cases before the
Commissioner of Social Security. Such notification shall also advise the claimant of
the availability to qualifying claimants of legal services organizations which provide
legal services free of charge.
See also 42 U.S.C. § 1383(d)(2)(D); 20 C.F.R. §§ 404.1706, 416.1506. The notice of hearing that
the SSA sent to Jozefyk included a section informing him of his right to obtain representation, as
well as the availability of contingent fee arrangements. R. 196. With that notice of hearing, Jozefyk
also received a form entitled “Your Right to Representation,” which reiterated his right to obtain
representation and the advantages of having an attorney, explained in greater detail the availability
of contingent fee arrangements, and informed him that an attorney may generally charge no more
than 25% of any past-due benefits secured through an appeal to federal court. R. 201–02. The
ability to obtain free legal advice and the possibility of retaining a lawyer on a contingency fee basis
with any fee subject to the limitation of 25% of past due benefits and court approval is also explained
in other documents that were sent to him. R. 176, 182. Jozefyk counters that, despite receiving this
written notice, his decision to proceed at the hearing without an attorney was not the product of a
valid waiver. Implicitly, he seems to contend that the ALJ must personally explain to the claimant
the benefits of obtaining counsel, the 25% withholding limitation on attorney’s fees, and the
availability of free counsel or a contingent fee arrangement. ECF No. 11 at 9–10; ECF No. 18 at 2.
In Skinner v. Astrue, the Seventh Circuit held that a written notice sent to the claimant did
not support a finding that she waived her right to have an attorney represent her because, as the

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Commissioner conceded, the notice in that case did not comport with the circuit’s requirements for
establishing a valid waiver. 478 F.3d 836, 841 (7th Cir. 2007). Here, however, there is no dispute
that the Agency’s “Your Right to Representation” pamphlet contains all of the information required.
Nor is there any real issue as to whether Jozefyk received it. The pamphlet was attached to the
Notice of Hearing that advised him of the date and place of the hearing. Since he appeared at the
time and place of the hearing, it is safe to assume he received the notice and the attached pamphlet,
and Jozefyk does not claim otherwise.
The only question remaining as to this issue is whether the ALJ is required to repeat the same
information at the hearing in order to obtain a valid waiver. I have previously concluded that the
ALJ need not do so. Juza v. Berryhill, No. 17-C-439, 2018 WL 1010209, at *4–5 (E.D. Wis. Feb.
21, 2018). Other district courts in this circuit have reached the same conclusion. See Smith v.
Astrue, 795 F. Supp. 2d 748, 758–59 (N.D. Ill. 2011), rev’d on other grounds, 467 F. App’x 507
(2012); see also Hill v. Berryhill, No. 1:16-CV-523, 2017 WL 1028150, at *3–4 (N.D. Ill. Mar. 16,
2017); Crull v. Colvin, No. 2:13-CV-322-JEM, 2015 WL 1128871, at *11 (N.D. Ind. Mar. 11,
2015). Though the Seventh Circuit has not found a valid waiver of a claimant’s statutory right to
attorney representation based on a pre-hearing written disclosure, Skinner at least suggests that such
a wavier could occur.
In Skinner the court rejected the argument that the ALJ had failed to obtain a valid waiver
of the claimant’s right to appear in person at the hearing when the ALJ failed to provide “a proper
explanation of the significance of appearing in person at an oral hearing and the possible
consequences of waiving her personal appearance and allowing the case to be decided on the written
record.” 478 F.3d at 842. The court held that the waiver form the claimant signed prior to the
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hearing properly informed her of the benefits of appearing personally at the hearing and no further
explanation by the ALJ was required. Id. at 843.
The same reasoning applies here.

Jozefyk received the pamphlet “Your Right To

Representation,” which explains a claimant’s right to legal representation, the limits on the fee an
attorney can charge, the benefits of having such representation, and how to obtain it. R. 201–02.
It is clear from the record that Jozefyk did not have an attorney representing him not because he did
not know that he had a right to have legal representation or did not appreciate the benefit of having
such representation, but because the lawyers he contacted wouldn’t take his case. Though offered
more time to try to find an attorney, Jozefyk elected to proceed without counsel. This response,
considered in conjunction with his receipt of the written notice of his statutory rights, is enough to
show a valid waiver.
B. Development of the Record
“A well-settled proposition regarding social security disability hearings is that ‘[i]t is a basic
obligation of the ALJ to develop a full and fair record.’” Thompson, 933 F.2d at 585 (quoting Smith
v. Sec’y of Health, Educ. & Welfare, 587 F.2d 857, 860 (7th Cir.1978)); see also Smith v. Apfel, 231
F.3d 433, 437 (7th Cir. 2000) (“Although a claimant has the burden to prove disability, the ALJ has
a duty to develop a full and fair record.”). This obligation exists even where the claimant is
represented by counsel, but rises to a special duty for unrepresented claimants unfamiliar with the
hearing process. Id. at 586 (citing Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984)). “The
ALJ’s duty to develop the record fully and fairly where the claimant proceeds without counsel is met
if the ALJ probes the claimant for possible disabilities and uncovers all of the relevant evidence.”
Binion, 13 F.3d at 245.
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Where, as here, a claimant has waived his right to have an attorney represent him, the burden
is on the claimant to show that the ALJ failed to fulfill this duty. Id. A significant omission is usually
required before the court will find that the Secretary failed to assist pro se claimants in developing
the record fully and fairly. Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994). “And an omission
is significant only if it is prejudicial.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (citing
Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997)). “Mere conjecture or speculation that
additional evidence might have been obtained in the case is insufficient to warrant a remand.”
Binion, 13 F.3d at 246. “Instead a claimant must set forth specific, relevant facts—such as medical
evidence—that the ALJ did not consider.” Nelms, 553 F.3d at 1098.
Jozefyk contends that the ALJ failed to adequately develop the record in this case because
she failed to obtain 52 pages of significant medical records concerning his physical and mental
conditions. ECF No. 11 at 12. Though it is not entirely clear from his brief, Jozefyk apparently is
referring to the documents he submitted to the Appeals Council after the ALJ rendered her decision,
which are marked as Exhibits 16E to 19E and 21F to 28F. R. 2–6. The ALJ’s failure to obtain these
records, Jozefyk contends, was prejudicial and requires reversal. ECF No. 11 at 12–14.
The Appeals Council considered this material and concluded that the information it contained
did not provide a basis for changing the ALJ’s decision. R. 2. In fact, the Council noted that most
of the documents supplied were not new because they were copies of documents that were already
part of the record. Id. Some of the evidence submitted by Jozefyk post dated the ALJ’s decision
and thus did not directly bear on Jozefyk’s condition at the time of the hearing. Id. And ten pages
consisted of third party statements, apparently from Jozefyk’s mother and step-father, as well as
correspondence Jozefyk authored. R. 304–12.
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Jozefyk cannot show prejudice by pointing to medical evidence already in the record, and the
ALJ cannot be faulted for failing to gather third party statements from his parents and his own
correspondence. This is especially true given the fact that the regulations place the duty to submit
all evidence that relates to a disability claim on the claimant. See 20 C.F.R. § 404.1512(a) (“In
general, you have to prove to us that you are blind or disabled. You must inform us about or submit
all evidence known to you that relates to whether or not you are blind or disabled.”). At the hearing,
the ALJ specifically asked Jozefyk if the record was complete, and he said the record should include
treatment notes from Dr. Powers, Dr. Kloub, and Dr. Hitch. R. 100. The ALJ then asked if there
were any additional records that he needed to submit, and he responded “No, that’s it.” R. 101.
Jozefyk then submitted records from those three providers after the hearing, which the ALJ received
into the record and considered in arriving at her decision. R. 14.
For some reason, however, Jozefyk submitted only a single page of the October 21, 2014
neuropsychological evaluation report by Dr. Hitch and the first page of Dr. Kloub’s October 15,
2014 report of a neurology consultation visit. R. 476, 478. He submitted the entire reports to the
Appeals Council after the ALJ issued her decision. R. 505–12. The Appeals Council considered the
full reports and concluded that they did not provide a basis for changing the ALJ’s decision, a
decision Jozefyk does not challenge. In fact, neither Dr. Hicks nor Dr. Kloub opined that Jozefyk
was more restricted than the ALJ found. Dr. Hicks, who performed a neuropsychological
evaluation, concluded that “[f]rom a strictly neuropsychological point of view, I would like to think
that there are any number of jobs that Chris might be able to do effectively, particularly since his
scores were generally in the average/low average range and since his memory looked solid and his
executive functioning often looked quite respectable.” R. 508.
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In light of this opinion and given the record as a whole, including the ALJ’s credibility
finding, the Appeals Council’s conclusion that this evidence did not provide a basis for a different
result was not unreasonable. Jozefyk has failed to demonstrate that the ALJ failed to sufficiently
develop the record or that he suffered prejudice.
C. Concentration, Persistence, and Pace Limitations and the ALJ’s Hypothetical
Lastly, Jozefyk argues that the ALJ’s RFC determination and hypothetical to the VE failed
to adequately account for moderate limitations on his ability to maintain concentration, persistence,
or pace (CPP). Under Seventh Circuit precedent, it is well-established that “both the hypothetical
posed to the VE and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations
supported by the medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (quoting Yurt
v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014)). In particular, the Seventh Circuit has found fault
when the ALJ translates a finding of moderate limitations in CPP into an RFC limiting the claimant
to simple, routine, and repetitive tasks. See O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th
Cir. 2010) (rejecting argument that “an ALJ may account generally for moderate limitations on
concentration, persistence or pace by restricting the hypothetical to unskilled work”). But where
a medical source, whose opinion the ALJ reasonably accords great weight, translates his own finding
that the claimant may have moderate difficulties in CPP into an ultimate conclusion that the claimant
can nevertheless perform simple, routine, and repetitive work, the ALJ does not err. Thus, in
Johansen v. Barnhart, the court held that the ALJ did not err in finding that despite the plaintiff’s
moderate limitations in his ability to maintain a regular schedule and attendance, and in his ability to
complete a normal workday and workweek without interruptions from psychologically-based
symptoms, he could still perform repetitive, low-stress work:
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The ALJ did not err in relying on Dr. Matkom’s assessment of Johansen’s mental
RFC. Both Dr. Matkom and Dr. Berney found that Johansen was essentially
“moderately limited” in his ability to maintain a regular schedule and attendance, and
in his ability to complete a normal workday and workweek without interruptions
from psychologically-based symptoms. Dr. Matkom, however, went further and
translated those findings into a specific RFC assessment, concluding that Johansen
could still perform low-stress, repetitive work. Dr. Berney, on the other hand, did not
make an RFC assessment (nor did state-agency physician Ingison). Thus, because Dr.
Matkom was the only medical expert who made an RFC determination, the ALJ
reasonably relied upon his opinion in formulating the hypothetical to present to
Goldsmith.
314 F.3d 283, 288–89 (7th Cir. 2002).
Similarly in this case, despite the state consultative psychologists’ findings that Jozefyk had
moderate limitations in CPP, both Dr. Musholt and Dr. Clark concluded that he “is overall capable
of less stressful, routine work that would not require frequent contact with others.” R. 118–19, 155.
In fact, both thought that Jozefyk’s difficulties with CPP were directly related to his anxiety around
other people. In describing his difficulties with social interaction, Dr. Musholt explained Jozefyk “is
capable of learning, remembering and carrying out simple instructions.” R. 118. He had a moderate
degree of difficulty, however, in “effectively responding to supervisor [sic] & coworkers . . . due to
anxiety.” Id. It was in situations “where he had to be placed around others,” Dr. Musholt opined,
that “he may have moderate difficulty in maintaining A/C/P/P,” id., meaning attention, concentration,
persistence, and pace. The ALJ reasonably captured these limitations in his RFC limiting Jozefyk
to “simple and repetitive tasks requiring no contact with the public and only occasional contact with
supervisors and coworkers but with neither coworkers or supervisors located in close proximity to
the assigned work station, specifically no closer than 10 to 15 feet.” R. 19.
Jozefyk cites Varga v. Colvin as support for his contention that the ALJ in this case erred
in her formulation of his RFC. 794 F.3d 809 (7th Cir. 2015). In Varga, the ALJ found that the
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plaintiff had moderate limitations in CPP and in various functional areas within that broader category,
but then adopted an RFC that only limited her to “simple, routine, and repetitive tasks in a work
environment free of fast paced production requirements.” Id. at 811–13. Jozefyk seems to read
Varga, and Yurt as well, to say that an RFC limiting a claimant to simple, routine, repetitive work
is never appropriate when moderate difficulties in CPP are found. But this is not what these cases
say. In Yurt, the court declined to adopt the blanket rule, based on the instructions in the SSA’s
Mental Residual Functional Capacity Assessment (MRFCA) form, that the boxes checked by the
reviewing psychologist in the worksheet section of the form do not constitute the RFC assessment,
which the Third Circuit had applied in Smith v. Commissioner of Social Security, 631 F.3d 632, 637
(3d Cir. 2010). Yurt, 758 F.3d at 858. But Yurt did not say that the worksheet observations always
control over the doctor’s narrative RFC assessment. And Varga explicitly recognized that “in some
cases, an ALJ may rely on a doctor’s narrative RFC, rather than the checkboxes, where that narrative
adequately encapsulates and translates those worksheet observations.” 794 F.3d at 816 (citing
Johansen, 314 F.3d at 286). The problem in Varga was that the doctor’s narrative RFC was
missing. Under those circumstances, the court held that it was error not to rely on the worksheet
observations. Id. But where the examiner’s narrative is included and is not inconsistent with the
worksheet findings, the ALJ may reasonably rely on it. See Capman v. Colvin, 617 F. App’x 575,
579 (7th Cir. 2015) (“So the ALJ may reasonably rely on the examiner’s narrative in Section III, at
least where it is not inconsistent with the findings in the Section I worksheet.”).
Although the electronic forms used by state agency consultants for assessing Jozefyk’s
mental impairments in this case are not the same as those used in Yurt and Varga, the law has not
changed. A claimant’s RFC is “the most [the claimant] can still do despite [the claimant’s]
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limitations,” 20 C.F.R. § 404.1545(a)(1) (emphasis added), not what he can do with ease or without
moderate difficulty. This is particularly important to note when one considers what the term
“moderate” is intended to mean in this context. The recent rule revisions by the SSA clarify that a
“moderate” limitation means that a claimant’s “functioning in this area independently, appropriately,
effectively, and on a sustained basis is fair.” SSA, Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66138, 66164 (Sept. 26, 2016) (effective January 17, 2017). Although the
revised regulations became effective after the hearing was held in this case, the definitions “are
consistent with how [SSA’s] adjudicators have understood and used those words in [SSA’s]
program since [SSA] first introduced the rating scale in 1985.” 81 Fed. Reg. 66147. As a result,
the definitions set forth in the new rules “do not represent a departure from prior policy.” Id.; see
also Capman, 617 F. App’x at 579 (“A moderate limitation is not a complete impairment.” (citing
Roberson v. Astrue, 481 F.3d 1020, 1024 (8th Cir. 2007))). Thus, moderate difficulty does not
mean that the claimant is unable to perform the activity or task.
It is also important to note that where, as here, a case proceeds to a hearing, it is the
responsibility of the ALJ, not the medical experts, to assess the claimant’s RFC. 20 C.F.R.
§ 404.1546(c). Although the ALJ must consider opinions from medical sources in assessing issues
such as a claimant’s RFC, “the final responsibility for deciding these issues is reserved to the
Commissioner.” Id. § 404.1527(d)(2).
Here, the ALJ carefully considered the opinion of Dr. Musholt, confirmed by Dr. Clark, as
to what impact Jozefyk’s mental impairments would have on his functional capacity. No other
medical sources offered an opinion on the issue. The RFC determined by the ALJ is consistent with
the only medical opinions offered in the case. Neither Dr. Musholt, nor Dr. Clark, indicated that
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Jozefyk was incapable of performing the full range of medium work because of his mental
impairments; at most, they thought he might have moderate difficulty with certain tasks under certain
circumstances. The ALJ formulated an RFC that took into consideration these difficulties by limiting
him to simple and repetitive tasks with minimal direct contact with coworkers and supervisors. I find
no error and substantial evidence supports the ALJ’s finding.
CONCLUSION
For the reasons state above, the decision of the Commissioner is AFFIRMED. The Clerk
is directed to enter judgment in favor of the Commissioner.
SO ORDERED this 5th day of March, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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