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Date: 02-12-2019
Case Style:
Ronnie L. Winsted, Jr. v. Nancy A. Berryhill, Acting Commissioner of Social Security
Case Number: 18-2228
Judge: Brennan
Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Vigo County)
Plaintiff's Attorney: Timothy E. Burns and Nicolas Thomas Lavella
Defendant's Attorney: Jill Z. Julian and Kathryn E. Oliver
Description:
Ronnie Winsted applied for disability
insurance benefits and supplemental security income
claiming disability based on numerous conditions, including
degenerative disc disease, osteoarthritis, and anxiety. An
administrative law judge denied benefits, finding that Winsted
could work with certain limitations. After the district
2 No. 18‐2228
court upheld this denial, Winsted appealed, arguing the ALJ
did not consider his difficulties with concentration, persistence,
and pace. We agree—the ALJ did not adequately
explain how the limitations he placed on Winsted’s residual
functional capacity accounted for the claimant’s mental difficulties,
so we remand to the agency.
I. Background
Winsted was 42 years old when he applied for benefits,
asserting an onset date of October 2010. Although he initially
alleged he became disabled in 2005, two prior applications
alleging this onset date were denied and deemed administratively
final.
Winsted suffers from multiple physical impairments,
mostly associated with his previous work in hard labor as an
industrial truck driver, a highway maintenance worker, and
an operating engineer. MRIs taken in 2010 and 2011 showed
he had focal, isolated degenerative disc disease. Other tests
revealed osteoarthritis, mild carpal tunnel syndrome in his
hands, and cavus (high‐arched) foot that he treats with special
shoes.
Winsted complained of shortness of breath in May 2011
and was diagnosed with acute bronchitis and chronic obstructive
pulmonary disease (“COPD”). Although he wheezed at
times, he often responded well to medication. Throughout the
relevant period, Winsted sometimes complained of wheezing,
but often his lungs were clear. A pulmonary function test
in 2013, however, showed Winsted had moderate obstructive
lung disease and possibly restrictive lung disease.
Winsted began seeing an internist, Dr. Nedu Gopala, for
back pain in August 2013. The doctor prescribed medication
No. 18‐2228 3
for Winsted’s breathing, chest pain, back pain, and anxiety.
At appointments throughout 2013 and into March 2015,
Winsted’s range of motion in his arms and legs alternated
from full, to limited. He maintained a chronic cough, mild
shortness of breath, and wheezing, though a 2014 pulmonary
function test did not show any evidence of lung obstruction.
To address stress‐related heart issues, Winsted sought
mental‐health treatment in 2012. A therapist diagnosed him
with a panic disorder, post‐traumatic stress disorder, and
major depressive disorder. Winsted had a guarded attitude,
“very little insight,” “below average” intellect, and was
assigned a Global Assessment of Function (“GAF”) of 51,
indicating he had moderate difficulty in social and occupational
functioning.1 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994).
In his therapy appointments, Winsted regularly complained
about altercations with neighbors.
Later that year, Winsted sought treatment from a psychiatrist,
who diagnosed major depressive disorder and assigned
a GAF of 45, indicating a serious impairment in social or
occupational functioning. AM. PSYCHIATRIC ASS’N, supra. The
psychiatrist reported that Winsted was tense, anxious, “very
restless,” and moderately depressed. He prescribed medication
for anxiety and depression and continued to treat Winsted.
1 The GAF, which assesses an “individual’s overall level of functioning,”
Craft v. Astrue, 539 F.3d 668, 676 n.7 (7th Cir. 2008), is no longer widely
used by psychiatrists and psychologists, but it was sometimes referred to
in social security disability hearings during Winsted’s proceedings.
See Price v. Colvin, 794 F.3d 836, 839 (7th Cir. 2015).
4 No. 18‐2228
Between September 2013 and February 2015, Winsted’s
mental health fluctuated. In September 2013, Winsted’s
psychiatrist reported that his affect was appropriate, his
mood was not depressed, and “on the whole [he was] doing
better.” But two months later, Winsted’s affect was anxious,
his mood was depressed, he was “feeling more irritable,
anxious, and restless,” and he suffered panic attacks. At a
therapy session in July 2014, a therapist reported Winsted’s
“symptoms of depression and worry impair overall functioning,”
and in August and November 2014, he was “mildly
depressed.” But in February 2015, Winsted presented with an
appropriate affect and a not‐depressed mood. The same was
true in April 2015, though Winsted reported he sometimes felt
“tense and anxious” and stress continued to cause him to
“become overwhelmed.”
The disability application also triggered an examination in
2013 from an agency psychologist, Dr. Steven Marlow, who
diagnosed Winsted with major depressive disorder, a generalized
anxiety disorder, and a panic disorder. Specifically, he
reported Winsted “has a[n] avoidant, hostile, and easily
distracted attitude.” Dr. Marlow determined Winsted had
below average levels of mental control, understanding and
memory, and concentration; poor levels of persistence; and he
did not do well in social situations.
A state‐agency physician, Dr. George Siderys, also examined
Winsted in 2013 and opined he had a mild functional
impairment. This included: “mild decrease in range of motion,”
pain that would be “expected to cause him problems
with prolonged standing, walking, or heavy lifting,” and a
history of heart difficulties that would cause him to “wear out
if he participated in prolonged walking or lifting.”
No. 18‐2228 5
In connection with Winsted’s disability claim, treating
physician Dr. Gopala completed a physical residual functional
capacity (“RFC”) questionnaire in early 2015 and
reported Winsted suffered from hypertension, COPD, and
back pain, and described Winsted’s prognosis for back pain
as “poor.” He determined Winsted had a “painful range of
movement” and was incapable of performing even “low
stress” work. Dr. Gopala also wrote that Winsted’s symptoms
would affect his attention and concentration frequently; he
could walk only about one block; and he could sit or stand for
only 15 minutes at a time.
In April 2015, treating therapist Jessica Nevill filled out a
mental RFC questionnaire. She opined Winsted had marked
impairments in his abilities to: relate to other people, respond
to supervision, respond to work pressures, and respond
appropriately to changes in the work setting. She wrote
Winsted would miss work three to four days per month
because of his impairments.
After the Social Security Administration denied Winsted’s
application, he had a hearing before an ALJ. Winsted testified
he used an inhaler twice a day, slept with a CPAP machine,
used a nebulizer for breathing every three months, and continued
to smoke a half‐a‐pack of cigarettes per day. He said
he could not grip a two‐liter bottle with his left hand. Due to
the pain in his knees and feet, he said he could stand for only
a few minutes and, even then, he could not stand still. He also
said he could walk only a few blocks before needing to stop
and catch his breath, and experienced chest pain three to four
times per week. He noted he has trouble getting along with
people and does not like to be around groups.
6 No. 18‐2228
After Winsted testified, the ALJ asked the vocational
expert (“VE”) three hypothetical questions. First, the ALJ
asked the VE to consider an individual of the same age,
education, and work experience as Winsted. He continued:
This hypothetical individual would be capable
of light work, but four hours maximum standing
and walking in an eight hour day, only
occasional climbing of ramps, and stairs, but no
ropes, ladders, or scaffolds, only occasional balancing,
stooping, kneeling, crouching, and
crawling. Frequent, but not constant handling
and fingering bilaterally. This individual would
need to avoid concentrated exposure to breathing
irritants, such as fumes, orders, dust, and
gasses, as well as wet, slippery surfaces, and
unprotected heights and would further be
limited to only simply reaching, repetitive tasks,
with few workplace changes, no team work,
and no interactions with the public.
The expert determined such a person could work as a bench
assembler, electronics worker, or production assembler. In
the second hypothetical, the ALJ asked about an individual
with the same limitations as in the first hypothetical, but who
also “due to impair‐related symptoms, such as the need to lay
down during the day to relieve pain would be off task 20% of
the work day.” The VE replied that such an individual could
not sustain employment. Finally, the ALJ asked about a person
with all the same limitations as provided in the first hypothetical,
“but due to the frequency of bad days versus good
days, this individual would have two unscheduled absences
No. 18‐2228 7
per month.” Again, the VE answered, “there would be no
jobs.”
The ALJ conducted the Administration’s 5‐step analysis,
see 20 C.F.R. § 404.1520(a), § 416.920(a), and found Winsted
not disabled. At Step 1 the ALJ determined Winsted had not
engaged in substantial gainful activity since October 22, 2010.
At Step 2 the ALJ identified Winsted’s severe impairments as
degenerative disc disease of the lumbar spine, bilateral carpal
tunnel syndrome, osteoarthritis in his left knee, bilateral
cavus foot, COPD, obstructive sleep apnea, obesity, an affective
disorder, and an anxiety disorder. At Step 3 the ALJ
acknowledged Winsted had moderate difficulty with social
functioning and concentration, persistence, and pace because
of his mental‐health issues, but concluded these severe
impairments did not meet a listing for presumptive disability.
Between Steps 3 and 4 the ALJ determined Winsted had the
requisite RFC to perform light work with certain limitations
(as provided in the first hypothetical, and including being
limited to “simple, routine, repetitive tasks with few workplace
changes, no team work, and no interaction with the public”)
but his limitations precluded him from performing his
past relevant work (Step 4). At Step 5 the ALJ concluded,
based on Winsted’s age, education, work experience, and
RFC, that he was capable of successfully changing to other
work.
Winsted appealed to the agency’s Appeals Council, which
denied review. He then sought judicial review, and the parties
agreed to have a magistrate judge adjudicate this case.
See 28 U.S.C. § 636(c). That judge upheld the ALJ’s decision.
8 No. 18‐2228
II. Analysis
A. ALJ’s Evaluation of Winsted’s Limitations in Concentration,
Persistence, and Pace
Winsted argues neither the ALJ’s RFC nor his first hypothetical
question properly accounted for the finding that he
has “moderate” difficulties with concentration, persistence,
and pace. He submits the ALJ’s proposed limitations—that
Winsted perform only “simple, routine, repetitive tasks with
few workplace changes”—fail to address his concentration‐
functioning deficits because “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).
Winsted’s argument here is correct. Again and again, we
have said that when an ALJ finds there are documented
limitations of concentration, persistence, and pace, the hypothetical
question presented to the VE must account for these
limitations. Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir.
2018); Varga, 794 F.3d at 814‐15; OʹConnor‐Spinner v. Astrue,
627 F.3d 614, 620 (7th Cir. 2010); Stewart v. Astrue, 561 F.3d
679, 684 (7th Cir. 2009); Kasarsky v. Barnhart, 335 F.3d 539, 544
(7th Cir. 2003); see also Young v. Barnhart, 362 F.3d 995, 1003
(7th Cir. 2004). We have also made clear that in most cases
“employing terms like ‘simple, repetitive tasks on their own
will not necessarily exclude from the VE’s consideration those
positions that present significant problems of concentration,
persistence and pace,” and thus, alone, are insufficient to present
the claimant’s limitations in this area. OʹConnor‐Spinner,
627 F.3d at 620; see Moreno, 882 F.3d at 730. Here, at Step 3 the
ALJ found Winsted’s moderate difficulties with
No. 18‐2228 9
concentration, persistence, and pace could cause problems
with concentration and following written instructions, as well
as stress with changes in his routine. And Winsted’s psychiatrist
and therapist both remarked that stress caused Winsted
to “become overwhelmed” and his depression impaired his
overall functioning.
But the first hypothetical the ALJ posed to the VE did not
direct the expert to consider problems with concentration,
persistence, and pace, which is the hypothetical the ALJ relied
on for the RFC. Though particular words need not be
incanted, we cannot look at the absence of the phrase “moderate
difficulties with concentration, persistence, and pace” and
feel confident this limitation was properly incorporated in the
RFC and in the hypothetical question. See OʹConnor‐Spinner,
627 F.3d at 619. The ALJ may have thought, as the agency
proposes, he was addressing Winsted’s concentration difficulties
by including limitations that would minimize social
interaction. But that restriction could just have likely been
meant to account for Winsted’s moderate difficulty with
social functioning—the ALJ acknowledged Winsted experiences
anxiety, panic attacks, and irritability when he is around
people. Nothing in the hypothetical question and the RFC,
however, accounted for the ALJ’s discussion of how
Winsted’s low GAF scores reflect serious mental‐health
symptoms or his mention that Winsted often “appeared tense,
anxious, and/or restless” without interacting with other people.
Additionally, where a claimant’s limitations are stressrelated,
as Winsted’s appear to be, the hypothetical question
should account for the level of stress a claimant can handle.
See Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir. 2007);
Johansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002).
10 No. 18‐2228
But there was no restriction related to stress in the RFC or
hypothetical question.
Notably, it appears the ALJ disregarded testimony from
the VE about a person with limitations in concentration, persistence,
and pace. The ALJ asked two additional hypothetical
questions of the VE about an individual who would either be
off task 20% of the workday or would have two unscheduled
absences per month—presumably assuming someone with
“moderate difficulties with concentration, persistence, and
pace.” The VE responded that neither individual could
sustain employment. But these responses are not reflected in
the ALJ’s decision, which means it cannot stand.
B. ALJ’s Evaluation of the Medical Opinion Evidence
Winsted also challenges the evidentiary weight the ALJ
gave to four medical opinions, two from treating medical
professionals (Dr. Gopala and Ms. Nevill) and two from state
agency doctors (examining psychologist Dr. Marlow and
consultative examiner Dr. Siderys).
Before reaching the merits of this argument, we must
address the agency’s contention that Winsted waived it. The
agency is not correct on this; Winsted never “knowingly and
intelligently relinquished” his claim, Wood v. Milyard, 566 U.S.
463, 470 n.4 (2012). That he developed the argument poorly
means at most he forfeited it. Brown v. Colvin, 845 F.3d 247,
254 (7th Cir. 2016).
Forfeited or not, this argument fails. In the decision, the
ALJ adequately articulated why he gave each opinion the
weight he did, entitling his decision, in this respect, to our
deference. See Elder v. Astrue, 529 F.3d 408, 413, 416 (7th Cir.
No. 18‐2228 11
2008). Starting with Dr. Gopala, the ALJ appropriately questioned
the doctor’s conclusion—that Winsted had a painful
range of motion that made him incapable of engaging in
“low‐stress” work—in light of other record evidence. This
included Dr. Gopala’s own notes, which showed Winsted
regularly had a full range of motion, no gross sensory or
motor deficits, fine motor skills within normal limits, and
lungs that “have often been clear.” And though treating physician’s
opinions, like Dr. Gopala’s, are usually entitled to
controlling weight, see 20 C.F.R. § 404.1527(c)(2); SSR 96‐2p,2
an ALJ may discredit the opinion if it is inconsistent with the
record. See Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016);
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); 20 C.F.R.
§ 404.1527(c)(2).
Next, Winsted argues the ALJ erred in giving little evidentiary
weight to Ms. Nevill’s mental RFC assessment. But the
ALJ wrote he discounted her report because she was a
non‐medical professional, and thus not an “acceptable medical
source” See 20 CFR § 404.1513(a), § 416.913(a). Also, her
findings were “based solely on [Winsted’s] subjective
complaints”—an appropriate reason for an ALJ to discount
an opinion, see Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.
2008). Additionally, he found Ms. Nevill’s report, like Dr. Gopala’s,
was inconsistent with Winsted’s medical‐health record
as a whole. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012)
(citing 20 C.F.R. § 404.1527(c)(2)‐(3)).
2 The treating‐physician rule, which was eliminated for claims filed after
March 27, 2017, see 20 C.F.R. § 404.1520c (2017), still applies to Winsted’s
earlier filed claim, see Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018);
20 C.F.R. § 404.1527.
12 No. 18‐2228
Finally, Winsted claims the ALJ gave short shrift to the
two state examiners’ 2013 opinions, asserting the ALJ erred in
discussing the state psychologist’s evaluation “in one
sentence” and the state physician’s opinion in a footnote. But
as the agency points out, the ALJ discussed these opinions
throughout the decision. The ALJ cited the state psychologist’s
findings when discussing Winsted’s mental‐health
diagnosis, and referred repeatedly to the state physician’s
opinion throughout his discussion of Winsted’s gait, grip
strength, and scattered wheezing. The court applies a
common‐sense reading to the entirety of an ALJ’s decision.
Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004); Shramek
v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000). Here, the ALJ adequately
articulated his reasons for discounting these two
opinions—both reports were based on only one evaluation
and largely reflected Winsted’s subjective reporting. See Elder,
529 F.3d at 416; Rice, 384 F.3d at 371 (ALJs should rely on
medical opinions “based on objective observations,” not
“subjective complaints.”); 20 C.F.R. § 404.1527(c)(i) (ALJs
should consider “frequency of examination” in weight it
assigns opinion).
Outcome: Because the ALJ’s hypothetical question to the vocational
examiner and the residual function capacity did not capture
one of Winsted’s most significant problems—his concentration‐
functioning deficits—we conclude further proceedings
are necessary on that issue only. Therefore, we REVERSE the
district court judgment and REMAND this case to the Social
Security Administration.
Plaintiff's Experts:
Defendant's Experts:
Comments: