# Brown v. Kijakazi

> District Court, N.D. Illinois · September 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10145426

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10145426

## How later opinions describe it (automated extraction)

- reversing ALJ’s decision because limitation to “simple, routine, and repetitive tasks” did not account for plaintiff’s limitations in concentration, persistence, or pace
- reversing ALJ’s decision because limitation to “routine, repetitive tasks with simple instructions” did not account for plaintiff’s limited abilities in concentration, persistence, or pace

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELLEN B.,

Plaintiff, No. 19 CV 2501

v.
Magistrate Judge McShain
KILOLO KIJAKAZI,
ACTING COMMISSIONER OF SOCIAL
SECURITY,1

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Ellen B. brings this action under 42 U.S.C. § 405(g) for judicial review
of the Social Security Administration’s (SSA) decision denying her application for
benefits. For the following reasons, the Court grants plaintiff’s motion for summary
judgment [15],2 denies the Commissioner’s motion for summary judgment [22],
reverses the SSA’s decision, and remands this case for further proceedings.
Procedural Background
Plaintiff applied for disability insurance benefits on August 14, 2015, alleging
a disability onset date of April 17, 2015. [13] 159-165. The claim was denied initially
and on reconsideration. [Id.] 86-96. Plaintiff requested a hearing, which was held by

1 In accordance with Fed. R. Civ. P. 25(d), Kilolo Kijakazi, the Acting Commissioner of Social
Security, is substituted as the defendant in this case in place of the former Commissioner of
Social Security, Andrew Saul.

2 Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings. However, citations to the
administrative record [13] refer to the page number in the bottom right corner of each page.
an ALJ on October 24, 2017. [Id.] 33-57. In a decision dated March 14, 2018, the ALJ
found that plaintiff was not disabled. [Id.] 15-28. The Appeals Council denied review
on February 12, 2019 [id.] 1-4, making the ALJ’s decision the final agency decision.

This Court has jurisdiction to review the SSA’s decision under 42 U.S.C. § 405(g).3
Legal Standard
Under the Social Security Act, disability is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A).

To determine whether a claimant is disabled, the ALJ conducts a five-step
inquiry: (1) whether the claimant is unemployed; (2) whether the claimant has a
severe impairment or combination of impairments; (3) whether the claimant’s
impairment meets or equals any listed impairment; (4) whether the claimant can
perform his past relevant work; and (5) whether the claimant is unable to perform
any other available work in light of his age, education, and work experience. See 20

C.F.R. §§ 404.1520(a)(4) & 416.920(a). “An affirmative answer leads either to the next
step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer
at any point, other than Step 3, ends the inquiry and leads to a determination that a
claimant is not disabled.” Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).

3 The parties have consented to the exercise of jurisdiction by a United States Magistrate
Judge. [10].
The Court reviews the ALJ’s decision deferentially to determine if it is
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “not a
high threshold: it means only ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Karr v. Saul, 989 F.3d 508, 511 (7th Cir.
2021) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019)). But the standard
“is not entirely uncritical. Where the Commissioner’s decision lacks evidentiary
support or is so poorly articulated as to prevent meaningful review, the case must be
remanded.” Brett D. v. Saul, No. 19 C 8352, 2021 WL 2660753, at *1 (N.D. Ill. June
29, 2021) (internal quotation marks and citation omitted).
Discussion

Plaintiff, who was 34 years old on her alleged onset date, see [13-4] 58, sought
disability benefits based on her diabetes mellitus with peripheral neuropathy,
obesity, depression, HIV-positive status, hyperthyroidism, hyperlipidemia,
hypertension, and lower back pain. [13-3] 18.
At step one of his written decision rejecting plaintiff’s claim, the ALJ found
that plaintiff has not engaged in substantial gainful activity after her alleged onset

date. [13] 17. At step two, the ALJ found that plaintiff had three severe impairments:
diabetes mellitus with peripheral neuropathy, obesity, and depression. [Id.]. At step
three, the ALJ found that plaintiff’s impairments did not meet or medically equal the
severity of any listed impairment. [Id.]. 18-19. Regarding the paragraph B criteria for
Listing 12.04, which governs depressive, bipolar, and related disorders, and Listing
12.06, which governs anxiety and obsessive-compulsive disorders, the ALJ found that
plaintiff has “moderate limitations” in her “ability to concentrate, persist, or maintain
pace.” [Id.] 19. The ALJ then explained that:
[t]he limitations identified in the “paragraph B” criteria are not a
residual functional capacity assessment but are used to rate the severity
of mental impairments at steps 2 and 3 of the sequential evaluation
process. The mental residual functional capacity assessment used at
steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment. The following residual functional capacity
assessment reflects the degree of limitation I have found in the
“paragraph B” mental functional analysis.

[Id.] 20.
Before proceeding to step four, the ALJ found that plaintiff has the RFC to
perform a range of sedentary work. [13-3] 20. More specifically, the ALJ found that
plaintiff “can understand, remember, and carry out simple, routine work
instructions,” can “make simple, work-related decisions,” and “can adapt to occasional
changes in the work setting with minimal to moderate work related responsibilities.”
[Id.]. The ALJ also stated that he had “incorporated the claimant’s paragraph B
limitations”–that is, plaintiff’s moderate limitations in concentration, persistence, or
pace–by “finding that the claimant is limited to simple, routine work instructions,
simple, work-related decisions, and adaptation to occasional changes in the work
setting with minimal to moderate work-related responsibilities.” [Id.] 25-26.
At step four, the ALJ found that plaintiff cannot perform her past relevant
work as a gas station manager and supervisor. [13-3] 26. Finally, at step five, the ALJ
found that jobs existed in significant numbers in the national economy that plaintiff
could perform: clerk, polisher, and charge account clerk. [Id.] 26-27. Accordingly, the
ALJ found that plaintiff was not disabled. [Id.] 27.
Plaintiff argues that the Commissioner’s decision should be reversed and
remanded because (1) the ALJ’s RFC determination–and the corresponding
hypothetical question that he posed to a vocational expert (VE) at the hearing–failed

to account for plaintiff’s moderate limitations in concentration, persistence, or pace;
and (2) the ALJ’s evaluation of plaintiff’s subjective symptom allegations was
patently wrong. [15] 10-15. The Court agrees with plaintiff that the ALJ’s RFC
determination failed to incorporate her moderate limitations in concentration,
persistence, or pace. The Court also agrees that the hypothetical question that the
ALJ posed to the VE did not capture these limitations. Consequently, the Court
concludes that the Commissioner’s decision must be reversed.4

A. The RFC Did Not Account for Plaintiff’s Limitations
in Concentration, Persistence, or Pace.

“A disability claimant’s RFC describes the maximum she can do in a work
setting despite her mental and physical limitations.” Thomas v. Colvin, 745 F.3d 802,
807 (7th Cir. 2014). “An ALJ must evaluate all relevant evidence when determining
an applicant’s RFC[.]” Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012). “Although
an ALJ need not mention every snippet of evidence in the record, the ALJ must
connect the evidence to the conclusion; in so doing, he may not ignore entire lines of
contrary evidence.” Id. at 592.
“Concentration, persistence, or pace refers to the ability to sustain focused
attention and concentration sufficiently long to permit the timely and appropriate

4 Given the Court’s ruling on this issue, the Court need not address plaintiff’s second
argument for reversing the Commissioner’s decision.
completion of tasks commonly found in work settings.” 20 C.F.R. § 404, Subpt. P, App.
1 § 12.00C(3).
The ALJ’s RFC finding “must incorporate the ‘totality of a claimant’s

limitations,’ including any ‘deficiencies of concentration, persistence and pace.’”
Mischler v. Berryhill, 766 F. App’x 369, 375 (7th Cir. 2019) (quoting O’Connor-
Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010)). “Though an RFC assessment
need not recite the precise phrase ‘concentration, persistence, or pace,’ any
alternative phrasing must clearly exclude those tasks that someone with the
claimant’s limitations could not perform.” Paul v. Berryhill, 760 F. App’x 460, 465
(7th Cir. 2019).

As seen above, the ALJ found that plaintiff had moderate limitations in her
ability to concentrate, persist, or maintain pace. [13-3] 19. Consistent with that
finding, Dr. Thomas Low, the state agency medical consultant at the initial level,
opined that plaintiff was “moderately limited” in the “ability to maintain attention
and concentration for extended periods.” [Id.] 64. Dr. Low further opined that plaintiff
was “moderately limited” in her “ability to complete a normal workday and workweek

without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods.” [Id.] 65.
On the evaluation form that asked him to explain “in narrative form the sustained
concentration and persistence capacities and/or limitations,” Low stated that plaintiff
“would have some difficulty completing work days due to mood variation,” but could
“follow at least simple directions, do simple tasks, in a routine work setting onan [sic]
extended basis.” [Id.]. Notably, the ALJ gave Dr. Low’s assessment “significant
weight” because “the objective medical evidence support [sic] the degree of
limitation[.]” [13-3] 24.

Nevertheless, the ALJ failed to incorporate any of these limitations into
plaintiff’s RFC, nor did he offer a reasoned explanation for omitting these limitations.
To the contrary, the ALJ purported to accommodate the limitations stemming from
plaintiff’s mental impairments by limiting plaintiff to “simple, routine work
instructions, simple, work-related decisions, and adaptation to occasional changes in
the work setting with minimal to moderate work related responsibilities.” [13-3] 25-
26. This was reversible error because a limitation to performing simple work does not

account for a claimant’s moderately limited abilities in concentration, persistence, or
pace.
“The Seventh Circuit has repeatedly found that requiring a claimant to
perform only ‘simple’ work–whether in the form of tasks performed, judgments and
decisions made, or instructions followed–does not account for moderate limitations in
concentration, persistence, or pace.” Dula A. v. Saul, No. 18 CV 4253, 2019 WL

3386998, at *5 (N.D. Ill. July 26, 2019). This is because “[t]he ability to stick with a
given task over a sustained period of time”–that is, one’s ability to concentrate,
persist, or maintain pace–“is not the same as the ability to learn how to do tasks of a
given complexity.” O’Connor-Spinner, 627 F.3d at 620. “A task can be simple, but a
person with a poor attention span may still become distracted and stop working.”
Mischler, 766 F. App’x at 376. Thus, “[r]estricting a person to simple routine tasks,
as the ALJ has done here, is unrelated to the question of whether an individual with
. . . difficulties with concentration, persistence, and pace can perform such
work.” Dula A., 2019 WL 3386998, at *6 (citing Varga v. Colvin, 794 F.3d 809, 814

(7th Cir. 2015)).
In this case, the ALJ found that plaintiff had moderate limitations in
concentration, persistence, or pace, but did not incorporate those limitations into the
RFC determination. See [13-3] 19-20, 25-26. Dr. Low–whose opinion was given
“significant weight” by the ALJ–opined that plaintiff had a moderately limited ability
to maintain attention and concentration for extended periods and “would have some
difficulty completing work days due to mood variation,” but the ALJ did not mention

or account for these limitations in evaluating plaintiff’s RFC. Instead, the ALJ
purported to accommodate plaintiff’s moderate limitations in concentration,
persistence, or pace by limiting plaintiff to “simple, routine work instructions, simple,
work-related decisions, and adaption to occasional changes in the work setting with
minimal to moderate work related responsibilities.” [13-3] 25-26. As the cases cited
above make clear, however, such limitations do not adequately account for a

claimant’s limitations in concentration, persistence, or pace. See Varga, 794 F.3d at
814 (reversing ALJ’s decision because limitation to “simple, routine, and repetitive
tasks” did not account for plaintiff’s limitations in concentration, persistence, or
pace); O’Connor-Spinner, 627 F.3d at 620-21 (reversing ALJ’s decision because
limitation to “routine, repetitive tasks with simple instructions” did not account for
plaintiff’s limited abilities in concentration, persistence, or pace); Dula A., 2019 WL
3386998, at *5-6 (collecting cases on this point); see also Moreno v. Berryhill, 882 F.3d
722, 730 (7th Cir. 2018) (reversing Commissioner’s decision because limitation to
“simple work instructions” and “routine work” and ability to “exercise simple work

place judgments” with “no more than occasional changes” did not account for
plaintiff’s moderate limitations in concentration, persistence, or pace).
In sum, the ALJ’s RFC determination did not incorporate the totality of
plaintiff’s limitations. The RFC therefore lacks a substantial evidentiary basis, and
the Commissioner’s decision must be reversed.
B. The ALJ’s Hypothetical Did Not Encompass
Plaintiff’s Limitations in Concentration, Persistence, or Pace.

The ALJ’s failure to incorporate plaintiff’s moderate limitations in
concentration, persistence, or pace tainted the hypothetical question that the ALJ
posed to the VE. See Paul, 760 F. App’x at 465 (accepting argument that ALJ’s failure
to incorporate moderate limitations in concentration, persistence, or pace in RFC can
“taint[ ]” hypothetical question posed to VE and VE’s opinion as to number of jobs
existing in national economy that plaintiff can perform).
At the hearing, the ALJ consulted a VE to determine whether jobs existed in
the national economy that plaintiff was capable of performing. See [13-3] 51-55. The
ALJ asked the VE to assume a claimant with the same physical RFC as plaintiff and
who was also able to “understand, remember and carry out simple, routine work

instructions” and “adapt to occasional changes in the work setting with minimal to
moderate work related responsibilities” and proceeded to question the VE about the
kinds of jobs such a claimant could perform. [Id.] 52-53. Nowhere did the ALJ ask the
VE to consider plaintiff’s moderately limited abilities in concentration, persistence,
or pace, nor did he ask the VE to consider her difficulty–identified by Dr. Low–in
completing workdays due to mood variations. See [id.].

The ALJ’s phrasing of the hypothetical question was thus reversible error
because it did not orient the VE to plaintiff’s moderate limitations in concentration,
persistence, or pace, and the limitations identified by the ALJ–simple, routine work
instructions and decisions, occasional changes in the work setting, and minimal-to-
moderate job responsibilities–have nothing to do with concentration, persistence, or
pace. See Moreno, 882 F.3d at 730 (“We have repeatedly rejected the notion that a
hypothetical like the one here confining the claimant to simple, routine tasks . . .

adequately captures temperamental deficiencies and limitations in concentration,
persistence, and pace.”) (internal brackets and quotation marks omitted); Mischler,
766 F. App’x at 376 (limitation to occasional changes in work setting “primarily deals
with workplace adaptation, rather than concentration, persistence, and pace”).
Under Seventh Circuit case law, an ALJ must “orient the VE to the totality of
a claimant’s limitations,” and “[a]mong the limitations the VE must consider are

deficiencies of concentration, persistence and pace.” O’Connor-Spinner, 627 F.3d at
619. “Again and again,” the Seventh Circuit has “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.” Winsted v.
Berryhill, 923 F.3d 472, 476 (7th Cir. 2019).
The Seventh Circuit has 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.” Winsted, 923 F.3d at 477 (internal quotation marks omitted).
“Although it is not necessary that the ALJ use the precise terminology of
‘concentration,’ ‘persistence,’ or ‘pace,’ [a court] will not assume that a VE is apprised
of such limitations unless he or she has independently reviewed the medical record.”
Varga, 794 F.3d at 814.
In questioning the VE in this case, the ALJ failed to include a limitation in

plaintiff’s ability to concentrate, persist, or maintain pace, and the limitations that
the ALJ asked the VE to consider did not adequately capture plaintiff’s limitations in
this area. “As a result, the vocational expert’s assessment of the jobs available to
[plaintiff] necessarily is called into doubt, as is the ALJ’s conclusion that [plaintiff] is
not disabled under the Social Security Act.” Moreno, 882 F.3d at 730.
Attempting to salvage the ALJ’s decision, the Commissioner relies on

Burmester v. Berryhill, 920 F.3d 507 (7th Cir. 2020). See [23] 2. In that case, the ALJ
found that Burmester “had moderate difficulties in her ability to sustain
concentration, persistence or pace,” but did not expressly include “those limitations
in the residual functional capacity evaluation or questions to the vocation expert.”
Burmester, 920 F.3d at 511. Rather, the ALJ gave “great weight” to the limitations
and opinions expressed by Dr. Meyers–including Meyers’ opinion that “maintaining
concentration and attention should be manageable” for Burmester–and “[t]hese
limitations were given to the vocational expert” when the ALJ posed the hypothetical
to the VE at the hearing. Id. The fact that the ALJ did not use the specific phrase

“concentration, persistence, or pace” did not require reversal, the court ruled, because
“an ALJ may reasonably rely upon the opinion of a medical expert who translates
these findings [i.e., findings respecting a claimant’s limits in concentration,
persistence, or pace] into an RFC determination.” Id.
Likening this case to Burmester, the Commissioner argues that the ALJ
reasonably relied on Dr. Low’s translation of his findings respecting plaintiff’s
concentration, persistence, or pace into an RFC determination when the ALJ posed

the hypothetical question to the VE. [23] 2-3.
The Commissioner’s argument has no merit. When the ALJ questioned the VE,
the ALJ failed to include a key component of Dr. Low’s “translation” of his findings
in the hypothetical: namely, that plaintiff “would have some difficulty completing
work days due to mood variation.” Compare [13-4] 65 (Dr. Low’s narrative summary)
with [13-3] 52-53 (transcript of ALJ’s examination of VE). Therefore, even accepting

that the ALJ could have relied on Dr. Low’s narrative translation of his findings into
an RFC determination, the ALJ did not in fact do so. Instead of asking the VE to
assume a claimant with some difficulty completing workdays, the ALJ asked the VE
to assume a claimant who was capable of simple, routine work and who could adapt
to occasional changes in the work setting. For that reason, the hypothetical posed by
the ALJ did not permit the VE to exclude jobs that plaintiff–who, as the ALJ found,
had moderate limitations in concentration, persistence, or pace, and who, as Dr. Low
found, would have some difficulty completing workdays—could not perform.
Accord Winsted, 923 F.3d at 477; Moreno, 882 F.3d at 730; Yurt v. Colvin, 758 F.3d
850, 858-59 (7th Cir. 2014).
“The best way” for the ALJ to ensure that the VE is fully apprised of the
claimant's limitations “is by including the specific limitations—like CPP
[concentration, persistence, or pace] in the hypothetical.” Crump v. Saul, 932 F.3d
567, 570 (7th Cir. 2019). Because the ALJ failed to include plaintiffs moderate
limitations in concentration, persistence, or pace in the hypothetical he posed to the
VE, the ALJ’s decision must be reversed. See Moreno, 882 F.3d at 730.
Conclusion
Plaintiffs motion for summary judgment [15] is granted, and the
Commissioner’s motion for summary judgment [22] is denied. The decision of the SSA
is reversed, and, in accordance with the fourth sentence of 42 U.S.C. § 405(g), this
case is remanded for further proceedings consistent with this Memorandum Opinion
and Order.
A atl AC Me. Ln
HEATHER K. McSHAIN
United States Magistrate Judge

DATE: September 17, 2021

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10145426. Public record. Not legal advice.