Yurchak v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NIKKI ELISE YURCHAK, )

)

Plaintiff, )

)

v. ) Case No. 2:20-cv-390-JPK

KILOLO KIJAKAZI, ACTING )

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Nikki Elise Yurchak filed an application for social security disability

benefits, which was denied by the Commissioner of Social Security (“Commissioner”)

initially on October 24, 2018 and upon reconsideration on July 19, 2019. Plaintiff then

requested a hearing before an Administrative Law Judge (“ALJ”), which was held on

November 20, 2019. In a decision dated December 24, 2019, the ALJ found that Plaintiff

was not disabled and denied benefits. Plaintiff filed an appeal with the Social Security

Appeals Council, which was denied. On October 29, 2020, Plaintiff filed the present

complaint seeking judicial review of the Commissioner’s final decision. See 42 U.S.C.

§ 405(g). [DE 1]. The parties have consented to have this case assigned to a United States

Magistrate Judge to conduct all further proceedings and to order the entry of a final

judgment in this case. [DE 5]. Accordingly, this Court has jurisdiction to decide this case

pursuant to 28 U.S.C. § 636(c). After carefully considering the administrative record [DE

13] and the parties’ briefs [DE 15-17], the Court now reverses the ALJ’s decision and

remands for further proceedings.

BACKGROUND

Plaintiff, who is presently thirty-four years old, has a long history of mental health

treatment for bipolar disorder, depression, anxiety, and attention deficit disorder (ADD).

She has reported outpatient mental health counseling since the age of 18, which is when

she began seeing her current treating psychiatrist, Dr. Suhayl Nasr, as well as one

instance of inpatient psychiatric hospitalization at the age of 19, which is when she began

seeing her current treating psychologist, Karen Eggen, Ph.D. [AR 60; AR 6101].

A. RECENT MENTAL HEALTH EVENTS

Notwithstanding her long-time mental health issues, Plaintiff reports having

graduated from high school with an A average, and college with a C average. [AR 610].

She was either in school or employed full-time through 2017, with her most recent full-

time employment beginning in July 2011 and ending in January 2018. [AR 47, 222]. In this

seven-year period, Plaintiff worked exclusively from home as a remote outpatient

medical coder. [AR 222]. Plaintiff’s job as a medical coder went downhill, however,

starting in the fall of 2017. Plaintiff had been on maternity leave from June through

August 2017, returning to work full-time in September 2017. A short time later, in October

2017, Plaintiff’s mother, with whom Plaintiff had a troubled relationship, died

1 Page numbers in the Administrative Record [AR] refer to the numbers assigned by the

filer appearing on the lower right corner of the page, and not the numbers assigned by

the Court’s CM/ECF system appearing in the banner at the top of the page.

unexpectedly in a tragic accident. Plaintiff reports that in November 2017 her employer

instructed her to take a temporary leave of absence because she was not meeting

productivity expectations. During her temporary leave, Plaintiff continued to struggle

with issues of grief, isolation, financial stress, and marital problems. When it was time for

Plaintiff to return to work, she asked her employer to allow her to work part-time. But

she was told there were no part-time positions available, and her employer therefore

terminated her on January 26, 2018. Plaintiff applied for disability insurance benefits on

February 26, 2018 [AR 79], alleging she had been disabled since January 15, 2018. [AR

198]. She later amended the alleged onset date to November 8, 2017. [AR 216]).

B. SELF-REPORTED SYMPTOMS

In two Function Report forms completed in August 2018 and January 2019,

Plaintiff indicated that she has problems concentrating, remembering, and interacting

with people without experiencing anxiety, that she has little motivation to do most things,

and that she is easily overwhelmed or distracted, requiring assistance to complete tasks.

She reported that stressful situations will cause her to shut down, and that she has panic

attacks when she has to go someplace in the car. [AR 231-238; AR 253-260]. At the hearing

before the ALJ, Plaintiff testified that there was “no way” she can concentrate or focus

long enough to work at a job when she is in a manic or depressive phase. [AR 54]. She

testified that she is taking medications to control those phases and had not had a full

blown manic episode in “quite a while.” [AR 55]. But about once a year she will suffer a

hypomanic period that lasts around seven days [AR 55-56], and maybe three to four times

a year, she will suffer a depressive episode that can vary in length but “sometimes last[s]

all winter.” [AR 63-64]. Plaintiff reported that the set-back she experienced after her

mother’s death in October 2017 had not gotten better, and she did not think she could go

back to a medical coding job anymore, even if it was part-time, because it would be too

stressful for her. [AR 65-66].

Plaintiff currently lives with her husband and four-year-old son. She takes care of

the house and her son, although it may take her longer than normal for her to get things

done. Her husband does much of the cooking. [AR 68-69]. She recently worked three days

a week washing dogs for her cousin, who is a dog groomer. Although she was having

problems with her legs standing up all day, she answered “no” when asked if she ever

missed her work at the dog groomer because she was not able to motivate herself to go

to her job. [AR 58-59]. At one point, her cousin asked her to work more hours, but she did

not feel she could mentally or emotionally handle more days than the three days a week

she was already working. [AR 59-60]. Her income from the dog washing job was not

enough to constitute substantial gainful employment.

C. MEDICAL OPINIONS

1. TREATING PSYCHOLOGIST

Plaintiff has been having weekly therapy sessions with Dr. Eggen for at least the

past three to four years. [AR 556]. In August 2018, Dr. Eggen submitted a statement in

support of Plaintiff’s application for disability benefits, which she said was “in lieu of

progress notes” from her therapy sessions with Plaintiff.2 The statement indicates that

2 Dr. Eggen stated that Plaintiff had been seen in her office regularly for the past 10+

years, including 38 times since January 2016. Dr. Eggen later submitted her therapy notes,

Plaintiff “has a long history of bipolar disorder.” Although Plaintiff has been “treatment

and medication compliant,” her bipolar is “extremely medication resistant,” a situation

that has been further complicated by the fact that her insurance would not cover certain

medications she needed to stabilize her mood. Dr. Eggen notes that Plaintiff “is a bright

woman who has good judgment, attention, and memory until she has a mood swing.

During a mood swing, her attention and judgment become impaired.” [Id.]. Plaintiff’s

medical coder job “marginally worked for a number of years since she could work out of

her home and adjust her work hours throughout the day as needed to accommodate

ongoing attention/concentration difficulties. She had struggled on and off throughout

the years but was able to manage because of the extreme flexibility this job afforded her.

She did not need to leave her house, did not need to interact with others, and could start

and stop her workday as needed, as long as she completed her hours.” [Id.]. Dr. Eggen

reports that when Plaintiff’s mother died suddenly and tragically, “the stress of this, in

addition to the birth of her son earlier in the year, resulted in the loss of her job.” [Id.]. She

opines that Plaintiff has “serious concentration and attention issues resulting in her being

unable to concentrate reliably to complete tasks for more than 10 minutes during times

she has mood swings,” and that “[t]hese are unpredictable, serious, and impact her ability

to obtain and keep a job.” [Id.].

which were before the state agency consultant at the reconsideration level and part of the

record before the ALJ. [AR 555-561, 666-669, 687-727, 736-740].

2. CONSULTATIVE PSYCHOLOGICAL EXAMINER

In September 2018, Plaintiff underwent a consultative psychological evaluation by

Dr. Gary Durak, who diagnosed her with generalized anxiety disorder with episodic

panic and agoraphobia, moderately controlled by medications. While Dr. Durak found

that Plaintiff was “adequately focused” during the examination with intact memory and

logical, goal-directed thought processes, he did not state any opinions as to mental

limitations she might have for purposes of work outside the home. [AR 609-614].

3. STATE AGENCY PSYCHOLOGICAL CONSULTANTS

Plaintiff’s application and medical records were reviewed initially by the state

agency psychological consultant on October 24, 2018. The state consultant discounted

Dr. Eggen’s opinion that Plaintiff was unable to concentrate reliably to complete tasks for

more than 10 minutes during times she has mood swings because, he said, “no treatment

notes [were] provided to support this opinion” and the last treatment note in Dr. Nasr’s

records “noted that while [Plaintiff] complains of concentration issues, she was able to

concentrate and focus during [the] app[ointment].” [AR 92]. The state consultant then

observed that Plaintiff was able to care for her son and the house, could go out alone and

drive, and went to stores and bought groceries once a week. He also noted that her

employer reported she was capable of carrying out and understanding very short and

simple instructions, but “[d]id not consistently meet productivity standards.” [Id.]. The

state consultant concluded that, based on “the totality of evidence” in the file, Plaintiff

was able to understand, carry out and remember simple instructions; make judgments

commensurate with functions of simple, repetitive tasks; deal with routine changes in a

work setting; manage occasional contact with the public; and maintain at least a minimal

level of relationship with others. [AR 92].

On July 19, 2019, the state agency psychological consultant at the reconsideration

level “affirmed” the initial consultant’s conclusions. In doing so, he indicated that he had

reviewed Dr. Eggen’s psychotherapy notes, which were not in the record at the time of

the initial state consultant review, and noted that, in December 2018, Dr. Eggen indicated

that Plaintiff had a 22 hour per week cash job as a dog groomer. [AR 109].

4. TREATING PSYCHIATRIST

On September 3, 2019, Dr. Nasr completed a Medical Source Statement form that

had been provided to him by Plaintiff’s attorney. [AR 39]. In the only narrative portion

of the form, Dr. Nasr noted that Plaintiff suffered from depression to mania, and poor

concentration, resulting in job loss for poor performance. [AR 729].

In the remainder of the form, Dr. Nasr designated Plaintiff’s mental functioning

limitations with checkmarks indicating whether her limitations in certain areas of mental

functioning were “none/mild,” “moderate,” “marked,” or “extreme.” [AR 729-732].

Dr. Nasr’s checkmarks indicated that Plaintiff suffered:

• None/mild loss in (a) marginal adjustment, that is, having

minimal capacity to adapt to changes in environment; and

(b) adapting or managing oneself.

• Moderate loss in (a) understanding and remembering detailed

instructions; (b) carrying out detailed instructions;

(c) maintaining regular attendance and being punctual;

(d) sustaining an ordinary routine without special supervision;

(e) dealing with stress of semi-skilled and skilled work;

(f) working in coordination with or proximity to others without

being unduly distracted; (g) accepting instructions and

responding appropriately to criticism from supervisors;

(h) adhering to basic standards of neatness and cleanliness;

(j) setting realistic goals or making plans independent of others;

and (k) ability to concentrate, persist or maintain pace.

• Marked loss in the areas of (a) maintaining attention and

concentration for extended periods, i.e. 2 hour segments;

(b) responding appropriately to changes in a routine work

setting.

• Extreme loss in the areas of (a) completing a normal workday or

workweek, and (b) performing at a consistent pace without

unreasonable number and length of rest periods.

Dr. Nasr also indicated with a check mark that Plaintiff’s impairments or treatment

would cause her to be absent from work more than 3 times per month. Finally, he

responded “yes” to the question “[d]oes your patient have a medically documented

impairment[s] that is serious and persistent*?” The asterisk denoted a reference that

spelled out the technical regulatory definition of “serious and persistent,”3 but the

definition appeared after the space where Dr. Nasr marked a check to indicate “yes” to

the question.

FIVE-STEP EVALUATIVE PROCESS

To be eligible for Social Security disability benefits, a claimant must establish that

she suffers from a “disability,” which is defined as an inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

3 See [AR 732 (“*Note: ‘Serious and persistent’ means a medically documented history of

the existence of the disorder over a period of at least 2 years, and evidence of both medical

treatment, mental health therapy, psychosocial support[s], or a highly structured

setting(s) that is ongoing and that diminishes the symptoms and signs of the mental

disorder; and marginal adjustment, that is, a minimal capacity to adapt to changes in the

environment or to demands that are not already part of the person’s daily life.”)].

impairment that can be expected to result in death or that has lasted or can be expected

to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A).

The ALJ follows a five-step inquiry to determine whether the claimant is disabled. The

claimant bears the burden of proving steps one through four, whereas the burden of proof

at step five is on the ALJ. Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).

At the first step, the ALJ asks whether the claimant has engaged in substantial

gainful activity during the claimed period of disability. An affirmative answer at step one

results in a finding that the claimant is not disabled and the inquiry ends. If the answer

is no, the ALJ moves on to the second step, where the ALJ identifies the claimant’s

physical or mental impairments, or combination thereof, that are severe. If there are no

severe impairments, the claimant is not disabled. If there are, the ALJ determines at the

third step whether those severe impairments meet or medically equal the criteria of any

presumptively disabling impairment listed in the regulations. An affirmative answer at

step three results in a finding of disability and the inquiry ends. Otherwise, the ALJ goes

on to determine the claimant’s residual functional capacity (RFC), which is “an

administrative assessment of what work-related activities an individual can perform

despite his limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). At the

fourth step of the inquiry, the ALJ determines whether the claimant is able to perform his

past relevant work given her RFC. If the claimant is unable to perform past relevant work,

the ALJ determines, at the fifth and final step, whether the claimant is able to perform

any work in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v); id.,

§ 416.920(a)(4)(i)-(v). A positive answer at step five results in a finding that the claimant

is not disabled while a negative answer results in a finding of disability. See Briscoe ex rel.

Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005); 20 C.F.R. § 404.1520(a)(4)(v).

THE ALJ’S DECISION

The ALJ made the following findings relevant to Plaintiff’s arguments in this

appeal:4

1. The claimant meets the insured status

requirements of the Social Security Act through June 30, 2023.

2. The claimant has not engaged in substantial

gainful activity since November 8, 2017, the amended alleged

onset date.

3. The claimant has the following severe

impairments: bradycardia; hypotension; occipital migraine

headaches; bipolar disorder; and attention deficit

hyperactivity disorder (ADHD). The claimant also has the

non-severe impairments of glaucoma and hypothyroidism.

4. The claimant does not have an impairment or

combination of impairments that meets or medically equals the

severity of one of the listed impairments. The severity of the

claimant’s mental impairments, considered singly and in

combination, do not meet or medically equal the criteria of

Listings 12.04 and 12.11.

5. The claimant has the residual functional

capacity to perform a full range of work at all exertional levels

but with the following non-exertional limitations: the

claimant can never climb ladders, ropes or scaffolds but can

frequently climb ramps and stairs; and frequently balance,

stoop, kneel, crouch, and crawl. The claimant can never be

exposed to hazards, including unprotected heights or

dangerous moving machinery. The claimant can understand,

remember, and carry out work that consists of simple, routine

tasks requiring only simple, routine judgments. The claimant

can handle only simple workplace changes. The claimant can

4 The paragraphs listed herein correspond with the paragraphs in the ALJ’s decision.

perform work that requires no more than brief, superficial

interaction with the public (meaning no more involved

interaction than answering discrete questions such as the

location of an item in a store); and occasional interaction with

coworkers with no tandem tasks or teamwork. The claimant

can have only occasional exposure to bright sunshine or

bright, flashing lights. The claimant requires work free of fast-

paced or timed piece rate production but can meet end of day

goals.

6. The claimant is unable to perform any past

relevant work.

7-8. The claimant was born on May 10, 1987, and

was 30 years old on the alleged disability onset date, which is

defined as a younger individual. The claimant has at least a

high school education and is able to communicate in English.

9-10. Transferability of job skills is not material to the

determination of disability because the clamant is “not

disabled,” whether or not she has transferable job skills.

Considering the claimant’s age, education, work experience,

and residual functional capacity, there are jobs that exist in

significant numbers in the national economy that claimant

can perform, including hand packager, assembler, electrical

assembler, and bench assembler.

11. The clamant has not been under a disability

from November 8, 2017 through the date of the ALJ’s

decision.

See [AR 15-26].

STANDARD OF REVIEW

The question before the Court upon judicial review of the Commissioner’s final

decision pursuant to 42 U.S.C. § 405(g) is not whether the claimant is in fact disabled, but

whether the ALJ’s decision “applies the correct legal standard and is supported by

substantial evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); see 42 U.S.C.

§ 405(g). “[I]f the Commissioner commits an error of law,” the Court may reverse the

decision “without regard to the volume of evidence in support of the factual findings.”

White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999). A reversal may also be called for “if the

ALJ based the decision on serious factual mistakes or omissions.” Beardsley v. Colvin, 758

F.3d 834, 837 (7th Cir. 2014) (citing Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996)). “The

ALJ also has a basic obligation to develop a full and fair record,” id., but the Court must

accept the Commissioner’s factual findings as conclusive if they are supported by

substantial evidence, which is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir.

2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “’Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is entitled to benefits,’ the

court must defer to the Commissioner’s resolution of that conflict.” Beardsley, 758 F.3d at

837 (quoting Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).

The Court reviews the entire administrative record but does not “reweigh

evidence, resolve conflicts, decide questions of credibility, or substitute [its] own

judgment for that of the Commissioner.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir.

2011) (quoting Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)).

Nevertheless, the Seventh Circuit has “repeatedly admonished ALJs to ‘sufficiently

articulate [their] assessment of the evidence to assure [the court] that [they] considered

the important evidence and ... to enable [the court] to trace the path of [their] reasoning.’”

Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002) (quoting Hickman v. Apfel, 187 F.3d 683,

689 (7th Cir. 1999)). The ALJ must “build an ‘accurate and logical bridge from the

evidence to [his or her] conclusion’” so that the reviewing court “may assess the validity

of the agency’s ultimate findings and afford a claimant meaningful judicial review.” Id.

(citations omitted).

ANALYSIS

Plaintiff raises two arguments for reversal of the ALJ’s decision. First, she contends

that the ALJ erred in concluding that her bipolar disorder did not meet or exceed the

Listing 12.04, paragraph C criteria. Second, she argues that the ALJ’s RFC findings and

the hypothetical she posed to the vocational expert (“VE”) failed to account for the ALJ’s

finding that Plaintiff has moderate limitations in concentration, persistence, and pace

(“CPP”).

A. WHETHER THE ALJ PROPERLY APPLIED THE LISTING 12.04,

PARAGRAPH C CRITERIA

“Under a theory of presumptive disability, a claimant is eligible for benefits if she

has an impairment that meets or equals an impairment found in the Listing of

Impairments.” Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citing 20 C.F.R.

§ 404.1520(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1). “In considering whether a claimant’s

condition meets or equals a listed impairment, an ALJ must discuss the listing by name

and offer more than a perfunctory analysis” of it. Id. A claimant “has the burden of

showing that [her] impairments meet a listing and [she] must show that [her]

impairments satisfy all of the various criteria specified in the listing.” Ribaudo v. Barnhart,

458 F.3d 580, 583 (7th Cir. 2006). However, the “ALJ should mention the specific listings

[she] is considering and [her] failure to do so, if combined with a ‘perfunctory analysis,’

may require remand.” Id.; see Wiszowaty v. Astrue, 861 F. Supp. 2d 924, 938 (N.D. Ind.

2012).

The listing criteria for bipolar disorder are found at 20 C.F.R. Pt. 404, Subpart P,

App. 1, § 12.04 (Depressive, Bipolar and Related Disorders). Listing 12.04 consists of three

paragraphs, designated A, B, and C. To be presumptively disabling, Plaintiff’s

impairment must satisfy paragraph A and either paragraph B or paragraph C. See id.

§ 12.00A(2).

Paragraph A “includes the medical criteria that must be present in [the claimant’s]

medical evidence,” id. § 12.00A(2)(a), requiring medical documentation of either a

depressive order, id. § 12.04(A)(1), or bipolar disorder, id. § 12.04(A)(2). Ten

characteristics of depressive disorder are listed, of which the medical documentation

must show at least five, while seven characteristics of bipolar disorder are listed, of which

the medical documentation must show at least three. Id. § 12.04A. The ALJ did not discuss

whether Plaintiff presented sufficient evidence to meet the paragraph A criteria,

apparently assuming that she had. Therefore, the Court will do the same.5

The paragraph B criteria are used to assess how the claimant’s mental disorder

limits her functioning in the work setting. Id. § 12.00A(2)(b); see also id. § 12.00F (“We will

5 The Commissioner asserts that Plaintiff “makes no attempt to demonstrate that her

depression was sufficiently severe as to meet the requirements of subsection A of Listing

12.04.” [DE 16 at 4]. This argument is rejected pursuant to SEC v. Chenery Corp., 318 U.S.

80, 87–88 (1943). See Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012) (“Under the Chenery

doctrine, the Commissioner’s lawyers cannot defend the agency’s decision on grounds

that the agency itself did not embrace.”).

determine whether you are able to use each of the paragraph B areas of mental

functioning in a work setting.”). The ALJ must examine the claimant’s abilities in four

areas: (B1) understanding, remembering, or applying information; (B2) interacting with

others; (B3) concentrating, persisting, or maintaining pace; and (B4) adapting or

managing oneself. Id.; see also id. §§ 12.00E, 12.04B. To meet the listing criteria for

paragraph B, a claimant must have at least two “marked” limitations or one “extreme”

limitation of the four listed areas. Id. §§ 12.00A(2); 12.04B. After setting forth the

paragraph B criteria, the ALJ found that Plaintiff had a mild limitation in the first listed

area, and moderate limitations in the remaining three areas. [AR 18-19]. Therefore, the

ALJ concluded, Plaintiff did not meet the paragraph B listing criteria. [AR 19]. Plaintiff

does not challenge that finding.

Finally, paragraph C imposes a “serious and persistent” requirement. Id. § 12.04C.

The criteria under this requirement are divided into three parts: there must be a medically

documented history of the existence of the disorder over a period of at least 2 years, id.

§ 12.04C; and there must be evidence satisfying both paragraph C1 and paragraph C2, id.

12.04C(1), (2). See id. §§ 12.00A(2)(c), 12.00G. Paragraph C1 requires evidence of

“[m]edical treatment, mental health therapy, psychosocial support(s), or a highly

structured setting(s) that is ongoing and that diminishes the symptoms and signs of [the

claimant’s] mental disorder.” Id. § 12.04C(1); see also id. § 12.00G(2)(b). Paragraph C2

requires evidence of “[m]arginal adjustment, that is, [the claimant] ha[s] minimal

capacity to adapt to changes in [her] environment or to demands that are not already part

of [her] daily life.” Id. § 12.04C(2). Unlike in her discussion of paragraph B, the ALJ did

not identify the paragraph C criteria. Instead, she noted that she “has also considered

whether the ‘paragraph C’ criteria are satisfied,” and immediately followed with the

conclusion that “the evidence fails to establish” they are. [AR 19]. The ALJ then briefly

explained her conclusion:

At the hearing, the claimant’s representative argued that the

claimant meets the C criteria due to her inability to adapt to

changes in her environment (Hearing Testimony). The

undersigned notes that the doctor, Suhayl Nasr, M.D., found

that the claimant had no limitations in adapting or managing

oneself (Exhibit 17F). The claimant further stated at the

consultative psychological examination that she took care of

her own personal needs, cooked, and did the normal cleaning

(Exhibit 8F). The claimant also takes care of her young son

(Exhibit 16F, Hearing Testimony). The record shows as well

that the claimant worked grooming dogs (Exhibit 8D).

[AR 19].

The Court disagrees with Plaintiff’s assertion that it is “unclear whether the ALJ

did not consider any of the requirements of ‘paragraph C’ to be met or only some of the

requirements.” [DE 15 at 10; DE 17 at 3]. The ALJ begins her discussion of paragraph C

with a reference to “claimant’s representative[‘s] argu[ment] that the claimant meets the

C criteria due to her inability to adapt to changes in her environment.” [AR 19]. Adapting

to changes in one’s environment is the C2 criterion. Therefore, it is clear the ALJ found

that was the criterion Plaintiff failed to meet.6

6 To the extent that Plaintiff is suggesting that the ALJ’s decision should be reversed and

remanded due to the ALJ not having made any findings regarding the initial requirement

in paragraph C and the C1 criterion, that argument is without merit as the Court will

simply assume that those other criteria have been satisfied here. See footnote 5, supra.

Plaintiff also argues that the ALJ’s four-sentence analysis of the C2 criteria is

perfunctory and fails to provide an adequate basis for concluding that the ALJ’s step three

finding is supported by substantial evidence. [DE 15 at 11]; see Ribaudo, 458 F.3d at 583

(ALJ’s “two-sentence discussion” of Listing 1.04(A) was “cursory”); Barnett, 381 F.3d at

668 (two-sentence “perfunctory” listing analysis was inadequate). To begin with, the four

sentence discussion reflects the ALJ’s analysis of paragraph C only; the ALJ’s entire

discussion of Listing 12.04 is longer than that. In addition, this case differs from Sprankles

v. Saul, No. 1:18-cv-415-JD, 2020 WL 967897 (N.D. Ind. Feb. 27, 2020), which Plaintiff cites,

wherein the court remanded because the ALJ “made a cursory finding that ‘the evidence

fails to establish the presence of the “paragraph C” criteria of the applicable mental

disorder listing,’ but provided no explanation for how she found that they were not

satisfied.” Id. at *3 (emphasis added). Here, the ALJ did provide an explanation. In

addition, in Sprankles, the court noted that there was “at least some evidence relating to

the second criteria of paragraph C demonstrating [the plaintiff’s] minimal capacity to

adapt to changes in her environment.” Id. at *3 (emphasis added). Here, however, there

is none. The absence of evidence to support the C2 criterion is significant because the

Seventh Circuit has held that, even where an ALJ’s Listing discussion is insufficient, to

obtain remand the claimant must still provide evidence that her impairment satisfies all

of the listing’s criteria. See Sosinski v. Saul, 811 F. App’x. 380, 381 (7th Cir. 2020) (holding

that, even if the ALJ does not “offer more than perfunctory analysis of the listing[,] … we

do not reverse if the claimant fails to show that [she] meets the criteria for that listing”);

Knox v. Astrue, 327 F. App’x 652, 655 (7th Cir. 2009) (“Although an ALJ should provide a

step-three analysis, a claimant first has the burden to present medical findings that match

or equal in severity all the criteria specified by a listing.”); see also Rice v. Barnhart, 384

F.3d 363, 369-70 (7th Cir. 2004).

Plaintiff argues there is evidence here to support a finding that the C2 criterion is

satisfied, and cites to Dr. Nasr’s report, the ALJ’s treatment of which she contends was

“flawed.” [DE 15 at 9]. Plaintiff also asserts that the ALJ improperly relied on evidence of

her daily activities, while failing to address evidence that showed she is only able to

function in a “highly structured environment.” [Id.]. The Court will address each of these

arguments.

1. DR. NASR’S REPORT

The ALJ cited Dr. Nasr’s report in support of her step 3 finding. The report

indicates “no/mild loss” in response to a question asking whether Plaintiff

“[e]xperience[s] marginal adjustment, that is, [has] minimal capacity to adapt to changes

in environment.” [AR 731]. This finding does in fact support the ALJ’s step 3 conclusion

that Plaintiff did not meet the paragraph C2 criterion. The regulation states that “[t]he

criterion in C2 is satisfied when the evidence shows that, despite [the claimant’s]

diminished symptoms and signs, [she] ha[s] achieved only marginal adjustment.

‘Marginal adjustment’ means that [the claimant’s] adaptation to the requirements of daily

life is fragile; that is, [the claimant] ha[s] minimal capacity to adapt to changes in [her]

environment or to demands that are not already part of [her] daily life.” 20 C.F.R. Pt. 404,

Subpart P, App. 1, § 12.00G(2)(c). Dr. Nasr, Plaintiff’s treating psychiatrist, indicated that

Plaintiff did not experience problems with adapting to changes in her environment, and

the ALJ properly relied on that medical opinion in finding that Plaintiff did not satisfy

the C2 criterion.

Plaintiff argues that the ALJ’s step 3 analysis was “faulty” because, in citing to

Dr. Nasr’s report, the ALJ referenced Dr. Nasr’s finding that Plaintiff had no limitations

in “adapting or managing oneself” [AR 19], rather than his finding that Plaintiff had

“no/mild” limitations in her capacity to adapt to changes in the environment [AR 731].

Plaintiff points out that “adapting or managing oneself” is a paragraph B, not C, criterion.

[DE 15 at 9]. If the ALJ commits an error of law, the decision must be reversed. Binion,

108 F.3d at 782. The “adapt or manage oneself” terminology is one of the four areas of

mental functioning evaluated under paragraph B. See 20 C.F.R. Pt. 404, Subpart P, App.

1, § 12.04B(4); see also id. § 12.00E(4) (“Th[e] [adapt or manage oneself] area of mental

functioning [under paragraph B] refers to the abilities to regulate emotions, control

behavior, and maintain well-being in a work setting.”). But it is clear from the ALJ’s

discussion with Plaintiff’s representative at the hearing [AR 39-40]--as well as her

reference to that discussion in her decision (i.e., “the claimant’s representative argued

that the claimant meets the C criteria due to her inability to adapt to changes in her

environment”)-- that the ALJ applied the correct standard under the C2 criterion regarding

adapting to changes in the claimant’s environment.

Nevertheless, the ALJ referenced the wrong portion of Dr. Nasr’s report when she

cited to it in support of her step 3 finding.7 The logical bridge standard is that a reviewing

7 The ALJ did not cite to a specific page in Dr. Nasr’s report, but her reference to

Dr. Nasr’s finding of no limitations in “adapting or managing oneself” appears to be to

court must be able to the trace the ALJ’s reasoning such that the decision can be subject

to meaningful appellate review. Briscoe, 425 F.3d at 351. In the Court’s view, the ALJ’s

error was “akin to a typographical error.” Richard S. v. Comm’r of Soc. Sec., No. 19-cv-1088-

JES-JEH, 2021 WL 165119, at *9 (C.D. Ill. Jan. 19, 2021). In Rafael L. T. v. Kijakazi, No. 20-

cv-3469, 2021 WL 5769525 (N.D. Ill. Dec. 6, 2021), it was “difficult for the Court to imagine

that typing the word ‘occasional’ rather than ‘frequent’ can be attributed to a mere typo.”

Id. at *2 (the ALJ’s insistence that the error was a “typo” found to be “so flimsy it borders

on pretextual”). Here, it is not difficult for the Court to imagine making the mistake of

referencing the portion of Dr. Nasr’s report concerning adapting and managing oneself

rather than the portion that references adapting to changes in the environment.

Moreover, the Court “can still trace the ALJ’s decision, despite her [ ] error.” Richard S.,

2021 WL 165119, at *9.

More importantly, “the result would be the same even if this case was remanded

for the ALJ[ ] to fix the [ ] error,” id., because Dr. Nasr clearly found the same limitation

in the portion of the form that references the C2 criterion. Compare T Rafael, 2021 WL

5769525, at *2 (where “the effect of th[e] typo …. was the difference between a finding of

disability and no disability”). Therefore, the ALJ’s error was harmless. See Richard S., v.

Comm'r of Soc. Sec., No. 119CV01088JESJEH, 2020 WL 8455504, at *9 (C.D. Ill. May 26,

the “Functional Limitation” section of the report where that exact language is found. [AR

732]. Presumably, the “Functional Limitation” section of the report was intended to

address the paragraph B criterion of “adapting or managing oneself” in the work setting,

because the language matches up.

2020) (finding harmless error where “the ALJ’s ‘sloppy cutting and pasting’ resulted in

two contradictory paragraphs regarding the weight she assigned to non-examining State

Agency physicians”), report and recommendation adopted, 2021 WL 165119, at * 9 (affirming

Magistrate Judge’s harmless error finding with regard to “the ALJ’s editing mistake”);

Jones v. Astrue, No. 1:07-cv-0698-DFH-WTL, 2008 WL 1766964, at *10, 13 (S.D. Ind. Apr.

14, 2008) (finding that the ALJ’s erroneous reference to the opinions of “the state agency

medical consultants,” when only one of the state agency consultants was a physician, was

“a minor oversight” and that “sufficient uncontroverted evidence support[ed] the ALJ’s

decision for the court to find that the ALJ’s mistake did not amount to reversible error”);

see also Fanta v. Saul, 848 F. App’x 655, 659 (7th Cir. 2021) (“To the extent the ALJ did

misspeak, any error was harmless.”); cf. Havlin v. Saul, No. 2:19-cv-347-PPS, 2020 WL

4727307, at *3 (N.D. Ind. Aug. 14, 2020) (“Typos and innocently incorrect citations are

regrettable but almost always harmless.”).8

8 In a very recent decision, the Seventh Circuit said that, pursuant to the Chenery principle,

the court “cannot rewrite the record as though the ALJ’s central finding was a typo.” Poole

v. Kijakazi, ___ F.4th ___, 2022 WL 765845, at *3 (7th Cir. Mar. 14, 2022). For the reasons

discussed, however, the record in this case shows that the ALJ’s reference to “adapt and

manage oneself” was merely an oversight, so the Court is not “rewriting the record.” Nor

is Kastner comparable to the situation in this case. There, the Chenery principle was

applied to bar the Commissioner’s argument that the ALJ “meant to cross-reference” two

sources not mentioned by the ALJ, when “[n]othing in the ALJ’s decision indicate[d] that

this relatively obscure cross-reference was the basis for the determination.” 697 F.3d at

647. This case is different because, as indicated, the record demonstrates the ALJ

understood that the paragraph C2 criterion concerns the claimant’s ability to “adapt to

changes in her environment” rather than her ability to “adapt and control oneself,” and

the cited report by Dr. Nasr makes a finding of no limitations in both areas, so the

reliability of the ALJ’s decision is not called into question by her mistake. See McKinzey,

641 F.3d at 892 (explaining that administrative error may be harmless and thus a court

ought not remand a case to the ALJ where it is convinced that the ALJ would reach the

Plaintiff also argues the ALJ “cherry-pick[ed]“ portions of [Dr. Nasr’s] report

while failing to acknowledge that Dr. Nasr “opined that [Plaintiff’s] mental impairments

met the ‘paragraph C’ criteria.” [DE 15 at 9]. Plaintiff is referring to the portion of

Dr. Nasr’s report where he answered “Yes” to the question “[d]oes your patient have a

medically documented impairment(s) that is serious and persistent*?” [AR 732], followed

by a notation spelling out the regulatory definition of that term, including all three

requirements of paragraph C. Even if the Court were to assume that Dr. Nasr understood

the question and intended to answer it in the manner in which he did, his “yes” answer

was inconsistent with his earlier response of “no/mild loss” to the question asking

whether Plaintiff “[e]xperience[s] marginal adjustment, that is, [has] minimal capacity to

adapt to changes in environment.” [AR 731]. Thus, the ALJ would have been justified in

discounting Dr. Nasr’s “yes” answer to the question whether Plaintiff had a medically

documented impairment that was serious and persistent. See Prill v. Kijakazi, 23 F.4th 738,

751 (7th Cir. 2022) (ALJ was entitled to give physician’s opinion less weight where it “was

internally inconsistent”); see also Burmester v. Berryhill, 920 F.3d 507, 512 (7th Cir. 2019)

(“The assessment, consisting of a series of checked boxes, was internally inconsistent.”).

Indeed, Plaintiff’s representative admitted the report was internally inconsistent and

suggested that the form may have been confusing to Dr. Nasr. [AR 39].

same result); Sarchet, 78 F.3d at 309 (“When the decision of that tribunal on matters of fact

is unreliable because of serious mistakes or omissions, the reviewing court must reverse

unless satisfied that no reasonable trier of fact could have come to a different conclusion, in

which event a remand would be pointless.” (emphasis added)).

In any event, the ALJ did not specifically mention the portion of the report relied

on by Plaintiff. Impermissible cherry-picking consists of “highlighting facts that support

a finding of non-disability while ignoring evidence to the contrary.” Martin v. Saul, 950

F.3d 369, 375 (7th Cir. 2020). Dr. Nasr’s “opinion” that Plaintiff satisfied the paragraph C

criteria, however, does not constitute “evidence.” Whether Plaintiff’s mental impairment

met the paragraph C listing is a question for the ALJ to answer. See 20 C.F.R.

§ 404.1520b(c)(3)(iv) (whether or not a claimant’s impairment meets or medically equals

a listing is an “issue[] reserved to the Commissioner”).9 The ALJ therefore was correct to

ignore Dr. Nasr’s opinion on that question. As the regulations explain, a statement by a

medical provider on an issue reserved to the Commissioner will be deemed to be

“inherently neither valuable nor persuasive to the issue of whether [the claimant] [is]

disabled … under the Act.” Id. § 404.1520b(c).10 As a result, the regulations state that the

ALJ is not required to “provide any analysis about how [she] considered” Dr. Nasr’s

9 Cf. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (“[A] claimant is not entitled to

disability benefits simply because a physician finds that the claimant is ‘disabled’ or

‘unable to work.’ Under the Social Security regulations, the Commissioner is charged

with determining the ultimate issue of disability.” (citing 20 C.F.R. § 404.1527(e)).

10 The ALJ cited this regulation in her decision, stating that “[t]he undersigned did not

provide articulation about the evidence that is inherently neither valuable nor persuasive

in accordance with 20 C.F.R. 404.1520b(c).” [AR 24]. Although the ALJ does not identify

“the evidence” she did not consider for the reason given, her citation to 20 C.F.R.

404.1520(c) makes it apparent that she had in mind the portion of Dr. Nasr’s report where

he answers “yes” to the question about whether Plaintiff has a medically documented

impairment that is ”serious and persistent” as defined by the regulation, i.e., that her

impairment meets or medically equals Listing 12.04.

opinion that Plaintiff’s mental impairments met the paragraph C criteria. (id.

§ 404.1520b(c)).11

2. EVIDENCE OF PLAINTIFF’S DAILY ACTIVITIES

The second reason given by the ALJ for why Plaintiff’s impairment did not meet

the listing requirements was her ability to take care of her own personal needs and work

a part-time job. As she argued concerning Dr. Nasr’s report, Plaintiff asserts the ALJ erred

because these facts show Plaintiff’s ability to adapt or manage herself and thus relate to

the paragraph B, not C, criterion. See [DE 15 at 9]. But the C2 criterion also relates to the

claimant’s adaptation abilities, i.e., it asks whether the claimant has adaptation

challenges. i.e., “marginal adjustment,” as in “minimal capacity to adapt to changes” in

her environment (20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.04C(2)), due to her reliance on

“[m]edical treatment, mental health therapy, psychosocial support(s), or a highly

11 Viewed in isolation from its technical regulatory definition, Dr. Nasr’s “yes” response

to the question of whether Plaintiff has “a medically documented impairment that was

serious and persistent” is not inconsistent with his earlier no/mild loss” response to the

question of whether Plaintiff has a “minimal capacity to adapt to changes in her

environment.” It is only when the “serious and persistent” question is read to incorporate

the technical regulatory definition of the term “serious and persistent” that an

inconsistency arises. Further, the technical definition is incorporated in a way that the

person completing the form might overlook it when answering the question. By asking

the same question twice but in different ways, it is not surprising the form elicited

inconsistent answers. It would not be irrational for the ALJ to have chosen to credit

Dr. Nasr’s answer to the more specific question directed solely to the “marginal

adjustment” criterion, rather than his answer to the broader question that encompassed

“marginal adjustment” plus other criteria--criteria that Plaintiff plainly satisfied, such as

a medically documented history of the existence of the disorder over a period of at least

2 years--and thus could have been the reason an inconsistent answer was given. But the

ALJ did not in any event make that choice; she instead appropriately did not consider the

inconsistent answer based on 20 C.F.R. § 404.1520b(c)(3)(iv), as discussed above.

structured setting(s) that is ongoing and that diminishes the symptoms and signs of [the

claimant’s] mental disorder,” id. § 12.04C(1). Accordingly, insofar as the cited evidence

of Plaintiff’s daily activities is concerned, the question for the Court is not whether the

ALJ erroneously applied the paragraph B criterion but whether the ALJ sufficiently

explained the significance of the cited evidence to the paragraph C2 criterion. See, e.g.,

John L. v. Saul, No. 4:19-cv-18, 2020 WL 401887, at *13 (N.D. Ind. Jan. 23, 2020) (“the logical

bridge is missing because the ALJ merely juxtaposed her conclusions with isolated

‘supporting’ facts without providing connecting rationale”).

The Commissioner argues that the significance of the cited evidence regarding

Plaintiff’s daily activities is apparent from the explanation of the C2 criterion found in the

regulation:

We will consider that you have achieved only marginal

adjustment when the evidence shows that changes or

increased demands have led to exacerbation of your

symptoms and signs and to deterioration in your functioning;

for example, you have become unable to function outside of

your home or a more restrictive setting, without substantial

psychosocial supports (see 12.00D). Such deterioration may

have necessitated a significant change in medication or other

treatment. Similarly because of the nature of your mental

disorder, evidence may document episodes of deterioration

that have required you to be hospitalized or absent from

work, making it difficult for you to sustain work activity over

time.

20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.00G(2)(c).

Plaintiff asserts that the Commissioner’s argument is nothing more than a “post-

hoc rationalization” of the ALJ’s decision that is barred under the Chenery doctrine. [DE

17 at 3]. But it does not take any “soaring inferential leap,” Kastner, 697 F.3d at 647, for

the Court to conclude that the ALJ’s reason for citing to the evidence of Plaintiff’s daily

activities and part-time job following the loss of her mother was to demonstrate that

Plaintiff had not shown she had a fragile ability to adapt to the changes in her daily life.12

The ALJ’s decision explicitly rests on a finding that the C2 criterion was not met because

of evidence that Plaintiff could adapt to changes in her environment. The Commissioner’s

argument is not “invent[ing] new findings to rescue an insufficient decision on appeal.”

Poole, __ F.4th at __, 2022 WL 765845, at *3. Although the ALJ did not explain her analysis

beyond citing to the evidence, it seems apparent that the evidence is relevant because it

demonstrates that Plaintiff was able to adjust to the increased stress and depression she

experienced following the tragic and unexpected loss of her mother, which thus shows

she has a greater than marginal ability to adapt. See Richard S., 2021 WL 165119, at *9

(citing evidence of the claimant’s “daily activities,” among other things, in finding

evidence failed to establish a marginal adjustment to the living environment or an

inability to function outside a highly supported living environment). But in any event,

the ALJ’s failure to explain why Plaintiff’s daily activities are inconsistent with the C2

criterion does not alter the fact that Plaintiff has not cited to evidence showing she met

12 The Seventh Circuit has said that “a person’s ability to perform daily activities,

especially if that can be done only with significant limitations, does not necessarily

translate into an ability to work full-time.” Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir.

2013). Similarly, part-time work does not preclude establishing disability. Id. at 637. The

issue here, however, is not whether Plaintiff’s daily activities and part-time work

precluded a finding of disability but whether they precluded a finding of presumptive

disability, and, more specifically, whether they demonstrated an ability to marginally

adjust to changes in the environment.

the C2 criterion. See, e.g., Kautzer v. Kijakazi, No. 20-CV-511-WMC, 2021 WL 4191430, at *6

(W.D. Wis. Sept. 15, 2021).

3. EVIDENCE OF “HIGHLY STRUCTURED ENVIRONMENT”

Aside from the check-mark in Dr. Nasr’s report suggesting an “opinion” regarding

Plaintiff’s satisfaction of the listing criteria (which, as already explained, is not evidence),

Plaintiff also refers to her need for a “highly structured environment” as evidence that

she meets the C2 criterion. Plaintiff’s reference to a “highly structured environment”

invokes the C1 criterion, which requires evidence of “medical treatment, mental health

therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that

diminishes the symptoms and signs of your mental disorder.” 20 C.F.R. Pt. 404, Subpart

P, App. 1, § 12.00C(1). The regulations explain how the ALJ is to “consider psychosocial

supports, structured settings, living arrangements, and treatment” for purposes of

paragraph C1:

Psychosocial supports, structured settings, and living

arrangements, including assistance from your family or

others, may help you by reducing the demands made on you.

In addition, treatment you receive may reduce your

symptoms and signs and possibly improve your functioning,

or may have side effects that limit your functioning.

Therefore, when we evaluate the effects of your mental

disorder and rate the limitation of your areas of mental

functioning, we will consider the kind and extent of supports

you receive, the characteristics of any structured setting in

which you spend your time, and the effects of any treatment.

This evidence may come from reports about your functioning

from you or third parties who are familiar with you, and other

third-party statements or information.

Id. § 12.00D(1).

The Commissioner argues that the ALJ did not find Plaintiff met the C1 criterion.

[DE 16 at 4]. The ALJ’s RFC discussion, however, shows otherwise.13 Specifically, it shows

that the ALJ accepted that Plaintiff had ongoing treatment with her therapist and

psychiatrist that reduced her symptoms and signs and possibly improved her functioning

[AR 21]. Without any discussion to the contrary, the Court presumes the ALJ found the

C1 criterion was met by this evidence. See footnote 6, supra. That the ALJ assumed or

found that Plaintiff satisfied the C1 criterion, however, does not compel the conclusion

that Plaintiff’s mental impairment requires a “highly structured environment” for her to

function. Accordingly, the Court reads the Commissioner’s argument as being that the

ALJ did not find that Plaintiff met the C1 criterion by virtue of a “highly structured

environment” (as opposed to her ongoing therapy). On that point, the Court agrees.

The listing gives examples of the kinds of psychosocial supports beyond therapy

that might be necessary for a claimant who satisfies the C1 criterion, ranging from

“psychosocial rehabilitation day treatment or community support program,” to “‘24/7

wrap-around’ mental health services while living in a group home or transitional

13 See Rice, 384 F.3d at 370 n. 5 (“Because it is proper to read the ALJ’s decision as a whole,

and because it would be a needless formality to have the ALJ repeat substantially similar

factual analyses at both steps three and five . . . we consider the ALJ’s treatment of the

record evidence in support of both his conclusions at steps three and five.”); see also

Zellweger v. Saul, 984 F.3d 1251, 1254 (7th Cir. 2021) (“[N]othing in Chenery prohibits a

reviewing court from reviewing an ALJ’s step-three determination in light of elaboration

and analysis appearing elsewhere in the decision.” (citing Jeske v. Saul, 955 F.3d 583, 590

(7th Cir. 2020)).

housing,” or living “in a hospital or other institution with 24-hour care.” Id. § 12.00D(1).

The examples also include:

You receive help from family members or other people who

monitor your daily activities and help you to function. For

example, family members administer your medications,

remind you to eat, shop for you and pay your bills, or change

their work hours so you are never home alone.

Id. § 12.00D(1)(a).

They also include:

You live alone and do not receive any psychosocial

support(s); however, you have created a highly structured

environment by eliminating all but minimally necessary

contact with the world outside your living space.

Id. § 12.00D(1)(g).

There is no evidence in the record that would suggest Plaintiff meets

§ 12.00D(1)(a). In fact, the ALJ found in her analysis of Plaintiff’s RFC that Plaintiff could

perform chores but it might take longer; that she took care of her own personal needs and

did the normal cleaning; that she took care of her son, including entertaining and feeding

him; that she cooked a couple of days a week; and that she cleaned and did the laundry.

[AR 22-23].14

14 As previously noted, the Court can examine the ALJ’s findings at step 5 to support her

conclusion at step 3 that Plaintiff does not meet the listing requirements. Kastner and the

other case Plaintiff cites, Minnick v. Colvin, 775 F.3d 929, 936 (7th Cir. 2015), are not to the

contrary. “In Minnick, both the step-three discussion and the RFC analysis were

inadequate”; the court “did not suggest that an ALJ’s step-three determination cannot be

supported by a discussion of the medical evidence appearing under the RFC heading.”

Zellweger, 984 F.3d at 1255. And in Kastner, “the Commissioner’s post hoc rationale for

the ALJ’s decision [ ] did not appear anywhere in the ALJ’s opinion,” while that is “hardly

Nor is there evidence to suggest Plaintiff meets § 12.00D(1)(g). First, Plaintiff does

not live alone. Second, the ALJ found that Plaintiff continues to work three days a week

for a groomer; that throughout 2018 and 2019, she was looking for work; that, in her

hearing testimony as well as during her consultative exam, she “appeared to note that

she stopped working due to the death of her mother rather than any of her impairments”;

and that, in a November 2019 therapy session, she indicated that she could not work full-

time along with being a mother and wife, without “relating it to any impairments.” [AR

23]. This evidence demonstrates that Plaintiff has not “created” a “highly structured

environment” in her home “by eliminating all but minimally necessary contact with the

world outside [her] living space.”

Plaintiff quotes her counsel’s arguments during the hearing, wherein he stated that

Dr. Nasr’s report reflected Plaintiff’s abilities when “she’s doing nothing but staying at

home, not working, controlling her environment,” as opposed to “when she’s in a

situation where she has to do things that are outside the ordinary routine, or something

happens that will cause her to go off balance,” which is when her “condition exacerbates.”

[DE 15 at 10]. Of course, Plaintiff’s counsel’s arguments are not evidence.15 Plaintiff cites

no evidence to show that she can function only in a “highly structured environment.” As

the case [here], where the RFC analysis is extensive and supports the ALJ’s determination

that [Plaintiff] is not per se disabled.” Id. (emphasis in original).

15 See Brenda L. v. Saul, 392 F. Supp. 3d 858, 867 & n.5 (N.D. Ill. 2019) (citing Renard v.

Ameriprise Fin. Servs., Inc., 778 F.3d 563, 569 (7th Cir. 2015) (attorney’s statements and

arguments are not evidence); United States v. Adriatico-Fernandez, 498 F. App’x 596, 599

(7th Cir. 2012)).

one district court has said, “if weekly psychological counseling and assistance in filling

out forms and obtaining social services, while living independently, established an

inability to function outside a highly supportive living arrangement, there would be a

dramatic increase in the number of individuals who might qualify for Social Security

benefits.” Gonsalves v. Astrue, Civil No. 09-181-BW, 2010 WL 1935753, at *4 (D. Me. May

10, 2010) (citations omitted) (holding that, even if the ALJ “should have discussed the C

criteria of Listing 12.04 … any failure to do so was harmless, as there is no evidence that

would have allowed him to conclude that those criteria had been met”), report and

recommendation adopted, 2010 WL 2540945 (D. Me. June 16, 2010).16

By way of comparison, in Sprankles, where the court found there was evidence to

support a remand on the C2 listing criterion, the Commissioner argued that the plaintiff’s

problems were the result of situational stressors rather than the plaintiff’s mental illness,

pointing out that the plaintiff’s therapy notes showed that her mental health did not

16 See also Amanda B. v. Comm’r, Soc. Sec. Admin., No. 3:20-cv-00434-BR, 2021 WL 4993944,

at *7–8 (D. Or. Oct. 26, 2021) (ALJ did not err in rejecting medical opinion that plaintiff

had an “inability to function outside a highly supportive living arrangement,” where the

evidence showed she “was able to care for three young children, transport family

members to and from Idaho, and grocery shop,” and “the record indicated [her]

symptoms improved and remained stable when she was on medication and attending

therapy”); Chamberlain v. Berryhill, No. 7:16-cv-337-RJ, 2018 WL 845544, at *9 (E.D.N.C.

Feb. 13, 2018) (plaintiff “has not demonstrated that merely living with a roommate who

does the majority of the housework, cooking, and driving is enough to qualify as a ‘highly

supportive living arrangement’”); McLaughlin v. Colvin, No. 3:13-cv-1136, 2015 WL

1400448, at *3 (M.D. Fla. Mar. 26, 2015) (“Plaintiff’s ability to maintain his hygiene, care

for his dog, prepare meals, and perform household chores … combined with [his] ability

to live alone [ ] preclude Plaintiff from falling under a ‘highly supportive living

arrangement[.]’”).

change significantly after she experienced those situational stressors. 2020 WL 967897, at

*5. The court noted that while the plaintiff’s treatment records “may not have

demonstrated a significant change in her mental capacity or a significant deterioration of

her mental health, every other area of [her] life seemed to demonstrate that she was not

adapting well to the changes in her environment. In an extremely short period of time,

[the plaintiff] got a new boyfriend, lost her job, filed for bankruptcy, committed a felony,

and ultimately went to prison.” Id. The court observed that “[t]his evidence does not seem

to indicate that [the plaintiff] was dealing well with the ‘situational stressors’ or that she

was able to sustain gainful employment while experiencing them.” Id. This evidence was

sufficient, the court held, to require a remand “for a proper articulation of the reasoning

regarding the paragraph C criteria.” Id. at *6; see also Herron v. Comm’r of Soc. Sec., 788

F. Supp. 2d 809, 817 (N.D. Ind. 2011) (evidence that might be indicative of a highly

supportive living arrangement, which the ALJ failed to consider, included “ex-wife’s

testimony that she had to treat [the plaintiff] like a child, that she had to seek help for him

because his capabilities became progressively more limited, and that ‘he didn't ever seem

to know what he was doing’”) (record citations omitted).

Here, the ALJ’s RFC discussion demonstrates no evidence comparable to that in

Sprankles or Herron. Plaintiff has neither called into question the ALJ’s RFC findings

insofar as those findings impact the step 3 analysis, nor shown that she meets the

paragraph C2 criterion by an inability to adapt to changes in her environment.

Accordingly, the Court declines to order a remand on this basis.

B. WHETHER THE ALJ’S HYPOTHETICAL TO THE VOCATIONAL EXPERT

FAILED TO ACCOUNT FOR PLAINTIFF’S MODERATE LIMITATIONS IN

PERSISTING AND MAINTAINING PACE

The ALJ found at step two of the sequential evaluative process that Plaintiff has

moderate limitations in concentration, persistence and pace (CPP). [AR 19]. The ALJ

attempted to account for these moderate limitations by restricting Plaintiff’s RFC to:

(1) simple routine tasks requiring only simple, routine judgments; (2) simple workplace

changes; (3) brief, superficial interaction with the public (meaning no more involved

interaction than answering discrete questions such as location of an item in a store);

(4) occasional interaction with coworkers with no tandem tasks or teamwork; and

(5) “work free of fast-paced or timed piece rate production but can meet end of day

goals.” [AR 19-20].

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)). “As a matter of form, the ALJ need not put the questions

to the VE in specific terms--there is no magic words requirement. As a matter of

substance, however, the ALJ must ensure that the VE is apprised fully of the claimant’s

limitations so that the VE can exclude those jobs that the claimant would be unable to

perform.” Crump v. Saul, 93 F.3d 567, 570 (7th Cir. 2019) (internal quotation marks and

citations omitted); see also Kuykendoll v. Saul, 801 F. App’x 433, 438 (7th Cir. 2020) (“[W]e

will let stand ‘an ALJ’s hypothetical omitting the terms “concentration, persistence, and

pace” when it [is] manifest that the ALJ’s alternative phrasing specifically excluded those

tasks that someone with the claimant’s limitations would be unable to perform.’”)

(quoting O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010)).

Plaintiff does not challenge the ALJ’s RFC and VE hypothetical insofar as her

limitations in concentration are concerned. Instead, Plaintiff argues that the ALJ’s RFC

and hypothetical fail to impose ”any limitations in persistence and pace.” [DE 17 at 5

(emphasis added)]. But the ALJ did attempt to account for Plaintiff’s limitations in

persistence and pace by restricting her RFC to “work free of fast-paced or time piece rate

production but can meet end of day goals.” The issue is whether those restrictions are

sufficient to account for Plaintiff’s persistence and pace limitations, and whether those

terms were defined with enough specificity to provide meaningful limitations.

Citing Varga, 794 F.3d 809, and DeCamp v. Berryhill, 916 F.3d 671 (7th Cir. 2019),

Plaintiff argues that the Seventh Circuit has rejected the term “no fast paced production”

as sufficient to reflect a moderate limitation in CPP. In Varga, 794 F.3d at 815, the court

found it “problematic that the ALJ failed to define ‘fast paced production,’” stating that,

”[w]ithout such a definition, it would have been impossible for the VE to assess whether

a person with [the plaintiff’s] limitations could maintain the pace proposed.” And in

DeCamp, 916 F.3d at 676, the court observed that “there is no basis to suggest that

eliminating jobs with strict production quotas or a fast pace may serve as a proxy for

including limitation on concentration, persistence, and pace.”

But in Martin, 950 F.3d at 374, the court said that Varga was not “root[ed] [ ] in

vagueness.” Instead, the Martin court said, the Varga court “reversed because the ALJ

failed to include the claimant’s significant problems concentrating in the RFC

determination.” Id. Thus, the Varga court listed the seven areas related to CPP in which

the state agency consultant’s assessment of the plaintiff’s mental RFC found moderate

difficulties, 794 F.3d at 814, and then held that the limitations imposed in the ALJ’s RFC,

including “free of fast paced production requirements,” failed to account for all of those

difficulties, id. at 815. Similarly, in DeCamp, the court held that the ALJ’s hypothetical

limiting the plaintiff to “unskilled work” with no “fast paced production line or tandem

tasks” did not account for the plaintiff’s moderate limitations in four areas that were

identified by the state agency doctor (whose opinion the ALJ cited to support her

finding). 916 F.3d at 673, 676.

The Commissioner points out that, unlike in Varga and DeCamp, Plaintiff has not

cited the evidence in the record on which she relies for additional CPP restrictions beyond

those imposed by the ALJ. [DE 16 at 7]. Even if this is so, the Commissioner errs in citing

Jozefyk v. Berryhill, 923 F.3d 492, 498 (7th Cir. 2019), to support a harmless error argument

on that basis. In Crump, the Seventh Circuit made clear that Jozefyk turned on the lack of

evidence, i.e., “the claimant had not testified about any restrictions in his capabilities

related to concentration, persistence, or pace, and the medical evidence did not otherwise

support any such limitations.” 932 F.3d at 571 (citing Jozefyk, 923 F.3d at 498).17 Here,

17 See also Lockett v. Saul, 834 F. App’x 236, 239 (7th Cir. 2020) (“no doctor opined that

[plaintiff] had restrictions beyond those the ALJ found”); Anne M. v. Kijakazi, No. 20 C

6053, 2022 WL 683668, at *7 (N.D. Ill. Mar. 8, 2022) (“Simply put, without any medical

evidence to document any concentration issues, it was entirely appropriate for the ALJ

not to include any such limitations in her RFC finding.”); Doretha H. v. Kijakazi, No. 2:20-

cv-339, 2021 WL 4317304, at *6 (N.D. Ind. Sept. 22, 2021) (“In the present case, there is no

objective medical evidence in the record, nor does [the plaintiff] cite any records

Plaintiff points out generally that she “has been treating consistently with both her

psychiatrist, Dr. Nasr, and her psychologist, Dr. Karen Eggen, since 2006,” and she

“testified consistently with the medical treatment notes how her impairments affect her

ability to maintain concentration, persistence and pace.” [DE 16 at 7]. While perhaps more

detailed citation to the evidence in the record would have been helpful, the Court agrees

with Plaintiff that the record does contain evidence of pace and persistence limitations

that are not accounted for in the RFC or VE hypothetical, and that the ALJ’s failure to

discuss this evidence means there is no logical bridge between the ALJ’s moderate CPP

limitations and the RFC restrictions she imposed related to those limitations. See Kline ex

rel. J.H.-K. v. Colvin, No. 11 C 50376, 2014 WL 69953, at *12 (N.D. Ill. Jan. 9, 2014) (although

the plaintiff’s arguments are undeveloped, the Court cannot ignore significant errors in

the ALJ’s opinion identified by the plaintiff) (citing Firkins v. Astrue, 1:09–CV–00923–JMS,

2010 WL 3037257, *4 (S.D. Ind. Aug. 3, 2010) (stating that even an underdeveloped

argument is not necessarily forfeited when the district court knew and understood the

argument the party intended to make).

The ALJ’s discussion of her moderate CPP limitations finding is as follows:

With regard to concentrating, persisting or maintaining pace,

the claimant has a moderate limitation. The claimant’s

providers found that she could not concentrate or work at a

consistent pace. Yet, they all also indicated that the claimant

had anywhere from no impairment to a moderate impairment

in sustaining concentration and work performance (Exhibits

6F/2-7, 17F). The claimant’s doctor noted as well that she had

supporting her argument, that would suggest that the hypothetical question failed to

account for her moderate limitations in concentration, persistence, or pace.”).

focused attention (Exhibits 3F/1-8, 15F, 20F/2- 24). Dr. Durak

found that the claimant had good concentration (Exhibit 8F).

[AR 19].

The only thing the Court can tell from this discussion is that the ALJ found a

moderate limitation in CPP. The ALJ does not explain whether the moderate finding

applied to all three components of CPP, nor does she tie the moderate finding to any

specific evidence in the record. Instead, the focus of the paragraph seems to be on

negating a CPP limitation greater than a moderate one, based on evidence that

purportedly is inconsistent with the extreme limitation findings in Dr. Eggen’s statement

and Dr. Nasr’s report.18 In short, the ALJ found a moderate CPP limitation but she did

not identify at that time the evidence on which that finding was based.

18 Plaintiff does not challenge the ALJ’s moderate CPP limitation finding, but the Court

notes that, in making this finding, the ALJ does not adequately explain her rejection of

the cited evidence of a more extreme limitation. Dr. Nasr’s observations regarding

Plaintiff’s focused attention during sessions with her is not inconsistent with Plaintiff’s

testimony about her mental impairments. See Crump, 932 F.3d at 571 (ALJ improperly

discounted opinion of the plaintiff’s treating psychiatrist where the psychiatrist “found

only that she could pay attention in the doctor’s office and thus in the context of a

structured, relatively short mental health examination, an altogether different

environment than a full day at a competitive workplace with sustained demands”). And

the ALJ’s finding that the long-term disability form completed by Dr. Eggen on Plaintiff’s

behalf was inconsistent with her opinion of a more extreme limitation is not supportable.

The ALJ observed that Dr. Eggen stated that Plaintiff had no ability to concentrate or meet

productivity expectations while also indicating in checked boxes on the form that Plaintiff

had “0” impairment in her ability to concentrate or sustain work performance. [AR 558

(citing AR 557-561)]. But the ALJ failed to note that Dr. Eggen specifically qualified her

“0” impairment findings with a handwritten comment next to the checked boxes that “All

of these vary with mood, when she is stable there is no impairment.” [AR 558 (emphasis

added)].

Later in her decision, however, the ALJ does provide a specific explanation for her

RFC limitation of work “free of fast-paced or timed piece rate production but can meet

end of day goals”:

As for the opinion evidence regarding the claimant’s mental

limitations, State agency psychological consultants found that

she could handle simple instructions and manage occasional

contact with the public. The undersigned finds the opinions

of the State agency psychological consultants to be

persuasive, as they are supported by and consistent with the

objective evidence. Specifically, the clamant is limited to

simple tasks because of trouble concentrating and a tendency

to be distracted due to ADHD and bipolar disorder. The

claimant requires no production rate pace because of

increased symptoms of bipolar disorder in stressful

situations. The claimant has social limitations because of

difficulty interacting with others due to her bipolar disorder,

which causes mood swings.

[AR 24 (citations omitted)]. Here, the ALJ has done what the Seventh Circuit has

instructed she should do: find “specific deficits in concentration, persistence, or pace and

then connect[ ] them to the assigned limitations.” Kuykendoll, 801 F. App’x at 438. The

problem is that the only deficits the ALJ addresses relate to concentration in stressful

situations, as found by the state agency psychological consultants. The ALJ’s findings

related to concentration in stressful situations do not adequately cover all aspects of

Plaintiff’s moderate limitations in CPP. As the Seventh Circuit explained, “observing that

a person can perform simple and repetitive tasks says nothing about whether the

individual can do so on a sustained basis, including, for example over the course of a

standard eight-hour work shift.” Crump, 932 F.3d at 570. Insofar as persistence and pace

are concerned, the ALJ’s mental limitations are inadequate in at least two respects.

First, the Seventh Circuit has held that elimination of “fast paced production

requirements” does not adequately account for pace limitations. For instance, in Paul v.

Berryhill, 760 F. App’x 460 (7th Cir. 2019), the ALJ posed a hypothetical that limited the

claimant to “work that could be performed at a ‘flexible pace,’ meaning that it is ‘free of

production rate pace where there are no tandem tasks or teamwork or one production

step that’s dependent upon the prior step.’” Id. at 463. The Seventh Circuit found “well-

taken” the claimant’s argument that this limitation did “not adequately address her

difficulties, because it fails to specify the particular pace at which she can work.” Id. at

465. The court explained that the RFC and hypothetical question did “not acknowledge

[the plaintiff’s] moderate limitations with following a schedule and sticking to a given

task. And the ALJ’s reference to ‘flexible pace’ is insufficient to account for [the plaintiff’s]

difficulties maintaining focus and performing activities within a schedule, because the

reference excludes only production-pace employment. Without more, the VE cannot

determine whether someone with [the claimant’s] limitations could maintain the

proposed pace or what the proposed pace even is.” Id. (citation omitted); see also Mischler

v. Berryhill, 766 F. App’x 369, 376 (7th Cir. 2019) (holding that “the ALJ’s failure to define

‘piecework’ or ‘fast-moving assembly line work” (which are not elsewhere defined)

makes it impossible for a VE to assess whether a person with those limitations ‘could

maintain the pace proposed’”) (quoting Varga, 794 F.3d at 815)).19

19 Compare Dudley v. Berryhill, 773 F. App’x 838, 842 (7th Cir. 2019) (upholding ALJ RFC

“excluding work above an average pace, at a variable pace, or in crowded, hectic

environments”); Martin, 950 F.3d at 374 (upholding “pace-related limitations” requiring

“flexibility and work requirements that were goal-oriented,” stating that “[t]he law does

The ALJ noted that Plaintiff testified about how her mental impairments caused

her difficulties in performing a job when she was manic and that she could not handle

the stress or productivity requirements of her former job. But the ALJ did not discuss how

this testimony would affect the pace at which the Plaintiff was able to perform a job.

While the ALJ noted that Plaintiff’s prescribed medications facilitated improvements in

her symptoms, she did not explain how those improved symptoms enabled Plaintiff to

consistently keep pace under normal job conditions when she still suffered hypomanic

and depressive phases throughout the year.

Second, the elimination of “fast-paced production requirements” within the RFC

does not adequately account for persistence limitations. See, e.g., Michael S. L. v. Comm'r

of Soc. Sec., No. 19-cv-1083-RJD, 2020 WL 1955253, at *5 (S.D. Ill. Apr. 23, 2020). Plaintiff’s

testimony related her limitations to a large degree to persistence issues, so it is surprising

that the ALJ never explicitly addressed that issue. Yet, the ALJ apparently found no

persistence issues, because she added a qualifier to the restriction of “no fast-paced

production requirements” that Plaintiff “can meet end day goals.” As far as the Court can

tell, the ALJ included this qualifier to Plaintiff’s RFC limitations without making any

findings or performing any analysis of the evidence connected to it. Instead, the qualifier

appears to have been added as a result of the VE’s testimony.

not require ALJs to use certain words, or to refrain from using others, to describe the pace

at which a claimant is able to work”); Nina Joyce H. v. Saul, No. 18 C 4913, 2020 WL 212771,

at *9 (N.D. Ill. Jan. 14, 2020) (upholding work restricted “to average production pace”

against charge that it was not “a true restriction”).

The ALJ’s original hypothetical to the VE did not have in its description of the

work to be performed any language about an ability to meet end of day goals. The ALJ’s

initial hypothetical incorporated restrictions apparently intended to take into account

limitations in concentration and social interactions only, as described by the state agency

consultants. Specifically, the hypothetical restricted the work to simple and routine tasks,

routine judgments, and simple work-place changes (concentration issues), and it also

limited the work to “no tandem tasks or teamwork where one production step is

dependent no [sic] a prior step” (social interaction limitations). [AR 72]. The VE testified

that the ALJ’s restriction to simple tasks (which was due to Plaintiff’s limitations in

concentration) meant that Plaintiff could not do her past work as a data entry clerk,

because that was a semi-skilled position. [Id.]. But the ALJ testified to other work in the

economy that a hypothetical worker could do with those limitations. The VE added the

comment at the end of this testimony, however, that the jobs he had identified “are

definitely more individualized, goal oriented. They would have end of the day goals but

not hourly quotas for pace.” [AR 73].

Apparently in response to this last statement by the VE, the ALJ immediately

asked a second hypothetical, which added that the work must be “limited to a work

environment free of fast-paced or time piece-rate production work, but the person can

meet end of day goals.” [AR 74]. The VE testified in response to the second hypothetical

that the same jobs would be available. [Id.]. Significantly, the ALJ followed up by asking

the VE about his opinions regarding an employer’s tolerance for “absences in a

competitive work environment” and “time off task beyond regularly scheduled breaks

and meal periods.” [Id.]. The VE testified that a typical tolerance for absences would be

no more than one day per month, and that tolerance for off-task time would be no more

than 10 percent in addition to normal breaks and lunch, with anything more than that

creating a sustainability issue. [AR 74-75]. This discussion was followed by a third

hypothetical posed by Plaintiff’s counsel, who asked the VE about the availability of jobs

if the person had end-of-day goals that could be stretched out over a 24-hour period, “so

the person could do the job maybe for an hour or two, take a break of two hours, do it

again for another couple of hours, take a break,” etc., because of difficulty with the ability

to sustain concentration, i.e. persistence issues. [AR 75-76]. The VE responded that

Plaintiff’s counsel was describing a situation where the worker is able to stretch the same

amount of productivity that would be expected out of 8 hours over a 10 or 12 hour period.

The VE testified that would be considered “accommodated” employment, and there

would not be jobs available with that limitation. [AR 76].

Plaintiff’s counsel stated that his hypothetical reflected the conditions under which

Plaintiff performed her previous job working from home as a medical coder. As the VE’s

testimony revealed, Plaintiff was only able to sustain that employment because her

persistence and pace limitations had been, as the VE testified, “accommodated” by her

employer. In fact, the evidence shows she lost her job when her employer no longer

wanted to accommodate her limitations.20 Despite all this, the ALJ’s written decision

20 Plaintiff’s testimony indicated she lost her employment when she asked to go back to

work part-time. But her employer reported to the Commissioner that Plaintiff did not

made RFC findings that included the qualifier “can meet end of day goals” without any

persistence or pace limitations and without any discussion of the evidence that supported

limitations in the area. The ALJ clearly was aware of these issues and their potential to be

relevant based on the evidence, as she asked the VE about an employer’s tolerance for

“absences in a competitive work environment” and “time off task beyond regularly

scheduled breaks and meal periods.” Knowing that the VE had testified there would not

be any jobs with limitations in this area of the type described, the ALJ did not find any

RFC restrictions in persistence. But she did not explain why, failing to discuss the issue

at all.21 In short, the ALJ failed to explain how the qualifier of “can meet end of days

goals” is supported by the evidence in the record, or how it relates to the ALJ’s finding

of moderate limitations in concentration, persistence and pace. The decision failed to do

the required analysis on the front end, and instead inserted the qualifier of no persistence

limitations at the back end through the VE’s testimony.

consistently meet productivity standards, which suggests that her termination was

related to a larger issue than her merely requesting to work part-time.

21 In this respect, this case is similar to Winsted v. Berryhill, 923 F.3d 472 (7th Cir. 2019).

There, the court reversed on the basis of the ALJ’s failure to reflect the plaintiff’s moderate

limitations in CPP in either the RFC or VE hypothetical, explaining: “The ALJ asked two

additional hypothetical questions to the VE about an individual who would either be off

task 20% of the workday or would have two unscheduled absences per month—

seemingly having in mind 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. Because the ALJ

did not include [the plaintiff’s] difficulties with concentration, persistence, and pace in

the hypothetical he did consider, the decision cannot stand.” Id. (emphasis in original).

Instead of explicitly discussing the “meets end of day goals” qualifier, the ALJ only

cites generally to Dr. Nasr’s report and Plaintiff’s hearing testimony for her pace and

persistence limitations. [AR 24]. In addition, she cites a single treatment note where

Dr. Eggen recounts that Plaintiff noticed the stress of her son’s birthday party affected

her mood by making her depressed. [AR 691 (Ex. 16F/5)]. The Court cannot assess

whether the ALJ properly limited Plaintiff’s restrictions in persistence and pace. While

she cites to Plaintiff’s hearing testimony generally, she does not adequately explain her

basis for discounting the specific parts of Plaintiff’s testimony related to her pace and

persistence limitations.22 And she singles out one treatment note by Dr. Eggen as

demonstrating that Plaintiff’s CPP issues are limited to stressful situations when that

singular note does not fully reflect Plaintiff’s symptoms and causes as shown in the rest

22 It is true that the ALJ found that Plaintiff’s “statements concerning the intensity,

persistence and limiting effects of [her] symptoms are not entirely consistent with the

medical evidence and other evidence in the record.” [AR 22]. But the ALJ is not tasked

with determining whether Plaintiff’s symptoms are fully consistent with the evidence.

Rather, the ALJ is instead instructed to determine whether the allegations concerning the

intensity, persistence, and limiting effects of these symptoms “can reasonably be accepted

as consistent with the objective medical evidence and other evidence.” 20 C.F.R.

§§ 404.1529(a), 404.1529(c)(4), 416.929(a), 416.929(c)(4) (describing how the Social Security

Administration considers symptoms). Requiring that symptoms “can reasonably be

accepted as consistent” with objective evidence is a less rigorous standard than requiring

them to be “fully consistent” with the evidence. See, e.g., Minger v. Berryhill, 307 F. Supp.

3d 865, 871 (N.D. Ill. 2018). Nonetheless, an ALJ’s use of an oft-repeated phrase such as

“not entirely consistent” is only problematic “when the ALJ substitutes it for a proper,

full-bodied explanation of why credibility is lacking.” Hammerslough v. Berryhill, 758

F. App’x 534, 539 (7th Cir. 2019). Here, the ALJ’s explanation does not entail pointing to

evidence the ALJ relied upon in rejecting Plaintiff’s testimony concerning her limitations

in persistence and pace, as she only cites the state agency consultants and, as discussed

herein, those reports also do not address whether Plaintiff had any persistence and pace

limitations.

of Dr. Eggen’s therapy notes. Other therapy notes the ALJ did not cite would support

greater limitations than the stress-related limitation the ALJ imposed. “[A]n ALJ need not

mention every piece of evidence, so long [she] builds a logical bridge from the evidence

to [her] conclusion.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). Here there is no

logical bridge because the ALJ cited no evidence to support her RFC finding of “can meet

end day goals,” and, further, the record contains evidence that is inconsistent with that

finding.

The Court acknowledges that the ALJ found that the extreme limitations in

Plaintiff’s ability to complete work found in both Dr. Eggen’s statement and Dr. Nasr’s

report were not persuasive. But rejecting Dr. Eggen’s extreme limitation of an inability to

complete tasks for more than ten minutes does not negate Dr. Eggen’s statement that the

only reason Plaintiff was able to successfully maintain her previous job as a medical coder

was that she “could start and stop her workday as needed, as long as she completed her

hours.” [AR 556]. The ALJ does not specifically discuss this portion of Dr. Eggen’s report.

Moreover, the reason the ALJ gave for discounting Dr. Nasr’s extreme limitation in

Plaintiff’s ability to perform at a consistent pace without unreasonable number and

length of rest periods was that it was inconsistent with his finding that she had only a

moderate loss in the area of “ability to concentrate, persist or maintain pace.” This

inconsistency finding does not negate Dr. Nasr’s opinion regarding the moderate

limitation, however, which is at issue here.23

23 The ALJ also noted the evidence of Plaintiff’s focused attention during mental status

exams, and Plaintiff’s admission that she saw improvement in her symptoms when

An additional issue with the ALJ’s analysis of the opinions of mental health

professionals is cherry picking evidence that supports her conclusion yet ignoring a

contrary line of evidence. The ALJ noted that Dr. Eggen opined in 2017 that the Plaintiff

had no ability to concentrate or meet productivity expectations before noting that she had

no impairment in her ability to concentrate or sustain work performance. [AR 24]. The

ALJ also made note of the fact that later exams showed lesser symptoms, ultimately

finding that opinions were not consistent. To be sure some, but not all, of the

inconsistencies were self-contained on forms, yet the ALJ also placed special emphasis on

the timeline of varying opinions prior to calling those opinions into doubt based upon

the fact they were changing, or inconsistent. This is problematic because Plaintiff

indicated that her symptoms worsened from stressful situations, such as work or

traveling, and the Plaintiff stopped working prior to some of these exams. [AR 231-238;

AR 253-260]. And, the nature of Plaintiff’s mental health issues are such that symptoms

arose sporadically and were of varying duration. [AR 55-56; AR 63-64]. The ALJ did not

address these reasons for changing symptoms at all or consider whether such issues were

the source of changing opinions. This comes at the very least uncomfortably close to the

impermissible “cherry-picking” the evidence. See Plessinger v. Berryhill, 900 F.3d 909, 915

(7th Cir. 2018) (ALJ “misconstrued (or worse, ‘cherry-picked’)” statements from medical

opinion relied upon: “ALJs are not permitted to cherry-pick evidence from the record to

taking Latuda [AR 24], neither of which negate the identified moderate CPP limitations

in Dr. Eggen’s statement and Dr. Nasr’s report, which the ALJ in fact adopted.

support their conclusions, without engaging with the evidence that weighs against their

findings”).

As the Seventh Circuit stated in Crump, 932 F.3d at 571, the Court sees “the

discounting of [Plaintiff’s mental health professionals’] opinion[s] in keeping with and

indeed compounding the ALJ’s error” in failing to explain and/or account for

moderation limitations Plaintiff had in persistence and pace. This is particularly so

insofar as the ALJ failed to discuss or discredit with citation to evidence the opinions of

those treating mental health professionals regarding the amount of time Plaintiff would

be off-task. See, e.g., Michael Z., 2019 WL 13094919, at *3 (“The question is not whether the

ALJ identified this evidence in his decision, but whether he explained ‘why that evidence

was rejected.’” (quoting Moore, 743 F.3d at 1123)).

A final word is in order regarding the ALJ”s finding that the state psychological

consultants’ reports were persuasive, and her reliance on the narrative portion of those

reports for her CPP limitations. The Seventh Circuit has said that an ALJ can rely on the

agency doctors’ narrative conclusions to translate their residual-functional-capacity

recommendations. See, e.g., Urbanek v. Saul, 796 F. App’x 910, 915 (7th Cir. 2019). But here,

the state agency consultants’ narrative did not speak to the issues of persistence and pace.

Compare Raydene E. v. Kijakazi, No. 19 C 3125, 2021 WL 5280949, at *3 (N.D. Ill. Nov. 12,

2021) (where state reviewing physicians opined that “[w]hile ongoing symptoms may

reduce efficiency and stress tolerance, this is not to the degree as to prevent ability to

engage in work activity within an average schedule and work week the majority of the

time”). The Seventh Circuit has said that, even though “an ALJ may rely on a narrative

explanation, the ALJ still must adequately account for limitations identified elsewhere in

the record, including specific questions raised in check-box sections of standardized

forms.” DeCamp, 916 F.3d at 676. Dr. Nasr’s form was not prepared until after the state

agency consultants’ reports, so the state agency consultants’ narratives did not take his

checked-box findings into account. Moreover, the state agency consultants noted that

Plaintiff’s employer had reported that Plaintiff “[d]id not consistently meet productivity

standards.” [AR 92 (emphasis added)]. The Court finds it difficult to reconcile the ALJ’s

qualifier of “can meet end of day goals” with Plaintiff’s former employer’s report that

Plaintiff consistently failed to meet productivity standards.

For all of the reasons explained above, the ALJ’s RFC analysis did not adequately

address Plaintiff’s difficulties with persistence or pace so as to provide a logical bridge

for the restrictions she placed in that area in her hypothetical to the VE. This is especially

true as to the qualifier to the CPP limitations in the RFC finding that Plaintiff “can meet

end day goals.” Although the ALJ did not define what she meant by the qualifier, the

VE’s explanation in response to Plaintiff’s counsel’s hypothetical suggests that an ability

to meet end of day goals means an ability to consistently keep pace and persist

throughout an 8-hour workday so that end of day goals are met in that time-period. The

ALJ did not explain if that is the meaning she also had in mind when she added the

qualifier to Plaintiff’s RFC. Nor did she provide a logical bridge based on the evidence to

support the qualifier if that is what she had in mind. In Pavlicek v. Saul, 994 F.3d 777 (7th

Cir. 2021), the Seventh Circuit noted that social security regulations define a moderate

limitation “to mean that functioning in that area is ‘fair.’” Id. at 783 (citing 20 C.F.R. Pt.

404, Subpt. P, App. 1). The Seventh Circuit then said that “a ‘moderate’ limitation in

performing at a consistent pace seems consistent with the ability to perform simple,

repetitive tasks at a consistent pace.” Id. (emphasis added). Here, however, the ALJ did

not make any finding that Plaintiff could perform at a consistent pace, or that she could

do so consistently, i.e., she had normal persistence. In Pavlicek, the court held that the ALJ

had reasonably relied on the state agency consultants’ narrative RFC in the consistent

pace finding. 994 F.3d at 783. Here, however, as discussed, the state agency consultants

only addressed concentration and stress-related limitations. They did not discuss pace or

persistence limitations from Plaintiff’s bipolar symptoms, even though they

acknowledged Plaintiff’s employer’s report that she consistently failed to meet

productivity standards. If there is no evidence to support a consistent pace finding (and

the ALJ made no finding there was), then the qualifier “can meet end of day goals” would

not be appropriate. In fact, the qualifier appears to be inconsistent with evidence in the

record that the ALJ failed to discuss in any meaningful way.24 Accordingly, the ALJ’s

decision denying benefits must be reversed and remanded.

24 See LaValley v. Kijakazi, No. 20-CV-1432-SCD, 2021 WL 5200238, at *6 (E.D. Wis. Nov. 8,

2021) (distinguishing Pavlicek because “the ALJ here did not reasonably rely on the

consultants’ narrative RFC; rather, he failed to address several key limitations found in

that narrative or explain why they were not included in the RFC”; also noting that “the

definition of moderate in the regulations pertains to the consultants’ ratings of the

paragraph B criteria,” not “to the degree of limitation in the actual RFC” (citing 20 C.F.R.

Pt. 404, Subpt. P, App. 1, § 12.00(F)(2)(c), and SSA Programs Operations Manual System,

DI 24510.065(B)(1)(c)).

CONCLUSION

Based on the foregoing, the Commissioner’s final decision is REVERSED AND

REMANDED for further proceedings. The Court DIRECTS the Clerk of Court to ENTER

JUDGMENT in favor of Plaintiff and against Defendant.

So ORDERED this 31st day of March, 2022.

s/ Joshua P. Kolar

MAGISTRATE JUDGE JOSHUA P. KOLAR

UNITED STATES DISTRICT COURT