# DAVIS v. KIJAKAZI

> District Court, S.D. Indiana · August 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10169338

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** August 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

GLENDA M. D.1, )
)
Plaintiff, )
)
v. ) No. 1:20-cv-03313-DLP-JPH
)
KILOLO KIJAKAZI, )
)
Defendant. )

ORDER
Plaintiff Glenda M. D. requests judicial review of the denial by the
Commissioner of the Social Security Administration ("Commissioner") of her
application for Social Security Disability Insurance Benefits ("DIB") under Title II
and Supplemental Security Income ("SSI") under Title XVI of the Social Security
Act. See 42 U.S.C. §§ 405(g), 423(d). For the reasons set forth below, the Court
hereby REVERSES the ALJ’s decision denying the Plaintiff benefits and
REMANDS this matter for further consideration.
I. PROCEDURAL HISTORY

On August 20, 2018, Glenda filed her applications for Title II DIB and Title
XVI SSI benefits. (Dkt. 13-2 at 16, R. 15). Glenda alleged disability resulting from a
shoulder and arm injury, depression, sciatica, a herniated disc, and short-term

1 In an effort to protect the privacy interests of claimants for Social Security benefits, the Southern
District of Indiana has adopted the recommendations put forth by the Court Administration and
Case Management Committee of the Administrative Office of the United States Courts regarding the
practice of using only the first name and last initial of any non-government parties in Social Security
opinions. The Undersigned has elected to implement that practice in this Order.
memory loss. (Dkt. 13-6 at 15, R. 218). The Social Security Administration ("SSA")
denied Glenda's claims initially on January 11, 2019, (Dkt. 13-3 at 26-27, R. 75-76),
and on reconsideration on April 10, 2019, (Dkt. 13-3 at 52-53, R. 101-102. On April

25, 2019, Glenda filed a written request for a hearing, which was granted. (Dkt. 13-
4 at 28, R. 129).
On June 3, 2020, Administrative Law Judge ("ALJ") David Read conducted a
hearing, where Glenda and vocational expert Heather Benton appeared by phone.
(Dkt. 16-2 at 3, R. 544). On June 25, 2020, ALJ Read issued an unfavorable decision
finding that Glenda was not disabled. (Dkt. 13-2 at 16-27, R. 15-26). Glenda

appealed the ALJ's decision and, on November 12, 2020, the Appeals Council denied
Glenda's request for review, making the ALJ's decision final. (Dkt. 13-2 at 2-4, R. 1-
3). Glenda now seeks judicial review of the ALJ's decision denying benefits
pursuant to 42 U.S.C. § 1383(c)(3).
II. STANDARD OF REVIEW
Under the Act, a claimant may be entitled to DIB and SSI only after she
establishes that she is disabled. To prove disability, a claimant must show she is

unable to "engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than twelve months." 42 U.S.C. § 423(d)(1)(A). To meet this definition, a
claimant's impairments must be of such severity that she is not able to perform the
work she previously engaged in and, based on her age, education, and work
experience, she cannot engage in any other kind of substantial gainful work that
exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A).
The SSA has implemented these statutory standards by, in part, prescribing

a five-step sequential evaluation process for determining disability. 20 C.F.R. §
404.1520(a). The ALJ must consider whether:
(1) the claimant is presently [un]employed; (2) the claimant has a
severe impairment or combination of impairments; (3) the
claimant's impairment meets or equals any impairment listed in
the regulations as being so severe as to preclude substantial
gainful activity; (4) the claimant's residual functional capacity
leaves her unable to perform her past relevant work; and
(5) the claimant is unable to perform any other work existing in
significant numbers in the national economy.

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citation
omitted). An affirmative answer to each step leads either to the next step or, at
steps three and five, to a finding that the claimant is disabled. 20 C.F.R. § 404.1520;
Briscoe, 425 F.3d at 352. If a claimant satisfies steps one and two, but not three,
then she must satisfy step four. Once step four is satisfied, the burden shifts to the
SSA to establish that the claimant is capable of performing work in the national
economy. Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995); see also 20 C.F.R.
§ 404.1520 (a negative answer at any point, other than step three, terminates the
inquiry and leads to a determination that the claimant is not disabled).
After step three, but before step four, the ALJ must determine a claimant's
residual functional capacity ("RFC") by evaluating "all limitations that arise from
medically determinable impairments, even those that are not severe." Villano v.
Astrue, 556 F.3d 558, 563 (7th Cir. 2009). The RFC is an assessment of what a
claimant can do despite her limitations. Young v. Barnhart, 362 F.3d 995, 1000-01
(7th Cir. 2004). In making this assessment, the ALJ must consider all the relevant
evidence in the record. Id. at 1001. The ALJ uses the RFC at step four to determine

whether the claimant can perform ers own past relevant work and if not, at step
five to determine whether the claimant can perform other work in the national
economy. See 20 C.F.R. § 404.1520(a)(4)(iv)-(v).
The claimant bears the burden of proof through step four. Briscoe, 425 F.3d
at 352. If the first four steps are met, the burden shifts to the Commissioner at step
five. Id. The Commissioner must then establish that the claimant – in light of her

age, education, job experience, and residual functional capacity to work – is capable
of performing other work and that such work exists in the national economy. 42
U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f).
Judicial review of the Commissioner's denial of benefits is to determine
whether it was supported by substantial evidence or is the result of an error of law.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). This review is limited to
determining whether the ALJ's decision adequately discusses the issues and is

based on substantial evidence. Substantial evidence "means – and means only –
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Rice v. Barnhart, 384
F.3d 363, 369 (7th Cir. 2004). The standard demands more than a scintilla of
evidentiary support but does not demand a preponderance of the evidence. Wood v.
Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). Thus, the issue before the Court is
not whether Glenda is disabled, but, rather, whether the ALJ's findings were
supported by substantial evidence. Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995).
Under this administrative law substantial evidence standard, the Court

reviews the ALJ's decision to determine if there is a logical and accurate bridge
between the evidence and the conclusion. Roddy v. Astrue, 705 F.3d 631, 636 (7th
Cir. 2013) (citing Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). In this
substantial evidence determination, the Court must consider the entire
administrative record but not "reweigh evidence, resolve conflicts, decide questions
of credibility, or substitute its own judgment for that of the Commissioner." Clifford

v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nevertheless, the Court must conduct a
critical review of the evidence before affirming the Commissioner's decision, and the
decision cannot stand if it lacks evidentiary support or an adequate discussion of
the issues. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); see
also Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
When an ALJ denies benefits, he must build an "accurate and logical bridge
from the evidence to his conclusion," Clifford, 227 F.3d at 872, articulating a

minimal, but legitimate, justification for the decision to accept or reject specific
evidence of a disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). The
ALJ need not address every piece of evidence in his decision, but he cannot ignore a
line of evidence that undermines the conclusions he made, and he must trace the
path of his reasoning and connect the evidence to his findings and conclusions.
Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012); Clifford, 227 F.3d at 872.
III. BACKGROUND

A. Factual Background
Glenda was fifty-nine years old as of her July 1, 2018 alleged onset date.
(Dkt. 13-6 at 22, R. 225). She has a high school diploma. (Dkt. 13-6 at 16, R. 219).
She has relevant past work history as a supervisor in a contract-sheltered workshop
and a home attendant. (Dkt. 13-2 at 27, R. 26).
B. ALJ Decision
In determining whether Glenda qualified for benefits under the Act, the ALJ
employed the five-step sequential evaluation process set forth in 20 C.F.R.

§ 404.1520(a) and concluded that Glenda was not disabled. (Dkt. 13-2 at 16-26, R.
15-25). At Step One, the ALJ found that Glenda had not engaged in substantial
gainful activity since her alleged onset date of July 1, 2018. (Id. at 18, R. 17).
At Step Two, the ALJ found that Glenda suffered from the following severe
impairments: degenerative joint disease of the right shoulder, status post fracture
with open reduction and internal fixation (ORIF) and carpal tunnel syndrome,
right. (Id.). The ALJ also found that Glenda had non-severe impairments of

degenerative disc disease of the lumbar spine, depression, and anxiety. (Id. at 19-20,
R. 18-19). When considering the "paragraph B" criteria, the ALJ found that Glenda
had no limitations with interacting with others, but mild limitations with
understanding, remembering, or applying information, managing oneself, and
maintaining concentration, persistence, or pace. (Id. at 21, R. 20).
At Step Three, the ALJ found that Glenda's impairments did not meet or
medically equal the severity of one of the listed impairments in the Listings,
specifically considering Listing 1.02 for major dysfunction of a joint and Listing

11.00 for carpal tunnel syndrome. (Id. at 19-20, R. 19-20).
After Step Three but before Step Four, the ALJ found that Glenda had the
residual functional capacity ("RFC") to perform light work with the following
exertional limitations: lifting, carrying, pushing, and pulling 20 pounds occasionally
and 10 pounds frequently; sitting for 6 hours, standing for 6 hours, and walking for
6 hours; no more than occasional reaching overhead with the right upper extremity

and frequent reaching in all other directions with the right upper extremity;
frequently handle and finger with the right hand; no more than occasional climbing
of ladders, ropes, or scaffolds; and no more than occasional work at unprotected
heights. (Dkt. 13-2 at 22-23, R. 21-22).
At Step Four, the ALJ concluded that Glenda is capable of performing her
past relevant work as a supervisor at a contract sheltered workshop. (Dkt. 13-2 at
27, R. 26). The ALJ thus concluded that Glenda was not disabled. (Id.).

IV. ANALYSIS

Glenda challenges the ALJ's decision on two grounds. First, Glenda contends
that the ALJ erred by concluding that she could return to her work as a supervisor
at a contract sheltered workshop because that role was performed as part of a
composite job, which requires a different Step Four analysis. (Dkt. 18 at 9-15; Dkt.
21 at 1-8). Second, Glenda argues that the ALJ erred in finding she had mild
difficulties in his ability to sustain concentration, persistence, or pace, while failing
to include any corresponding limitations in the RFC evaluation. (Dkt. 18 at 15-18;
Dkt. 21 at 8-12). The Court will consider these arguments in turn.

A. Composite Job

First, Glenda argues that the ALJ erred by not considering her past relevant
work as a composite job, which led to an inaccurate Step Four conclusion that she
could return to her past work as a supervisor. (Dkt. 18 at 9-15; Dkt. 21 at 1-8). The
Commissioner maintains that Plaintiff did not meet her burden of demonstrating
that her past relevant work was a composite job and that the issue is effectively
waived because neither Plaintiff nor her attorney objected to the vocational expert's
classification of her work history at the hearing. (Dkt. 19 at 11-15).
A claimant is not disabled if she can do her past relevant work either in the
manner she performed it before the impairment or as it is generally performed in
the national economy. See Ray v. Berryhill, 915 F.3d 486, 491 (7th Cir. 2019); see
also 20 C.F.R. § 404.1560(b)(2). "In determining whether a claimant can perform his
or her past relevant work, the ALJ may be able to rely on a generic job description

in the DOT. There are instances, however, in which the claimant's job has no
precise counterpart in the DOT." Vickie H. v. Berryhill, No. 1:18-cv-00351-SEB-
DLP, 2019 WL 1370700, at *3 (S.D. Ind. Mar. 1, 2019), report and recommendation
adopted sub nom. Vickie L. H. v. Berryhill, No. 1:18-cv-00351-SEB-DLP, 2019 WL
1367537 (S.D. Ind. Mar. 26, 2019). "Vocational Experts often supplement the
information provided in the DOT by providing an impartial assessment of the types
of occupations in which claimants can work and the availability of positions in such
occupations. The decision whether to employ a VE at a hearing is a matter
entrusted to the discretion of ALJs, but once an ALJ decides to rely on a VE's

testimony, he must make sure that the testimony comports with the rules set forth
in the Commissioner's Social Security Rulings." Weatherbee v. Astrue, 649 F.3d 565,
569 (7th Cir. 2011) (internal citations omitted).
As the Seventh Circuit has explained, Social Security Ruling 00-4p requires
an ALJ to ask whether a VE's evidence "conflicts with information provided in the
DOT" before relying on that evidence to support a determination of nondisability.

Overman v. Astrue, 546 F.3d 456, 462–63 (7th Cir. 2008) (citing SSR 00–4p at 4). If
a VE's testimony appears to conflict with the DOT, then the ALJ is required to
obtain "a reasonable explanation for the apparent conflict." See SSR 00-4p;
Overman, 546 at 463 (citing Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir.
2006)). The ALJ must also "explain in the determination or decision how he or she
resolved the conflict." Jerry Z. v. Saul, No. 1:19-cv-3022-MJD-JPH, 2020 WL
4034930, at *4 (S.D. Ind. July 16, 2020) (citing SSR 00-4p).

Generally, when a claimant fails to object to a vocational expert's testimony
at the hearing, the ALJ is entitled to rely on that unchallenged testimony when
determining whether a claimant can perform her past work. Dwight W. B. v.
Kijakazi, No. 1:20-cv-02048-JPH-DML, 2022 WL 985733, at *5 (S.D. Ind. Mar. 31,
2022) (citing Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)). Because SSR
00–4p, however, imposes an affirmative duty on the ALJ to inquire into and resolve
apparent conflicts, a claimant's failure to raise a possible violation of SSR 00–4p at
the disability hearing does not forfeit the right to argue later that a violation
occurred, as long as "the conflicts were obvious enough that the ALJ" should have

noticed and resolved the conflict. Overman, 546 F.3d at 463 (7th Cir. 2008); see also
Ray, 915 at 492 (7th Cir. 2019) (if the VE's testimony appears to conflict with the
Dictionary of Occupational Titles, an ALJ must obtain a reasonable explanation for
the apparent conflict, even if the claimant does not object at the hearing).
In this case, Glenda argues that the ALJ erred by not considering whether
her past relevant work as a supervisor constituted a composite job, which resulted

from the ALJ failing to resolve the apparent conflict between the DOT definition of
her supervisor position and the duties Glenda claimed she performed. For
determining whether a claimant's past relevant work constitutes a composite job,
Social Security Ruling 82-61 advises that "composite jobs have significant elements
of two or more occupations and, as such, have no counterpart in the DOT. Such
situations will be evaluated according to the particular facts of each individual
case." See Wiggins v. Colvin, No. 12-CV-938417, 2015 WL 2398478, at *5 (N.D. Ill.

May 18, 2015) ("Because by definition a composite job will have no DOT
counterpart, the ALJ may rely on evidence provided by a vocational expert to
explain the nature of the claimant’s past relevant work.").
The agency’s Program Operations Manual ("POMS") explains:
Composite jobs have significant elements of two or more
occupations and as such, have no counterpart in the DOT . . .
. The claimant’s PRW [past relevant work] may be a composite
job if it takes multiple DOT occupations to locate the main
duties of the PRW as described by the claimant . . . . When
comparing the claimant’s RFC to a composite job as the
claimant performed it, find the claimant capable of performing
the composite job only if he or she can perform all parts of the
job. . . . . A composite job does not have a DOT counterpart, so
do not evaluate it at the part of step 4 considering work 'as
generally performed in the national economy.'

Dorrie L. B. v. Comm'r of Soc. Sec., No. 18-CV-0007-CJP, 2018 WL 6046148, at *4
(S.D. Ill. Nov. 19, 2018) (quoting POMS DI 25005.020,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020, visited on November 19,
2018). When confronted with a situation where the record does not clearly
demonstrate that a claimant's past work was a composite job, courts in this Circuit
have examined several factors in reviewing the ALJ's determination, including (1)
whether a claimant was represented by counsel during the hearing before the ALJ;
(2) whether a claimant raised the issue of a composite job at the hearing; and (3)
whether a claimant characterized her past relevant work as a composite job in her
testimony before the ALJ. See Sonja B. v. Kijakazi, No. 3:20-cv-00284-RLY-MPB,
2022 WL 2496127, at *5 (S.D. Ind. June 21, 2022), report and recommendation
adopted, No. 3:20-cv-00284-RLY-MPB, 2022 WL 2479233 (S.D. Ind. July 6, 2022)
(collecting cases).
First, Glenda was represented by counsel at her hearing in front of the ALJ.
Second, during that hearing, neither Glenda nor her counsel officially raised the
issue of whether her past relevant work constituted a composite job. Third,
however, consistently throughout her written submission of and testimony at the
hearing regarding her job duties, Glenda provided a description of her past work
that should have alerted both the vocational expert and the ALJ that the position
may be composite and that a discrepancy may have existed between the DOT
definition and the position actually performed by Glenda.

Here, the vocational expert and ALJ classified Plaintiff's past relevant work
as a supervisor of a contract-sheltered workshop (187.134-010) and a home
attendant (354.377-014). Plaintiff's argument centers on the position of supervisor
of a contract-sheltered workshop, which the Dictionary of Occupational Titles
("DOT") describes as follows:
Supervises and coordinates activities of handicapped
individuals in sheltered workshop to train and improve
vocational skills for gainful employment through productive
work: Assigns individual to specific tasks, such as cleaning,
sorting, assembling, repairing, or hand packing products or
components. Demonstrates job duties to handicapped individual
and observes worker performing tasks to ensure understanding
of job duties. Monitors work performance at each individual's
work station to ensure compliance with procedures and safety
regulations and to note behavior deviations. Examines
workpiece visually to verify adherence to specifications. Confers
with individuals to explain or to demonstrate task again to
resolve work related difficulties. Reassigns individual to simpler
tasks when worker cannot perform assigned tasks, or to tasks
containing higher degrees of complexity as level of competence
is reached. Performs other duties described under
SUPERVISOR (any industry) Master Title.

187.134-010 Supervisor, Contract-sheltered Workshop, 1991 WL 671360. The job
requires no climbing, balancing, stooping, kneeling, crouching, or crawling. Id.
Plaintiff provided a written description to the SSA and testimony at the
hearing of the duties required of her supervisor position. (See Dkt. 13-6 at 12, R.
215; Dkt. 13-2 at 40, 47-48, R. 39, 46-47). In her written description, Glenda
indicated she "supervised 16 disabled adults in workshop setting providing sub-
contract work, job set up training, packaging, counting, final inspecting, stacking
skids, moving skids, shrink wrapping. Documentation of each client payroll, daily

activities, behavior logs, medications, objective goals. Attending daily meetings and
in-service trainings." (Dkt. 13-6 at 12, R. 215). She further noted that she spent one
half hour per day each of stooping, kneeling, and crouching. (Id.). Glenda also
indicated that she frequently lifted 25 pounds, lifted up to approximately 50 pounds,
and had to stack skids of finished product weighing 40 pounds or more for
approximately 2 hours of the workday. (Id.). At the hearing, the ALJ asked Glenda

about the heaviest items she would have to personally lift or carry, and she testified
that she would have to lift 50-60 pound boxes or transfer her clients from a chair to
a toilet. (Dkt. 13-2 at 40, R. 39). Glenda further testified that performing CPR is a
requirement to work at either of her past relevant jobs, and that she is unable to
perform CPR currently due to her arm limitations. (Id. at 47-48, R. 46-47).
The DOT lists the main job duties of the contract-sheltered workshop
supervisor as supervising and coordinating activities; assigning tasks;

demonstrating job duties; monitoring work performance; examining workpieces; and
reassigning tasks. What the Plaintiff has described in her written submission and
testimony is a far more physical job, one that requires her to spend almost one-third
of her workday on lifting and carrying 50-60 pounds of finished products, while
stooping, kneeling, and crouching, and assisting her clients to the toilet – none of
these activities are contemplated in the DOT definition of the supervisor role. (Dkt.
13-6 at 12, R. 215; Dkt. 13-2 at 40, 47-48, R. 39, 46-47).
Although it is correct that Plaintiff and her counsel failed to object to the

vocational expert's testimony at the hearing, Glenda presented evidence that her
supervisor position may have been a composite job, thereby creating an apparent
discrepancy between the vocational expert's testimony and the DOT. Thus, the ALJ
was required to explain how this conflict was resolved before concluding that
Glenda could perform her past relevant work. See Jerry Z., 2020 WL 4034930, at *4
(evidence indicated the claimant's job may have been composite and the ALJ erred

by not addressing this issue in his decision); Kimberly L.D. v. Commissioner of
Social Security, No. 18-cv-890-CJP, 2019 WL 247411 (S.D. Ill. Jan. 17, 2019);
Barnett v. Colvin, No. 13-cv-781-CJP, 2014 WL 7450077, at *6-7 (S.D. Ill. Dec. 30,
2014); Michalski v. Berryhill, No. 16-C-1590, 2017 WL 4081905, at *5 (E.D. Wis.
Sept. 14, 2017).
For example, in Cabaniss v. Colvin, No. 13 CV 4244, 2014 WL 7450435 (N.D.
Ill. Dec. 30, 2014), there was no explicit discussion during the hearing or in the

ALJ’s decision about whether the claimant’s job was composite. At the hearing,
however, the claimant provided a description of his job duties that was sufficient to
alert the ALJ as to the possibility of it being a composite job. Id at *12. Therefore,
the court found that the ALJ’s opinion was not supported by substantial evidence
and remanded the case with instructions for the ALJ to consider both parts of the
claimant’s composite job. Id. Similarly, here, Glenda provided both written and oral
descriptions of her job duties that should have alerted the ALJ to the possibility of
her supervisor position being a composite job. Glenda's duties seem to have
extended beyond the realm of supervising and managing, and a significant portion

of her duties encompassed physical activities more akin to other jobs. Plaintiff
contends that her position as a supervisor was a composite of the supervisor job,
along with a laborer and home attendant, and has presented evidence that would
support such a conclusion. The Court's role is not to affirmatively decide whether
the supervisor role was composite, but instead to determine whether the Plaintiff
has presented sufficient evidence that should have alerted the ALJ to consider

whether the job was composite. See Sonja B., 2022 WL 2479233 (citing Moore v.
Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014)). Glenda has met that burden here and
this matter must be remanded for the ALJ to consider fully whether her past work
as a supervisor constituted a composite job.
B. Mental RFC

Glenda also argues that the ALJ failed to account for her mild limitations in
understanding, remembering, or applying information; adapting or managing
oneself; and maintaining concentration, persistence, or pace in the RFC assessment.
(Dkt. 18 at 15-18; Dkt. 21 at 8-12). The ALJ assessed non-severe impairments of
depression and anxiety, but assigned no non-exertional functional limitations in the
RFC; thus, Plaintiff contends, the ALJ failed to account for all of her impairments
or explain why no RFC limitations were warranted. (Id.). Glenda proposes that a
limitation to "simple and repetitive (unskilled) work" would accommodate her mild
mental impairments. (Dkt. 21 at 12). In response, the Commissioner asserts that
the ALJ's failure to include non-exertional limitations in the RFC was intentional
and supported by substantial evidence. (Dkt. 19 at 6-11).

When crafting a claimant’s RFC, an ALJ must incorporate all of a claimant's
limitations in the assessment. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).
Both an RFC assessment and the hypothetical posed to the vocational expert must
account for documented limitations of concentration, persistence, or pace. Paul v.
Berryhill, 760 F. App'x 460, 465 (7th Cir. 2019) (citing Moreno v. Berryhill, 882 F.3d
722, 730 (7th Cir. 2018)). Furthermore, if an ALJ relies on testimony from a

vocational expert ("VE"), the hypothetical question the ALJ poses to the VE "must
incorporate all of the claimant’s limitations supported by the medical evidence in
the record." Varga, 794 F.3d at 813.
As noted above, in the Step Two analysis, the ALJ found that Glenda has
mild limitations in three of the four "paragraph B" criteria – understanding,
remembering, and applying information; adapting or managing oneself; and
maintaining concentration, persistence, or pace. (Dkt. 13-2 at 21-22, R. 20-21). The

ALJ considered Glenda's mental limitations in the "paragraph B" analysis and
when weighing the opinions of the state agency psychological consultants.2 (Dkt. 13-
2 at 23, R. 22). In the RFC section, however, the ALJ included no non-exertional

2 At the end of the "paragraph B" analysis, the ALJ explained that the "limitations identified in the
'paragraph B' criteria are not a residual functional capacity assessment but are used to rate the
severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental
residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment. The following residual functional capacity assessment reflects
the degree of limitation I have found in the 'paragraph B' mental function analysis." (Dkt. 13-2 at 22,
R. 21).
limitations to address any of the "paragraph B" criteria. Even if the ALJ had
reviewed Glenda's records and concluded that no functional limitations were
warranted, he was still required to explain how he arrived at that conclusion. See

Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (ALJ is not required to mention
every piece of evidence but must provide an "accurate and logical bridge" between
the evidence and the conclusion that the claimant is not disabled, in order to
promote meaningful judicial review); Russell G. v. Saul, No. 1:18-cv-02785-DLP-
TWP, 2019 WL 4409358, at *9 (S.D. Ind. Sept. 16, 2019) (ALJ required to explain
why limitations were not warranted, especially where a limitation would render

claimant disabled).
The Commissioner contends that the ALJ intentionally did not include
mental limitations in the RFC because any such limitations are not supported by
the evidence in the record. (Dkt. 19 at 6-11). The Court cannot accept this
contention, however, because the ALJ did not indicate that the record supported
including no mental RFC limitations. The Court's review is limited to the reasons
articulated in the ALJ's decision, and post-hoc rationalizations submitted by the

Commissioner are impermissible. See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir.
2014) (attempts to bolster ALJ's position with post-hoc rationale are impermissible);
Phillips v. Astrue, 413 F. App'x 878, 883 (7th Cir. 2010) ("We confine our review to
the reasons offered by the ALJ and will not consider post-hoc rationalizations that
the Commissioner provides to supplement the ALJ's assessment of the evidence.");
Villano v. Astrue, No. 2:07 CV 187, 2009 WL 1803131, at *3 (N.D. Ind. June 23,
2009) (Commissioner's position limited to the ALJ's written decision, especially with
respect to the required bridge between facts and conclusions, thus prohibiting post-
hoc rationalization).

It may well be true that the ALJ considered Glenda's mental limitations and
concluded that no functional limitations in the RFC were warranted, and that
decision would be fully within the ALJ's discretion to make. The ALJ errs here,
however, by remaining silent on the topic of mental limitations, leaving the Court
without any opportunity for meaningful review of the ALJ's reasoning. See Julie J.
v. Kijakazi, No. 1:20-cv-01597-SEB-DLP, 2021 WL 4437587, at *2 (S.D. Ind. Sept.

28, 2021) (ALJ erred by failing to explain why no mental limitations were
warranted, despite having assessed mild limitations in all four areas of mental
functioning); Hiatt v. Colvin, No. 1:12-cv-01438-TWP-TAB, 2014 WL 1048894, at *6
(S.D. Ind. Mar. 18, 2014) (remand appropriate where ALJ's opinion was silent on
whether ALJ considered impairment when crafting the RFC); see also Catchings v.
Astrue, 769 F. Supp. 2d 1137, 1146 (N.D. Ill. 2011) (remand appropriate where ALJ
was silent on case dispositive issue of need to elevate legs).

At present, the Court is left to guess what the ALJ considered and why he did
not include any limitations that addressed Glenda's difficulties with understanding,
remembering, and applying information, adapting or managing oneself, and
maintaining concentration, persistence, or pace. In his Step Two analysis, the ALJ
found mild limitations because of Glenda's memory difficulties during the
consultative exam and during a neuropsychological evaluation and Glenda's self-
reports of difficulties with concentration and focus and handling stress. (Dkt. 13-2 at
21, R. 20). These reasons seem to indicate that the ALJ credited some evidence in
the record for demonstrating Glenda's issues with concentration, persistence, and

pace and understanding, remembering, or applying information. The ALJ's opinion
lacks a logical bridge that connects the evaluation of the evidence to the end result of
no functional limitations being included in the RFC to address Glenda's difficulties
with understanding, remembering, or applying information or maintaining
concentration, persistence, or pace.
Whether the ALJ assigned the appropriate non-exertional limitations is

vitally important to Glenda's case, because the addition of a common non-exertional
limitation to "unskilled work" would render a finding that Glenda is disabled, per
the vocational expert's testimony. (Dkt. 16-2 at 6, R. 547). As such, the Court cannot
consider the ALJ's failure to be harmless error. See Daugherty v. Berryhill, No. 1:18-
cv-256, 2019 WL 2083033, at *14 (N.D. Ind. May 13, 2019) (citing Brindisi ex rel.
Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003)) (remand appropriate where
ALJ was silent on a case dispositive piece of evidence, "despite the ALJ's duty to

acknowledge dispositive evidence"). Moreover, the ALJ's conclusion that Glenda is
not disabled was based on her ability to perform her past relevant work as a
supervisor in a contract-sheltered workshop, which is a skilled position – however,
"even mild limitations in domains like concentration, persistence, or pace can
impact a claimant's ability to work in skilled or semi-skilled positions." Pamela J. B.
v. Saul, No. 19 C 6800, 2021 WL 963765, at *4 (N.D. Ill. Mar. 15, 2021) (quoting
Lawrence J. v. Saul, 2020 WL 108428, at *3 (N.D. Ill. Jan. 9, 2020); see also Cheryl
C. v. Berryhill, 2019 WL 339514, at *3 (N.D. IIL. Jan. 28, 2019) (finding that the job
responsibilities of a billing clerk, a semi-skilled position with an SVP of 4, is of
"sufficient complexity that even mild limitations in daily activities, social
functioning, or concentration, persistence, or pace could impact and individual's
ability to perform" the position).
Because the ALJ fails to provide a logical bridge between the evidence and
his conclusions, the Court concludes that the ALJ's opinion is not supported by
substantial evidence, and this case must be remanded for further consideration.
V. CONCLUSION
For the reasons detailed herein, the Court REVERSES the ALJ’s decision
denying the Plaintiff benefits and REMANDS this matter for further proceedings
pursuant to 42 U.S.C. § 405(g) (sentence four). Final judgment will issue
accordingly.
So ORDERED.

Date: 8/2/2022 orcas ZL Mhyyre
Doris L. Pryor
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record via email

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169338. Public record. Not legal advice.