Paschal v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

AARON PASCHAL,

Plaintiff,

v. Case No. 1:24-CV-183 JD

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff Aaron Paschal applied for disability insurance benefits under Title XVI of the

Social Security Act, alleging that he became disabled in November 2007. His claim was rejected,

leading to a review by an Administrative Law Judge (“ALJ”), who concluded that Mr. Paschal

was not disabled. The Appeals Council later denied his request for review, and Mr. Paschal now

seeks judicial review in this Court. For the reasons below, the Court will remand the case to the

Social Security Administration for further proceedings.

A. Standard of Review

Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as

the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707

(7th Cir. 2013). This Court will affirm the Commissioner’s findings of fact and denial of benefits

if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).

Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). “The

threshold for substantial evidence ‘is not high.’” Warnell v. O’Malley, 97 F.4th 1050, 1052 (7th

Cir. 2024) (quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)). This evidence must be

“more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836,

841 (7th Cir. 2007). Even if “reasonable minds could differ” about the disability status of the

claimant, the Court must affirm the Commissioner’s decision as long as it is adequately

supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

The ALJ has the duty to weigh the evidence, resolve material conflicts, make

independent findings of fact, and dispose of the case accordingly. Perales, 402 U.S. at 399–400.

In evaluating the ALJ’s decision, the Court considers the entire administrative record but does

not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute the Court’s

own judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539

(7th Cir. 2003). Still the Court conducts a “critical review of the evidence” before affirming the

Commissioner’s decision. Id. An ALJ must evaluate both the evidence favoring the claimant and

the evidence favoring the claim’s rejection and may not ignore an entire line of evidence that is

contrary to his or her findings. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). The ALJ

must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580

F.3d 471, 475 (7th Cir. 2009).

B. Standard for Disability

Disability benefits are available only to those individuals who can establish disability

under the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). The claimant

must be 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 12 months.” 42

U.S.C. § 423(d)(1)(A). The Social Security regulations create a five-step process to determine

whether the claimant qualifies as disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)–(v); 416.920(a)(4)(i)–

(v). The steps are to be used in the following order:

1. Whether the claimant is currently engaged in substantial gainful activity;

2. Whether the claimant has a medically severe impairment;

3. Whether the claimant’s impairment meets or equals one listed in the regulations;

4. Whether the claimant can still perform past relevant work; and

5. Whether the claimant can perform other work in the national economy.

See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).

At step two, an impairment is severe if it significantly limits a claimant’s ability to do

basic work activities. 20 C.F.R. §§ 404.1522(a), 416.922(a). At step three, a claimant is deemed

disabled if the ALJ determines that the claimant’s impairment or combination of impairments

meets or equals an impairment listed in the regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If not, the ALJ must then assess the claimant’s residual functional capacity,

which is defined as the most a person can do despite any physical and mental limitations that

may affect what can be done in a work setting. 20 C.F.R. §§ 404.1545, 416.945. The ALJ uses

the residual functional capacity to determine whether the claimant can perform his or her past

work under step four and whether the claimant can perform other work in society at step five. 20

C.F.R. §§404.1520(e), 416.920(e). A claimant qualifies as disabled if he or she cannot perform

such work. The claimant has the initial burden of proof at steps one through four, while the

burden shifts to the Commissioner at step five to show that there are a significant number of jobs

in the national economy that the claimant can perform. Young v. Barnhart, 362 F.3d 995, 1000

(7th Cir. 2004).

C. Discussion

(1) The ALJ’s Decision

Mr. Paschal filed a Title XVI application for disability insurance benefits alleging

disability beginning in November 2007. His claim was denied initially and upon reconsideration,

leading to a hearing before an ALJ on August 10, 2023.

At the hearing, Mr. Paschal testified, among other things, that he suffers from Postural

Orthostatic Tachycardia Syndrome (POTS), which affects his blood vessels, making physical

labor difficult due to increased heart rate and low blood pressure, causing dizziness, fatigue, and

sometimes vision problems. (R. at 65.) He said he experiences symptoms of POTS more severely

in hot weather, which can lead to dizziness and vision issues. (R. at 66.) He also stated that he

suffers from migraine headaches, which are managed with medication (R. at 67), and has sleep

apnea, which remains untreated due to difficulties with using a CPAP machine and other devices

but which he manages by sleeping on his side (R. at 68).

Mr. Paschal further testified that he has been diagnosed with depression, anxiety, ADHD,

and autism. (R. at 73.) He previously received counseling from Russell Mynheir, which helped

him manage depression and negativity. He no longer sees the counselor but continues to take

lithium for anxiety and depression, prescribed by Dr. Ahmad. (R. at 74–75.) Mr. Paschal said he

receives services from a behavioral skills coach, Adam Blake, whom he sees every other week.

(R. at 76–77.) According to Mr. Paschal, he finds time pressure challenging and requires

motivation to complete tasks effectively. (R. at 78.)

On August 25, 2023, the ALJ issued a decision finding that Mr. Paschal was not disabled.

(R. at 45.) In doing so, the ALJ employed the customary five-step analysis. At Step 2, the ALJ

determined that Mr. Paschal suffered from the following severe impairments: “history of autism

spectrum disorder, depression, anxiety, attention deficit hyperactivity disorder (ADHD), postural

orthostatic tachycardia syndrome (POTS), sleep apnea, and episodic migraine headaches without

aura.”1 (R. at 22.)

At Step 4, the ALJ determined Mr. Paschal’s residual functional capacity (“RFC”),2

finding that he can

perform light work3 . . . except he can stand and/or walk, in combination, 4 hours

in an 8-hour workday, occasionally climb ramps and stairs, balance, stoop, kneel,

crouch, and crawl, and never climb ladders, ropes or scaffolds. He must avoid

concentrated exposure to extreme cold, heat, humidity, wetness, loud noise,

vibrations, bright/flashing lights, pulmonary irritants, including fumes, odors, dust,

gases, poorly ventilated areas and chemicals, as well as hazards, including

operational control of dangerous moving machinery, unprotected heights, slippery,

uneven, moving surfaces. Mentally, the claimant can have no sudden or

unpredictable workplace changes in terms of use of work tools, work processes, or

work settings, and if there are workplace changes, they are introduced gradually

and work that does not require satisfaction of strict or rigid production quotas, does

not involve assembly line pace work, or hourly quota work, but can tolerate a

flexible work pace with end of day goals.

(R. at 38.)

1 The ALJ found that Mr. Paschal suffered these severe impairments both before and after attaining age 18

(R. at 22, 38.) Mr. Paschal is not challenging the ALJ’s determination as it applies before his 18th birthday. (See Pl.

Br., DE 10 at 1 n.1.)

2 “The RFC reflects ‘the most [a person] can still do despite [the] limitations’ caused by medically

determinable impairments and is assessed ‘based on all the relevant evidence in [the] case record.’” Cervantes v.

Kijakazi, No. 20-3334, 2021 WL 6101361, at *2 (7th Cir. Dec. 21, 2021) (quoting 20 C.F.R. §§ 404.1545,

416.945(a)).

3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects

weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires

a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of

arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the

ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also

do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long

periods of time.” 20 C.F.R. § 404.1567.

The ALJ posed this RFC to the vocational expert (“VE”) as part of a hypothetical

question. The VE testified that there were jobs available in significant numbers in the national

economy for such an individual: collator operator, routing clerk, and mail clerk. (R. at 93.) The

VE further testified that to maintain employment, “[g]enerally, workers should stay on task

around 90% of the workday, and that would be exclusive of regular breaks.” (R. at 95.)

Additionally, “workers should not accumulate more than 12 absences per year, and virtually,

termination could [occur] sooner if someone had the infraction of a no call/no show, or if they

were missing consecutive days in a row or consecutive weeks or months in a row.” (Id.)

In his decision, the ALJ noted that Mr. Paschal’s POTS as well as his migraine headaches

are well controlled with medication. (R. at 40.) His POTS did worsen after he was diagnosed

with COVID but has largely recovered since then and he has been able to hike with his friends

and his father. (Id.) The ALJ next found that Mr. Paschal’s mental impairments, including

autism, depression, and anxiety, are well controlled with medication, and he has been able to

work part-time since 2021. (R. at 40, 42.) Still, the ALJ found that “[w]ith regard to

concentrating, persisting, or maintaining pace, the claimant has moderate limitations.” 4 (R. at 23,

38.)

Dr. Matthew Barb is Mr. Paschal’s primary care physician, and Dr. Hani Ahmad is his

treating psychiatrist. The ALJ considered their medical opinions but found them both

unpersuasive. Dr. Barb opined that Mr. Paschal is limited to standing 30 minutes at one time,

sitting 2 hours total, and standing/walking 4 hours total in an 8-hour workday. He also noted the

4 The areas of mental functioning are based on a five-point rating scale consisting of none, mild, moderate,

marked, and extreme limitation. A person has a moderate limitation if his mental “functioning . . . independently,

appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(F)(2)(c). A

moderate limitation is greater than a mild limitation, which means that mental function is “slightly” limited, but less

than marked limitation, which means that the mental function is “seriously limited.” Id.

claimant would be off-task 10% of the workday and absent more than four days per month. The

ALJ rejected these opinions finding that they were not well supported with references to the

objective medical evidence and were inconsistent with the record. The ALJ noted that Dr. Barb’s

physical exam of the claimant was normal except for swelling of his face, and there was no

explanation or support for the limitations regarding time off-task, absenteeism, and limitations

sitting.

Dr. Ahmad opined that Mr. Paschal was seriously limited in dealing with normal work

stress and that he does not always understand social cues. Similar to Dr. Barb’s opinions, the

ALJ found these opinions were not supported by Dr. Ahmad’s own treatment notes. Likewise,

the ALJ noted that Mr. Paschal’s exams showed no such limitations, nor did his own testimony

or work history.

The ALJ evaluated the opinions of state agency physicians Karl Kennedy, Psy.D., and M.

Brill, M.D., who concluded that Mr. Paschal’s impairments were nonsevere and caused no

limitations. The ALJ found these opinions unpersuasive, as they were inconsistent with the

overall record. Upon reconsideration, William Shipley, Ph.D., and Richard Wenzler, M.D.,

opined that Mr. Paschal had less than marked limitations in attending and completing tasks,

interacting and relating with others, and health and physical well-being, with no limitations in the

remaining domains. The ALJ found these opinions generally persuasive, except regarding social

interaction, noting that Mr. Paschal testified to having no difficulties in this area. Dr. Wenzler

also opined that Mr. Paschal was limited to light exertional work with specific physical

restrictions; the ALJ found this assessment persuasive as it aligned with objective medical

evidence. However, the ALJ was unpersuaded by Dr. Shipley’s opinion that Mr. Paschal’s

mental impairments were nonsevere, finding it unsupported by the medical record.

(2) Concentration, Persistence, and Pace

In his appeal, Mr. Paschal argues that the ALJ committed three reversible errors. First, he

contends that the ALJ’s analysis of the opinions of Dr. Ahmed and Dr. Barb is not supported by

substantial evidence. Second, he claims that the ALJ’s conclusion that his POTS was well

controlled with medication lacks substantial evidentiary support. Finally, Mr. Paschal argues that

the ALJ did not incorporate all of his documented limitations into the RFC. Specifically, the ALJ

found he suffered moderate limitations in concentrating, persisting, or maintaining pace, and in

adapting or managing oneself, but failed to address how these limitations would affect Mr.

Paschal’s ability to stay on task in a competitive work environment. The latter argument warrants

remand for further consideration. As a result, the Court addresses that argument alone and

declines to reach the remaining two, leaving them to be resolved upon remand if necessary.

At Step 3 of the sequential analysis, the ALJ found that Mr. Paschal has moderate

limitations in concentrating, persisting, and maintaining pace,5 and adapting or managing himself

(R. at 38.) Even so, in his RFC finding as well as the hypothetical to the VE, the ALJ is silent

about concentration and persistence:

Mentally, the claimant can have no sudden or unpredictable workplace changes in

terms of use of work tools, work processes, or work settings, and if there are

workplace changes, they are introduced gradually and work that does not require

5 Concentration, persistence, and pace refer

to the abilities to focus attention on work activities and stay on task at a sustained rate. Examples

include: Initiating and performing a task that [the claimant] understand[s] and know[s] how to do;

working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or

avoiding distractions while working; changing activities or work settings without being disruptive;

working close to or with others without interrupting or distracting them; sustaining an ordinary

routine and regular attendance at work; and working a full day without needing more than the

allotted number or length of rest periods during the day.

20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(E)(3).

satisfaction of strict or rigid production quotas, does not involve assembly line pace

work, or hourly quota work, but can tolerate a flexible work pace with end of day

goals.

(R. at 38.) On the basis of these and other limitations, the VE testified that there are a significant

number of jobs in the national economy that the hypothetical person could perform. (R. at 93.)

The ALJ relied on that testimony to conclude that Mr. Paschal was not disabled. (R. at 35–36.)

The ALJ’s RFC and the hypothetical, which is derived from the RFC, are incomplete because

they omit Mr. Paschal’s moderate limitations in concentration and persistence.

“As a general rule, 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. Yurt v. Colvin,

758 F.3d 850, 857 (7th Cir. 2014). “This includes any deficiencies the claimant may have in

concentration, persistence, or pace.” Id.; see Winsted v. Berryhill, 923 F.3d 472, 476 (7th Cir.

2019) (“Again and again, we have said that when an ALJ finds there are documented limitations

of concentration, persistence, and pace, the hypothetical question presented to the VE must

account for these limitations.”) (collecting cases). Adequate concentration, persistence, and pace

are required for competitive employment. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §

12.00(F)(3)(f)(i) (“To do a work-related task, you must be able to understand and remember and

apply information required by the task. Similarly, you must be able to concentrate and persist

and maintain pace in order to complete the task, and adapt and manage yourself in the

workplace. Limitation in any one of these parts (understand or remember or apply; concentrate

or persist or maintain pace; adapt or manage oneself) may prevent you from completing a work-

related task.”). “Though particular words need not be incanted, we cannot look at the absence of

the phrase ‘moderate difficulties with concentration, persistence, and pace’ and feel confident

this limitation was properly incorporated in the RFC and the hypothetical question.” Winsted,

923 F.3d at 477 (emphasis in the original). “[W]e will not assume that the VE is apprised of

such limitations unless she has independently reviewed the medical record.” Yurt, 758 F.3d at

857.

The record does not reflect that the VE reviewed Mr. Paschal’s medical history in a

manner that would allow her to account for relevant work limitations absent a complete

hypothetical, and the Commissioner is silent on this issue. Therefore, the ALJ should have stated

an adequate hypothetical to the VE and, correspondingly, an adequate RFC that justifies the

ALJ’s ultimate conclusion that there are jobs in significant numbers in the national economy that

Mr. Paschal can perform. Without incorporating Mr. Paschal’s moderate limitations in

concentration and persistence, the hypothetical was incomplete and potentially misleading.

While the RFC references pace—“work that does not require satisfaction of strict or rigid

production quotas, does not involve assembly line pace work, or hourly quota work, but can

tolerate a flexible work pace with end of day goals”—pace is conceptually distinct from

concentration and persistence. According to Webster’s Third New International Dictionary

(1981), pace is defined as “rate of performance or delivery”; concentration as “directing of the

attention or of the mental faculties toward a single object”; and persistence as “power or capacity

of continuing in a course in the face of difficulties.” Given these distinct definitions, the ALJ’s

reference to pace does not encompass limitations in concentration and persistence. Moreover,

“workplace changes in terms of use of work tools, work processes, or work settings” do not

suggest limitations on concentration and persistence. Cf. Winsted v. Berryhill, 923 F.3d 472, 476

(7th Cir. 2019) (finding that the ALJ’s “proposed limitations––that [plaintiff] perform only

‘simple, routine, repetitive tasks with few workplace changes’” do not account for “limitations of

concentration, persistence, and pace” (emphasis added)). Without a complete hypothetical, there

is no assurance that the VE fully understood Mr. Paschal’s limitations so as to provide correct

information about the jobs he can do that are available in significant numbers in the national

economy. See Lothridge v. Saul, 984 F.3d 1227, 1234 (7th Cir. 2021) (“The ALJ’s findings

about the jobs [the plaintiff] could perform needed to account in a meaningful way for the earlier

findings that recognized her difficulties with concentration, completing tasks, and managing

stress.”); Crump, 932 F.3d at 570 (“[T]he 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.” (quoting Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018)). As the Seventh

Circuit put it in O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010), “our cases,

taken together, suggest that the most effective way to ensure that the VE is apprised fully of the

claimant’s limitations [of concentration, persistence, and pace] is to include all of them directly

in the hypothetical.” Yet despite the ALJ finding moderate limitations in concentration and

persistence, he omitted them from both the hypothetical and the RFC. There’s no indication of

how those limitations affect, if at all, Mr. Paschal’s ability to maintain a schedule, attend work

regularly, be punctual within customary tolerances, or complete a normal workday or workweek.

In other words, the VE gave his opinion about available jobs for someone like Mr. Paschal

without knowing the extent to which he can complete tasks in a timely manner, ignore or avoid

distractions, work without being disruptive, sustain a routine and regular attendance, or work a

full day without needing more than the allotted number or length of rest breaks. Cf. 20 C.F.R. §

Pt. 404, Subpt. P, App. 1 § 12.00(E)(3).

In defending the ALJ, the Commissioner essentially argues that Mr. Paschal has in fact

no mental limitations because Dr. Ahmad “documented normal mood, cognition, insight, and

judgment on mental status examination” and, in early 2023, his examinations remained

unremarkable (Def. Br., DE 16 at 6–7.) The Commissioner also insists that Mr. Paschal “’must

not only prove the existence of impairment, [he] must also prove the existence of limitation.’”

(Id. (quoting Holloway v. O’Malley, No. 3:23-CV475, 2024 WL 1364790, at *5 (N.D. Ind. Apr.

1, 2024).) These arguments are internally inconsistent and unpersuasive. Despite citing positive

mental status findings, the ALJ nevertheless found that Mr. Paschal had moderate limitations in

concentration, persistence, and pace. Indeed, the ALJ accounted for limitations in pace in the

RFC. The Court must assume that, in limiting Mr. Paschal’s concentration and persistence

requirements, the ALJ did what the evidence dictated him to do. And to the extent that the

Commissioner suggests that Mr. Paschal must demonstrate the existence of a limitation, that

burden has already been satisfied—a finding of moderate limitations in concentration and

persistence clearly classifies as such a limitation.

The Commissioner fails to explain how the hypothetical adequately conveys Mr.

Paschal’s moderate limitations in concentration and persistence. Consequently, the ALJ’s

reliance on the VE that there are jobs in the national economy that Mr. Paschal can perform is

tainted with error, and the Court has no confidence that the ALJ’s conclusion is based on

substantial evidence. See Wilder v. Kijakazi, 22 F.4th 644, 654 (7th Cir. 2022) (an error is

harmless if, upon examination of the record, the reviewing Court can “predict with great

confidence what the result of the remand will be”). This is particularly so because the VE noted

in her testimony––in response to the ALJ’s question about how much off-task behavior

employers generally tolerate––that being off-task more than 10% of the time and absent more

than 12 days a year would be job-prohibitive. So it would be critical for the VE to understand

Mr. Paschal’s limitations regarding concentration and persistence as they may directly impact his

ability to do other work in the national economy. See Diaz v. Berryhill, No. 2:17-CV-314, 2018

WL 4627218, at *8 (N.D. Ind. Sept. 27, 2018) (when the ALJ considers off-task time but fails to

explain whether the claimant was limited by any off-task allowances, the ALJ fails to provide a

“logical bridge” between the evidence and the RFC conclusion, requiring remand). In his

argument, the Commissioner also overlooks that the burden at step five––the step in question––is

on the Commissioner. See Young, 362 F.3d at 1000. In short, the Commissioner’s response does

not address the requirement that the areas of mental functioning––concentration and persistence–

–must be accounted for in the RFC.

The Seventh Circuit makes few exceptions for the requirement that all the claimant’s

limitations be included in the RFC so that the VE can base her consideration about the available

jobs on the basis of what the claimant can and can’t do. Such cases do exist but their reach is

very narrow. For example, the Seventh Circuit has allowed the RFC to stand “when a claimant’s

limitations were stress- or panic-related and the hypothetical restricted the claimant to low-stress

work.” O’Connor-Spinner, 627 F.3d at 619 (citing Johansen v. Barnhart, 314 F.3d 283 (7th Cir.

2002); Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir. 2007); and Sims v. Barnhart, 309

F.3d 424, 427, 431–32 (7th Cir. 2002)). Similarly, the court allowed an RFC where, “although

the limitations on concentration, persistence and pace were not mentioned in the hypothetical,

the underlying conditions were.” Id. at 620 (citing Simila v. Astrue, 573 F.3d 503, 522 (7th Cir.

2009)). But none of these scenarios apply here given that nothing in the RFC can be read as a

substitute for moderate concentration and persistence.

D. Conclusion

For these reasons, the Court REVERSES the Agency’s decision and REMANDS this

matter to the Agency for further proceedings consistent with this opinion. The Clerk is directed

to prepare a judgment for the Court’s approval.

SO ORDERED.

ENTERED: June 23, 2025

/s/ JON E. DEGUILIO

Judge

United States District Court