Christopher Jozefyk v. Nancy Berryhill

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1898

CHRISTOPHER JOZEFYK,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 16-CV-1361 — William C. Griesbach, Chief Judge.

____________________

ARGUED APRIL 24, 2019 — DECIDED MAY 8, 2019

____________________

Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.

PER CURIAM. Christopher Jozefyk applied for Disability In-

surance Benefits and Supplemental Security Income, claiming

disability based on several physical and mental conditions,

including degenerative changes in his cervical spine, lumbar

strain, obesity, affective disorder, and anxiety disorder. An

Administrative Law Judge denied benefits, and the district

court concluded that substantial evidence supported the

2 No. 18-1898

ALJ’s decision. Jozefyk raises two arguments on appeal: (1)

the ALJ did not establish a valid waiver of attorney represen-

tation before allowing Jozefyk to proceed pro se at the hearing,

and (2) the residual functional capacity finding did not ac-

count for Jozefyk’s moderate limitations in concentration,

persistence, or pace. Because the record does not substantiate

either argument, we affirm.

I. BACKGROUND

On appeal, Jozefyk addresses only his mental conditions,

so we limit our analysis accordingly.

Jozefyk was diagnosed with depression in 2001, but he did

not receive consistent treatment for his symptoms until more

than a decade later. In May 2013, psychologist William Camp

diagnosed Jozefyk with generalized anxiety disorder, depres-

sive disorder, and avoidant personality disorder. Jozefyk told

Dr. Camp that he “froze up” in stressful situations and had

difficulty being around groups of people. He also reported

short-term memory problems but performed well on

Dr. Camp’s memory assessments. Another doctor, neuropsy-

chologist William Hitch, also evaluated Jozefyk and found

that he had normal memory function and only mild concen-

tration impairments.

Jozefyk’s medical records were also reviewed by two

agency psychologists: Edmund Musholt (in June 2013) and

Kenneth Clark (in October 2013). Dr. Musholt concluded that

Jozefyk had severe impairments of affective and anxiety dis-

orders, causing moderate limitations in concentration, persis-

tence, or pace. Although Jozefyk had reported memory diffi-

culties, Dr. Musholt found no indication of cognitive or

memory problems. But Dr. Musholt opined that, because of

No. 18-1898 3

Jozefyk’s difficulties in social settings, he was moderately lim-

ited in his ability to work in coordination with or in proximity

to others. Dr. Clark reviewed an updated medical record and

made the same findings as Dr. Musholt.

In November 2014, Jozefyk sought treatment from psychi-

atrist Dr. Guy Powers. Dr. Powers observed that Jozefyk had

moderate functional difficulties but was otherwise alert and

oriented. He diagnosed Jozefyk with depressive disorder and

recommended medication and therapy.

Before his administrative hearing, Jozefyk was sent several

written communications from the Social Security Administra-

tion, including a publication entitled “Your Right to Repre-

sentation,” explaining his right to an attorney, organizations

that could help him find an attorney, the fee structure, and the

benefits of representation in disability proceedings. Also, in

his request for a hearing, Jozefyk certified: “I do not have a

representative. I understand that I have a right to be repre-

sented and that if I need representation, the Social Security

office or hearing office can give me a list of legal referral and

service organizations to assist me in locating a representa-

tive.”

In March 2015, Jozefyk appeared for his ALJ hearing with-

out representation. The ALJ noted on the record that Jozefyk

did not have an attorney and asked him if he was aware of his

right to counsel. Jozefyk responded “yes” and stated that, be-

cause none of the lawyers that he had contacted would take

his case, he decided to proceed by himself. The ALJ offered to

continue the hearing to give Jozefyk more time to find an at-

torney, but Jozefyk again stated that he wanted to proceed.

Jozefyk testified that he previously worked as a security

guard and a gas station cashier, but he was no longer looking

4 No. 18-1898

for work because of his “really bad anxiety and depression.”

Jozefyk explained that he has difficulty getting along with

others because of his mental impairments. Jozefyk’s daily ac-

tivities include spending time on the computer and watching

television. He also occasionally helps his mother with house-

work.

A vocational expert also testified at the hearing. The ALJ

asked the expert to consider a hypothetical person with

Jozefyk’s age, education, work experience, and the following

limitations: simple, routine, repetitive tasks requiring no

more than occasional contact with supervisors and cowork-

ers; no contact with the public; and an assigned work area at

least ten to fifteen feet away from coworkers. The expert

opined that this person could not perform Jozefyk’s past

work, but could work as a floor waxer, kitchen helper, or ma-

chine operator.

The ALJ applied the standard five-step analysis,

see 20 C.F.R. § 404.1520(a), and concluded that Jozefyk was

not disabled. At Step 1, the ALJ determined that Jozefyk had

not engaged in substantial gainful activity since his alleged

onset date in December 2011. At Step 2, the ALJ evaluated

Jozefyk’s physical and mental conditions, and concluded that

he was suffering from severe impairments—lumbar strain,

obesity, degenerative changes in the cervical spine, and affec-

tive and anxiety disorders—within the meaning of the Act

and regulations. See 20 C.F.R. § 404.1520(c). But at Step 3, the

ALJ determined that these impairments do not meet a listing

for presumptive disability. The ALJ noted, however, that

Jozefyk’s mental impairments cause “moderate” difficulties

in social functioning and concentration, persistence, or pace.

No. 18-1898 5

In assessing Jozefyk’s RFC (Step 4), the ALJ found that

Jozefyk could perform medium exertional work with the re-

strictions enumerated in the hypothetical question to the vo-

cational expert. She afforded the opinions of the agency psy-

chologists “great weight,” and found credible the opinion of

Jozefyk’s treating physician, Dr. Powers, that Jozefyk has

moderate mental impairments while in social settings. But the

evidence as a whole, in the ALJ’s assessment, did not support

a finding that Jozefyk’s impairments were so severe as to pre-

clude him from engaging in any work activity. The ALJ found

that Jozefyk could not perform his past work as a cashier or

security guard. But at Step 5, the ALJ relied on the vocational

expert’s testimony to conclude that Jozefyk could perform a

different job available in the national economy.

The Appeals Council denied Jozefyk’s request for review,

and the district court upheld the ALJ’s decision.

II. ANALYSIS

Because the Appeals Council denied review, we evaluate

the ALJ’s decision as the final word of the Commissioner. See

Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir.), modified on reh’g

(7th Cir. 2018). The ALJ’s decision will be upheld if supported

by “substantial evidence,” which means “such relevant evi-

dence as a reasonable mind might accept as adequate to sup-

port a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21

(7th Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)).

Jozefyk first argues that the ALJ did not obtain a valid

waiver of his right to counsel before allowing him to proceed

pro se at the hearing. Although Jozefyk is correct that he had a

statutory right to counsel, see 42 U.S.C. § 406, a claimant can

waive that right once advised of “‘(1) the manner in which an

6 No. 18-1898

attorney can aid in the proceedings, (2) the possibility of free

counsel or a contingency arrangement, and (3) the limitation

on attorney fees to 25 percent of past due benefits and re-

quired court approval of the fees.’” Skinner v. Astrue, 478 F.3d

836, 841 (7th Cir. 2007) (quoting Binion v. Shalala, 13 F.3d 243,

245 (7th Cir. 1994)). We mandate more disclosures than the

regulations, which require the agency simply to notify the

claimant in writing of his “options for obtaining attorneys,”

and the “organizations which provide legal services free of

charge.” 42 U.S.C. § 1383(d)(2)(D); 20 C.F.R. § 404.1706; see

also Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir.

2009) (discussing the Seventh Circuit’s standard for waiver).

Here, Jozefyk was adequately advised of his right to coun-

sel. Months before the hearing, the agency mailed several

written notices explaining his right to an attorney, counsel’s

role in disability proceedings, and available fee arrangements.

Specifically, the “Your Right to Representation” pamphlet at-

tached to his hearing notices lists, in detail, the admonish-

ments this court requires to establish waiver.

Jozefyk counters that there is no evidence to prove that he

received the pamphlets and, even if he did receive them, the

ALJ should have repeated the information at the hearing. But

there are several problems with Jozefyk’s arguments. First,

Jozefyk does not deny receiving the pamphlets; he merely

speculates that he might not have (although he would know).

Moreover, the evidence shows that he likely received the

pamphlets and undoubtedly received other right-to-counsel

notices. Jozefyk signed a form confirming that he received at

least one notice, and most of them—including the one mailed

to Jozefyk five days before he signed the confirmation form—

No. 18-1898 7

specifically list the pamphlet as an enclosure. And he ap-

peared at the correct place and time for the hearing, suggest-

ing that he received and read the SSA’s letter, to which the

pamphlet was attached. He also certified in a separate docu-

ment (the request for a hearing) that he understood his right

to representation and that he was aware of referral organiza-

tions that could help him secure counsel.

Second, so long as it contains the required information,

written notice adequately apprises a claimant of his right to

counsel. Compare Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir.

2003) (per curiam) (“[T]he numerous written notices Castillo

received … sufficiently informed her of her right to an attor-

ney.”) with Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir.

1991) (written notice and oral reminders were insufficient be-

cause they failed “to fully discuss the benefits of legal repre-

sentation or the possibility of contingency arrangements.”).

That’s especially true when the ALJ issues the claimant an oral

reminder at the hearing. See Evangelista v. Sec. of Health and

Human Serv., 826 F.2d 136, 142 (1st Cir. 1987). We decline to

expand an already demanding waiver standard by requiring

the ALJ to recite admonishments that the agency’s own regu-

lations do not require. Moreover, the ALJ was not silent: she

confirmed that Jozefyk was appearing without an attorney

and that he was aware of his right to counsel.

In any event, Jozefyk has not shown that he was preju-

diced by the lack of counsel because the ALJ adequately de-

veloped the record. “The ALJ’s duty to develop the record

fully and fairly where the claimant proceeds without counsel

is met if the ALJ probes the claimant for possible disabilities

and uncovers all of the relevant evidence.” Binion, 13 F.3d

at 245. To prove prejudice, the claimant must point to specific,

8 No. 18-1898

relevant facts that the ALJ did not consider. Nelms v. Astrue,

553 F.3d 1093, 1098 (7th Cir. 2009). Here, Jozefyk argues that

the ALJ did not obtain medical records of Jozefyk’s bipolar

diagnosis and did not ask certain questions about his mental

health. But the ALJ asked Jozefyk whether he had any prob-

lems gathering evidence or if he wished to submit other med-

ical documents. Jozefyk listed three missing medical exhibits,

so the ALJ gave Jozefyk extra time to file them and waited un-

til the documents were submitted to reach a final decision.

Moreover, the ALJ heard testimony about Jozefyk’s mental

impairments and their impact on his daily functioning; it is

unclear how more questions on the same issues would have

changed the outcome. Thus, Jozefyk’s waiver of counsel does

not warrant a remand.

Next, Jozefyk argues that the ALJ’s RFC determination did

not adequately account for his moderate limitations in con-

centration, persistence, or pace. Specifically, he asserts that the

ALJ omitted accommodations for Jozefyk’s less severe symp-

toms, such as fatigue, loss of energy, and difficulty with atten-

tion and concentration. And the limitations that the ALJ did

include, he continues, were not logically connected to record

evidence. See Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir.

2004).

We see no error in the ALJ’s assessment; she considered all

limitations supported by record evidence. See Yurt v. Colvin,

758 F.3d 850, 857 (7th Cir. 2014). Jozefyk points to self-re-

ported symptoms that doctors, including his own treating

physician, could not confirm. For instance, Jozefyk insists that

he has memory and concentration difficulties, but doctors ob-

served that Jozefyk appeared “alert and orientated” and per-

formed well on memory tests. Even so, the ALJ credited

No. 18-1898 9

Jozefyk’s testimony and included accommodations for a

“mild mental functional impairment” in the RFC assessment.

She did not, as Jozefyk contends, discount the less severe im-

pairments entirely. See Denton v. Astrue, 596 F.3d 419, 423–24

(7th Cir. 2010). The ALJ also tied the record evidence to the

limitations included in the RFC finding, tailoring Jozefyk’s

workplace setting to accommodate his social anxiety.

See Moore, 743 F.3d at 1121 (requiring an ALJ to build a “logi-

cal bridge” between limitations and RFC finding); Terry v.

Astrue, 580 F.3d 471, 475 (7th Cir. 2009).

Jozefyk counters that the ALJ failed to impose restrictions

to account for his moderate limitation in concentration, per-

sistence, or pace. He emphasizes that this court has said that

generically confining claimants to “routine tasks and limited

interactions with others” might not adequately capture a

claimant’s limitations. See Varga v. Colvin, 794 F.3d 809, 814

(7th Cir. 2015) (quoting Yurt, 758 F.3d at 858–59)). But

Jozefyk’s case is distinguishable. Although Jozefyk states that

he suffers from psychological limitations while alone, accord-

ing to the medical evidence, his impairments surface only

when he is with other people or in a crowd. Indeed, one

agency doctor opined that Jozefyk’s memory and adaptive

functioning were intact, but that he might have moderate dif-

ficulties with both in social settings. We have upheld RFC de-

terminations similar to the one here when they adequately ac-

count for the claimant’s demonstrated psychological symp-

toms. See Johansen v. Barnhart, 314 F.3d 283, 288–89 (7th Cir.

2002); see also O’Connor-Spinner v. Astrue, 627 F.3d 614, 619

(7th Cir. 2010) (summarizing similar cases).

Finally, even if the ALJ’s RFC assessment were flawed, any

error was harmless. See McKinzey v. Astrue, 641 F.3d 884, 892

10 No. 18-1898

(7th Cir. 2011). It is unclear what kinds of work restrictions

might address Jozefyk’s limitations in concentration, persis-

tence, or pace because he hypothesizes none. The ALJ found

that Jozefyk’s memory and concentration were slightly im-

paired, but Jozefyk cites no evidence that those deficits keep

him from performing simple, routine, and repetitive tasks.

See Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009) (claimant

with deficiencies in concentration, persistence, or pace can

perform semiskilled work); Sims v. Barnhart, 309 F.3d 424, 431

(7th Cir. 2002) (claimant with moderate limitations in concen-

tration, persistence, or pace can perform “simple and repeti-

tive light work”). Because Jozefyk did not testify about re-

strictions in his capabilities related to concentration, persis-

tence, or pace deficits, and the medical record does not sup-

port any, there are no evidence-based restrictions that the ALJ

could include in a revised RFC finding on remand.

III. CONCLUSION

For the foregoing reasons, the judgment is AFFIRMED. 1

1 The Commissioner filed a supplemental brief in this case, purport-

edly triggered by the Supreme Court’s recent decision in Biestek v. Ber-

ryhill, 139 S. Ct. 1148, 1152 (2019). The agency argues that our standard for

articulating functional restrictions caused by moderate limitations in con-

centration, persistence, or pace—a topic that a spate of decisions has ad-

dressed in recent months—is too demanding and even violates federal

regulations. See, e.g., DeCamp v. Berryhill, 916 F.3d 671 (7th Cir. 2019); Win-

sted v. Berryhill, 915 F.3d 466 (7th Cir. 2019). We granted the Commissioner

leave to file the brief before receiving Jozefyk’s opposition to the motion,

so Jozefyk’s response was deemed a motion to reconsider. But we see no

need to reconsider our decision. The Commissioner’s supplemental brief

had little relevance to this case and no bearing on the outcome. We there-

fore DENY Jozefyk’s motion to reconsider as moot.