Gregory Urbanek v. Andrew M. Saul ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2019
Decided December 16, 2019
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 19-1394
GREGORY ALAN URBANEK, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 18-cv-201
ANDREW M. SAUL, Commissioner of Barbara B. Crabb,
Social Security, Judge.
Defendant-Appellee.
ORDER
This appeal arises out of Gregory Urbanek’s pursuit of disability insurance
benefits and supplemental security income from the Social Security Administration.
Urbanek asserted disability based on several mental and physical impairments. But an
Administrative Law Judge (“ALJ”) found him not disabled, and the district court
concluded that substantial evidence supported the ALJ’s decision. In this appeal,
Urbanek raises a single issue: whether the ALJ properly accounted for his moderate
limitations in concentration, persistence, or pace. We conclude that the ALJ did so; and
affirm.
No. 19-1394 Page 2
I
Urbanek, now 54, applied in 2014 for supplemental security income and
disability insurance benefits, alleging disability based on Tourette’s syndrome,
obstructive sleep apnea, depression, back pain, anxiety, a learning disability, and
bilateral foot numbness. Urbanek had worked full time as a machine operator for many
years before requesting a voluntary lay off because of his impairments. At the time of
his disability application, Urbanek was working 20 hours a week as a punch press
operator. Both before and after his application, Urbanek reported to his treating doctors
that his conditions prevented him from sleeping, so he persistently felt fatigued and
had difficulty concentrating.
In late 2014, Urbanek told his primary doctor that he wanted to go on disability
and his doctor referred him to a licensed psychologist, Gregory Pritchett, for a
neuropsychological evaluation. Urbanek complained to Dr. Pritchett of excessive
fatigue, fitful sleep, depression, and anxiety, and reported that he struggled to function
at his job. He also reported “having problems with memory and not being able to think
as quickly and as clearly as before, being easily distracted, unable to concentrate or to
use common sense.” Dr. Pritchett noted, however, that his “memory for immediate,
recent, and remote events appeared grossly intact, and quite good.” Dr. Pritchett
determined that Urbanek’s sleep and emotional disorders probably impacted his ability
to multitask and some aspects of memory. But he concluded that Urbanek’s “mild
cognitive deficits alone” did not “warrant a finding of disability,” and that he was
“more than capable of working as long as he was matched with the right job.”
Several of the medical professionals who treated Urbanek opined that he was
capable of working. Travis Krahn, a therapist whom Urbanek saw for depression,
recorded Urbanek’s comments that he was able to take frequent breaks at work and that
his supervisor had “never complained about his productivity.” At the last documented
visit, Krahn noted that Urbanek’s “depression seems to serve a function; that is, to
receive disability.” Dr. David Momont, one of Urbanek’s primary doctors, opined that
he could “find meaningful work” if it was in a structured environment. And one of
Urbanek’s sleep specialists noted that if he were active in his treatment he could be
“returned to full functional status.”
Urbanek’s medical records were reviewed by two agency psychologists,
Dr. Debra Pape and Dr. Thomas Yared, who both opined that Urbanek had severe
impairments of affective and anxiety disorders, causing moderate limitations in social
functioning and concentration, persistence, or pace. On the mental-capacity-assessment
forms that they filled out, Dr. Pape and Dr. Yared checked boxes to reflect their findings
No. 19-1394 Page 3
that Urbanek had moderate limitations in carrying out detailed instructions;
concentrating for extended periods; maintaining a schedule, regular attendance, and
punctuality; and completing a normal workday or workweek without interruptions
from psychologically based symptoms and maintaining pace without unreasonable
length or frequency or rests. Both concluded, in their narrative opinions, that Urbanek
could sustain the basic mental demands of unskilled work but should be limited to
performing simple tasks that required up to three steps in a structured work
environment.
At his hearing before the ALJ in 2017, Urbanek testified that he could not
“concentrate and focus” on his daily tasks and that his impairments made him
miserable, tired, and fatigued. He identified his primary disabilities as severe sleep
apnea, Tourette’s syndrome, and back pain. Urbanek testified that he had difficulty
sitting or standing for more than ten minutes at a time. He said that he drove about
27 miles each way by himself for his part-time job. And though he tried to work shifts
longer than four hours, he could not sustain the effort because afterwards he could not
think clearly and had a hard time driving home.
A licensed psychologist, Ellen Rozenfeld, testified at the hearing as an impartial
medical expert. She acknowledged that Urbanek had moderate limitations in
concentration, persistence, or pace, but concluded that his attention and concentration
“should be sufficient” to complete “tasks of a simple, routine nature.” Her review of
Urbanek’s medical records reflected that he was clear and alert; grossly oriented and
attentive; his memory for immediate, recent, and remote events appeared grossly intact
if not quite good; his judgment and insight appeared to be full; he appeared acutely
sensitized to symptoms and problems; and he had difficulty binding his anxiety and
self-soothing. In addition to limiting Urbanek to simple, routine tasks, she also
recommended that he be restricted to only occasional contact with others and “a more
predictable work setting, routine with no changes, [and] simple decision making.” She
could not comment on his physical stamina to complete an eight-hour day but testified
that she did not think the medical records supported a marked limitation in
concentration. Nor did the record support Urbanek’s subjective complaints regarding
the severity of his symptoms.
A vocational expert was asked at the hearing to consider a hypothetical person
with Urbanek’s age, education, and work experience; who could perform light work
with certain limitations; and who was restricted to the following: performing simple,
routine tasks requiring no more than short, simple instructions; making simple
work-related decisions, with few workplace changes; engaging in no more than
occasional contact with the general public, in brief, superficial, and incidental ways;
No. 19-1394 Page 4
engaging in no more than occasional contact with supervisors and coworkers; and
working in proximity to others, but with no shared or so-called “tandem” tasks. The
vocational expert opined that this person could perform Urbanek’s past work as a
production assembler, and alternatively could work as a housekeeping cleaner, mail
clerk, or routing clerk.
The ALJ applied the familiar five-step analysis, see 20 C.F.R. § 404.1520(a), and
concluded that Urbanek was not disabled. She determined that Urbanek had not
engaged in substantial gainful activity since his alleged onset date in September 2014
(step 1); that he suffered from severe impairments—obstructive sleep apnea, obesity,
degenerative disk disease, Tourette’s syndrome/tic disorder, insomnia, and depressive
disorder—within the meaning of the regulations, see 20 C.F.R. § 404.1520(c) (step 2); and
that these impairments did not meet a listing for presumptive disability (step 3).
Between steps 3 and 4, the ALJ determined that Urbanek had the requisite residual
functional capacity to perform light work with certain limitations (simple routine tasks
with no more than short, simple instructions; simple decision making; few workplace
changes; only occasional contact with the public of a brief, superficial, and incidental
nature; only occasional interactions with supervisors and coworkers; and the ability to
work in proximity to others but with no shared or tandem tasks).
In assessing Urbanek’s residual functional capacity, the ALJ acknowledged his
reported difficulty with attention and concentration but noted that he was able to
concentrate sufficiently to perform many tasks. Specifically, he could drive 27 miles
each way to work, prepare simple meals, help mow the lawn and shovel snow, watch
television, attend baseball games, use a computer, and manage his own finances. The
ALJ afforded the opinion of Dr. Rozenfeld “great weight,” gave “some weight” to
certain reports from Urbanek’s treating physicians and the agency psychologists, and
gave little weight to the remaining reports from Urbanek’s treating physicians. The ALJ
observed that despite Urbanek’s ongoing complaints of fatigue and poor concentration,
his doctors characterized him as alert, cooperative, engaged, and having normal or even
“excellent” recall. The ALJ concluded that Urbanek’s testimony regarding the severity
or frequency of his symptoms was not consistent with the totality of the evidence.
At step 4, the ALJ relied on the vocational expert’s testimony to conclude that
Urbanek could perform his past work as a production assembler. At step 5, she again
relied on the vocational expert’s testimony to conclude that he could perform other jobs
available in the national economy (as a cleaner, mail clerk, or routing clerk).
The Appeals Council denied review, and so the ALJ’s decision was the
Commissioner’s final decision. See Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019).
No. 19-1394 Page 5
The district court upheld the ALJ’s decision. It rejected Urbanek’s arguments that
(1) the ALJ failed to properly account for his limitations in concentration, persistence, or
pace when evaluating his residual functional capacity; and (2) the ALJ improperly
relied on Dr. Rozenfeld’s testimony, which, Urbanek maintains, did not explain how he
was limited by moderate impairments in concentration, persistence, or pace. The court
concluded that Dr. Rozenfeld’s conclusions regarding concentration, persistence, or
pace were supported by her references to progress notes and examination findings in
the record, and that the ALJ reasonably relied on Dr. Rozenfeld’s opinion to justify her
residual-functional-capacity assessment limiting Urbanek to simple, routine tasks with
certain other accommodations for his mental impairments.
II
In this appeal, Urbanek argues again that the ALJ did not adequately account for
his moderate limitations in concentration, persistence, or pace—both in her
residual-functional-capacity assessment and in the hypothetical question to the
vocational expert. The ALJ erred, Urbanek says, by failing to adequately explain how
the limitations in the residual functional capacity and hypothetical question accounted
for his symptoms of fatigue, memory problems, and struggles with concentration.
Specifically, he argues that the limitation to “simple, routine tasks” limited him only to
unskilled work and was unrelated to concentration, persistence, or pace. The remaining
limitations, he says, addressed only “social functioning and adaption,” not
concentration, persistence, or pace.
Though the ALJ need not use any specific terminology, a hypothetical question
must “orient the [vocational expert] to the totality of a claimant’s limitations,” including
moderate deficiencies in concentration, persistence, or pace. Moreno v. Berryhill, 882 F.3d
722, 730 (7th Cir. 2018), as amended on reh'g (Apr. 13, 2018) (citing O'Connor-Spinner v.
Astrue, 627 F.3d 614, 619 (7th Cir. 2010)) (alteration in original); see also Winsted v.
Berryhill, 923 F.3d 472, 476 (7th Cir. 2019), as amended on denial of reh’g (Apr. 3, 2019).
Often, “employing terms like ‘simple, repetitive tasks’ on their own will not necessarily
exclude from the [vocational expert’s] consideration those positions that present
significant problems of concentration, persistence and pace.” O’Connor-Spinner, 627 F.3d
at 620. But we will let stand “an ALJ’s hypothetical omitting the terms ‘concentration,
persistence [or] pace’ when it was manifest that the ALJ’s alternative phrasing
specifically excluded those tasks that someone with the claimant’s limitations would be
unable to perform.” Id. at 619.
Here, the ALJ adequately accounted for Urbanek’s limitations in concentration,
persistence, or pace. Even generic limitations, such as limiting a claimant to simple,
No. 19-1394 Page 6
repetitive tasks, may properly account for moderate limitations in concentration,
persistence, and pace, so long as they “adequately account for the claimant’s
demonstrated psychological symptoms” found in the record. See Jozefyk, 923 F.3d at 498;
see also O’Connor-Spinner, 627 F.3d at 619 (summarizing similar cases); Johansen
v. Barnhart, 314 F.3d 283, 288–89 (7th Cir. 2002). Although the ALJ did not explicitly
mention “moderate limitations in concentration, persistence, or pace” in her
residual-functional-capacity assessment or in the hypothetical question, she
appropriately relied on Dr. Rozenfeld’s testimony to formulate Urbanek’s residual
functional capacity. Indeed, the ALJ included all the doctor’s proposed limitations in
the residual functional capacity and the hypothetical. Dr. Rozenfeld’s testimony is itself
evidence that the ALJ may rely on, and it is consistent with the opinions of the agency
psychologists and Urbanek’s own doctors. An expert’s opinion that is supported by two
agency doctor opinions is “an adequate evidentiary foundation” to support a
residual-functional-capacity assessment. See White v. Barnhart, 415 F.3d 654, 659 (7th Cir.
2005); see also Johansen, 314 F.3d at 288–89. After reviewing the totality of his medical
records, Dr. Rozenfeld acknowledged Urbanek’s moderate limitations. But the doctor
also concluded that the record did not support the severity of Urbanek’s self-reported
symptoms and that his concentration was sufficient to complete simple routine tasks
accounting for the limitations mentioned above. Thus, the limitations, though phrased
in general terms, are properly supported by Dr. Rozenfeld’s testimony.
The additional limitations that Urbanek argues should have been included are
not supported by medical evidence in the record. See Yurt v. Colvin, 758 F.3d 850, 857
(7th Cir. 2014). Urbanek points to self-reported symptoms that his own treating
physicians could not confirm—difficulty concentrating for extended periods, inability
to complete a normal workday, and problems with memory loss and cognitive delay.
Urbanek faults the ALJ for not including those symptoms. But his doctors observed that
he appeared alert and oriented and had normal-to-excellent recall. The record also
shows that, despite Urbanek’s complaints, to his treating doctors, of difficulties with
concentration and fatigue, several of his treating physicians believed he could work: he
had kept a part-time job for many years (and a full-time job for many years before
requesting a voluntary layoff) without performance-related issues; he could drive 27
miles each way to work; and he engaged in many simple routine tasks on a daily basis.
Further, although Urbanek faults the ALJ for not including limitations requiring a
structured environment and accounting for his distractibility by others, she in fact
limited him to only occasional interactions with others, no shared or tandem work, and
few workplace changes.
No. 19-1394 Page 7
Urbanek also more explicitly contends that the hypothetical should have
addressed his inability to (1) complete a normal workday without interruptions from
his symptoms and (2) consistently work without unreasonably numerous and lengthy
breaks. To be sure, the agency doctors checked boxes stating that Urbanek had
moderate limitations in these two areas, but they concluded in their narrative opinions
that he could sustain the basic mental demands of unskilled work if he were limited to
performing simple tasks in a structured work environment. Urbanek argues that the
ALJ incorrectly relied solely on agency doctors’ narrative summaries. Although
checklist observations cannot be ignored, they are “perhaps less useful to an ALJ” than
a doctor’s narrative summary and do not outweigh the narrative opinions. Varga v.
Colvin, 794 F.3d 809, 816 (7th Cir. 2015). Here, the agency doctors’ narrative conclusions,
which the ALJ gave only some weight, translate their residual-functional-capacity
recommendations and are consistent with Dr. Rozenfeld’s testimony, to which the ALJ
gave great weight.
Urbanek also challenges Dr. Rozenfeld’s testimony as unreliable because it failed
to account for all his limitations. First, he argues that Dr. Rozenfeld did not account for
Urbanek’s difficulties with fatigue, memory loss, need for unscheduled breaks, and
inability to complete a normal workday. But he again cites only medical records in
which his treating physicians simply wrote down his self-reported symptoms, or
medical records that the ALJ gave little weight. Second, he argues that Dr. Rozenfeld
did not properly consider his sleep apnea, insomnia, and depression and the resulting
implications for his work pace. But she specifically cited Urbanek’s depression and
sleep disorders as impairments before opining on his functional limitations. Third,
Urbanek argues that Dr. Rozenfeld was never specifically asked by the ALJ to include
limitations associated with concentration, persistence, or pace. But she opined that he
was moderately limited in that area and then immediately stated her recommendation
about his functional limitations. Urbanek provides no convincing reason to question
Dr. Rozenfeld’s opinion, and we will not “reweigh the evidence.” Yurt, 758 F.3d at 856–
57.
AFFIRMED