Virgil Lockett v. Andrew Saul ( 2020 )

NONPRECEDENTIAL DISPOSITION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
Submitted November 2, 2020*
Decided November 3, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-1564
VIRGIL LOCKETT, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 19-cv-1183-GCS
ANDREW M. SAUL, Gilbert C. Sison,
Commissioner of Social Security, Magistrate Judge.
Defendant-Appellee.
ORDER
Virgil Lockett challenges the denial of his application for supplemental security
income. He contends that the administrative law judge neglected to consider his
limitation in maintaining pace and improperly relied on an altered transcript of a
previous hearing. But because the ALJ supported her decision with substantial
evidence, and Lockett’s claim of evidence tampering is unsubstantiated, we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-1564 Page 2
In 2012, Lockett, then 43 years old, applied for social security benefits, claiming
that he had been unable to work since 2009, when he injured his back at work. He later
asserted that anxiety also disables him. The Social Security Administration denied his
application at each stage. In 2016, however, a district court remanded the case for
further consideration of a consultative examiner’s findings. The agency again denied his
application, and this time the district court upheld the decision. Lockett now appeals.
Because Lockett meaningfully challenges only the ALJ’s assessment of his mental
limitations, we focus on that aspect of his medical history. Lockett has received
treatment for anxiety and depression since at least 2012 from his primary care
physicians: family-medicine doctors Dr. Susan Reynolds (in 2012) and Dr. Miguel
Granger (from 2013 onward). In December 2012, Dr. Reynolds saw Lockett for anxiety
related to his chronic back pain. She noted that Xanax (which, apparently, he had been
prescribed earlier) helped control his symptoms, which occurred daily and included
“anxious/fearful thoughts [and] depressed mood.” Starting in October 2013, Lockett
regularly saw Dr. Granger for what appear to be routine follow-up visits. Dr. Granger
prescribed Viibryd and later sertraline, which Lockett has taken since 2015.
Steven Vincent, Ph.D., a clinical psychologist acting as an agency consultant, who
examined Lockett in 2013 and again in 2017, found at most moderate limits in any area
of mental functioning. In December 2013, Lockett complained of symptoms including
anxiety, worry, and poor sleep, but he denied problems with concentration and
memory. Dr. Vincent found mild or moderate limits in all aspects of following
instructions and interacting with others, resulting from anxiety over chronic pain and
unemployment. In July 2017, Dr. Vincent found Lockett slightly less impaired. He had
anxiety symptoms, depressed mood, feelings of hopelessness and worthlessness, and
fear of increased pain. Dr. Vincent listed poor concentration as a symptom but noted
that Lockett denied disturbances in concentration and memory. This time, Dr. Vincent
found only mild limitations in all aspects of following instructions and interacting with
others. He concluded that Lockett suffered from anxiety, depression, and somatic
symptom disorder related to his excessive thoughts about pain and physical limitations.
At an April 2014 hearing before an ALJ, Dr. James Reid, a clinical psychologist
testifying as a medical expert, stated that Lockett suffered from depression and
generalized persistent anxiety. He concluded that Lockett was mildly impaired in
activities of daily living; moderately impaired in social function; and moderately
impaired in concentration, persistence, and pace. He further opined that Lockett should
No. 20-1564 Page 3
be restricted to a simple, repetitive, routine work environment with only occasional
interaction with the public. (Lockett did not testify about his mental functioning.)
After the district court remanded the case, a new ALJ held a second hearing in
November 2017 and heard testimony from Lockett and Laverne Gee, a friend who
described herself as Lockett’s caregiver. Lockett testified that his anxiety “just makes it
hard … to be someplace for any period of time.” He also described recently earning an
associate’s degree, primarily online, in an effort “to help with [his] personality and
communicate with people.” Lockett further testified about panic attacks he had
experienced while driving on the highway. Gee testified that she regularly took Lockett
grocery shopping and that he could not tolerate remaining inside a crowded store but
would flee and abandon his cart of groceries.
The ALJ determined that Lockett was not disabled. As relevant here, she found
that he had the severe impairments of generalized anxiety disorder, depressive
disorder, and somatic symptom disorder. But she ultimately concluded that, although
he could not do his past work, he could perform other jobs that a vocational expert had
testified were available in the national economy to someone with his residual functional
capacity. With respect to his mental impairments, he could carry out instructions for
simple, routine, repetitive tasks; make simple work-related decisions in a routine
environment with no more than occasional changes; interact at most frequently with co-
workers and never with the public; and never drive for work. The ALJ adopted all the
limitations that Dr. Reid had recommended plus the restriction on interacting with the
public, which was based on Lockett’s and Gee’s testimony. But she did not fully credit
Lockett’s allegations about the severity of his anxiety, citing his ability to relate to
family and friends and interact with classmates, professors, and medical professionals.
She also noted Lockett’s limited history of mental health treatment: medication and
primary care visits, but no specialist care, counseling, or hospitalization.
The Appeals Council denied review, and the district court upheld the ALJ’s
decision. In our de novo review, we ask whether the ALJ’s decision is supported by
substantial evidence—that is, “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
On appeal, Lockett primarily argues that his medical conditions and medication
side-effects prevent him from maintaining pace over a full work week and that the ALJ
failed to account for this limitation in his residual functional capacity. He cites Crump v.
Saul, in which we stated that “observing that a person can perform simple and
No. 20-1564 Page 4
repetitive tasks says nothing about whether the individual can do so on a sustained
basis.” 932 F.3d 567, 570 (7th Cir. 2019).1
But substantial evidence supports the ALJ’s determination that Lockett had only
moderate limitations in concentration, persistence, and pace, which the ALJ accounted
for. The residual functional capacity incorporated all mental-health restrictions
recommended in any medical opinion in the record. See Rice v. Barnhart, 384 F.3d 363,
370 (7th Cir. 2004). And the medical expert (Dr. Reid) testified that Lockett could work
in a “simple, repetitive, routine work environment with only occasional interaction with
the public.” The ALJ was entitled to rely on this opinion. Id.
On the other hand, Lockett points to no evidence that compelled a finding that he
required more restrictions than Dr. Reid recommended. Although Lockett testified that
anxiety and panic attacks impair his concentration and ability to complete activities, the
ALJ concluded that his account was not fully consistent with his recent completion of a
college degree and behavior at medical examinations. Lockett does not challenge this
determination on appeal. Further, he points to no evidence of any limitations specific to
pace. A moderate rating in maintaining concentration, persistence, and pace means the
claimant is so limited in at least one of those areas, not necessarily all three. See 20 C.F.R.,
Part 404, Subpart P, App. 1, § 12.00(F)(3)(f).2 So Lockett cannot show a need for pace-
specific restrictions in his residual functional capacity simply because of the “moderate”
designation; he must have evidence of that need, and he cites none. Finally, Lockett’s
reliance on Crump v. Saul is misguided: in Crump, the ALJ had disregarded the treating
physician’s opinion about the claimant’s limitations. 932 F.3d at 571. Here, no doctor
opined that Lockett had restrictions beyond those the ALJ found.
Next, Lockett argues that the transcript of his first administrative hearing was
incomplete. He asserts that in 2014, Dr. Reid testified that Lockett should never be
1 To the extent Lockett argues that the ALJ failed to address his physical ability to
sustain work activities for a prolonged period, we note that (1) “pace” is an area of
mental functioning, 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(E)(3), and (2) a residual
functional capacity determination, by definition, addresses what activities a claimant
can sustain over the course of a work week. See 20 C.F.R. § 404.1545(b). Further, Lockett
also points to no evidence in the record suggesting that he is physically unable to
sustain work for a full week.
2 These regulations took effect in January 2017 and apply to claims that were
pending at that time. 81 Fed. Reg. 66138, 66138, 66165 (Sept. 26, 2016).
No. 20-1564 Page 5
around other people but that this statement has been removed from the transcript. He
offers as evidence his own recollection and the presence of dashes and the words
“phonetic” and “inaudible” in the transcript. The ALJ appropriately rejected Lockett’s
uncorroborated recollection because she saw no evidence of tampering. Further,
restricting Lockett to no contact with others would have been inconsistent with
Dr. Reid’s testimony that Lockett had only moderately impaired social interaction.
Finally, the common transcriptionist’s notations do not suggest irregularity; in any case,
Dr. Reid’s testimony contains very few—and none that could indicate that a sentence or
more was omitted.
Lockett further argues that the ALJ should not have even considered the expert
testimony from the first hearing, which by then was several years old. But the ALJ
explicitly accounted for the age of the testimony when drawing her conclusions. Lockett
filed his claim in 2012, so evidence from 2014 remained relevant, and nothing prevents
an ALJ from considering evidence from a pre-remand hearing. See 20 C.F.R. § 404.983;
Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir. 2009).
Finally, Lockett argues that the district court (not the ALJ) misstated his age as 49
when he is over 50 and that, under the Medical Vocational Guidelines, he is disabled at
his real age. But the court correctly considered Lockett’s age at the time of the ALJ’s
decision. In any case, it appears that a 51-year-old with a high school education and the
ability to perform light work is not disabled under the Guidelines. See 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Rule 202.13.
We have considered Lockett’s other arguments (except those raised for the first
time in his reply brief, see Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018)), and they
are without merit.
AFFIRMED