Louquetta O'Connor-S v. Michael Ast

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4083
L OUQUETTA R. O’C ONNOR-SPINNER,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of
Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:06-cv-00171-DFH-WGH—David F. Hamilton, Judge.
____________
A RGUED JULY 8, 2010—D ECIDED N OVEMBER 29, 2010
____________
Before B AUER, R IPPLE and K ANNE, Circuit Judges.
R IPPLE, Circuit Judge. Louquetta R. O’Connor-Spinner
appeals the order of the district court upholding the Social
Security Administration’s denial of her 2004 application
for Supplemental Security Income and Disability Insurance
Benefits. Ms. O’Connor-Spinner principally contends
that the Administrative Law Judge (“ALJ”), who denied
her application for benefits, erred by failing to include her
2 No. 09-4083
moderate limitation on concentration, persistence and pace
in the hypothetical he posed to a vocational expert (“VE”).
She submits that this omission yielded flawed vocational
evidence and an unsupported conclusion that she
could obtain competitive employment. Ms. O’Connor-
Spinner also contends that the ALJ failed to consider
evidence of an additional social limitation. For the reasons
set forth in this opinion, we reverse the judgment of the
district court and remand this case for further proceedings
before the agency.
I
BACKGROUND
A.
Ms. O’Connor-Spinner, who is presently forty-one,
suffers from depression and a variety of physical ailments.
We focus here on the evidence of Ms. O’Connor-Spinner’s
depression 1 and do not recite the ample evidence of her
physical impairments—degenerative disc disease, bilateral
carpal tunnel syndrome, sleep apnea, restrictive lung
disease and obesity 2 —because the parties agree on the
significance of the physical impairments.
1
In her application for benefits, Ms. O’Connor-Spinner also
claimed that she suffers from bipolar disorder, but we, like the
ALJ, the district court and the parties on appeal, focus on the
record evidence of depression.
2
Initially, Ms. O’Connor-Spinner also claimed arthritis and a
blood disorder.
No. 09-4083 3
The application for benefits underlying this appeal was
filed in January 2004. In her application, Ms. O’Connor-
Spinner claimed that increasingly severe physical and
mental impairments left her unable to perform her past
work as a delicatessen clerk, nurse’s aide, shoe gluer or
fast-food worker. She maintained that these impairments
also prevented her from performing other work in the
national economy.
Ms. O’Connor-Spinner’s benefit application alleges an
onset date for her depression of December 2003. How-
ever, her documentary evidence indicates that, even prior
to that date, physicians investigating her physical ailments
had observed signs of depression and discovered a medical
history of depression and treatment with prescription
antidepressants. Ms. O’Connor-Spinner had visited a
community mental-health center for treatment of her
depression three times during 2002, but after those visits,
the center lost contact with her. Ms. O’Connor-Spinner
previously had applied for disability benefits in 2001;
however, a state-agency physician who reviewed her file
in October 2002 concluded that her mental impairments,
at that time, were not sufficiently severe.
Medical records from the years 2004 and 2005 document
treatment for Ms. O’Connor-Spinner’s physical ailments
and only allude to her history of depression and prescrip-
tions for antidepressants. The administrative record does
not contain treatment records from mental-health provid-
ers after 2002.
In order to develop the record of Ms. O’Connor-Spinner’s
depression and related limitations, the state agency
4 No. 09-4083
requested that Dr. Kamla Paul, a psychologist, examine
her in May 2004. Ms. O’Connor-Spinner told Dr. Paul
that in the past she had experienced confusion, crying fits,
violent outbursts (which included hitting her husband
and pulling a knife on him) and attempts at suicide.
Dr. Paul identified antidepressants among her medica-
tions. According to Dr. Paul, many of Ms. O’Connor-
Spinner’s abilities, such as abstraction and remote-memory
access, were adequate. Her immediate memory and
general information, however, were poor, and she
suffered from a dysphoric mood and flat affect. Dr. Paul
reiterated that Ms. O’Connor-Spinner “gets confused”
and diagnosed her with depression. A.R. at 249-50.
Later that month, a different state-agency psychol-
ogist, Dr. D. Unversaw, reviewed Ms. O’Connor-Spinner’s
file. Dr. Unversaw concluded that Ms. O’Connor-Spin-
ner’s depression caused a moderate limitation on concen-
tration, persistence and pace. The report by Dr. Unversaw
also concluded, without elaboration, that this limitation
would not prevent Ms. O’Connor-Spinner from performing
moderately complex tasks. Dr. Unversaw checked a
box, on another section of the form, indicating a limitation
on receiving instructions and responding appropriately
to supervisors. In addition, Dr. Unversaw summarized
a third-party statement from Ms. O’Connor-Spinner’s
mother that Ms. O’Connor-Spinner responds to the rude-
ness of others by becoming rude herself.
The Social Security A dm inistration denied
Ms. O’Connor-Spinner’s claim, initially in March 2004 and
on reconsideration in July 2004. Ms. O’Connor-Spinner
timely requested a hearing before an ALJ.
No. 09-4083 5
B.
1.
At a hearing before the ALJ in January 2006,
Ms. O’Connor-Spinner testified that she frequently thought
about suicide, sometimes went on eating binges or slept for
days at a time, and rarely left her home. She admitted that
she had failed to procure the most recent records of
her mental-health treatment, but her attorney agreed to
update the record, which the ALJ held open for thirty days.
The additional mental-health records, however, never were
submitted.
William Cody, a VE who was familiar with Ms.
O’Connor-Spinner’s work history but not her medical
history, also testified at the hearing. The ALJ asked
Mr. Cody to consider whether a hypothetical worker with
certain limitations could perform Ms. O’Connor-Spinner’s
past work or other work in the national economy. In doing
so, the ALJ posed a series of increasingly restrictive
hypotheticals. The most restrictive hypothetical included
Ms. O’Connor-Spinner’s physical limitations, restricting
her to sedentary work with breaks for stretching every
thirty minutes, frequent (but not constant) handling or
fingering, and no concentrated exposure to a variety of
environmental irritants. The hypothetical worker could
exert ten pounds of force occasionally and five pounds
frequently and would face additional limitations
for prolonged walking and postural activities like crouch-
ing or crawling. Further, the hypothetical worker was
restricted to routine, repetitive tasks with simple instruc-
tions. The most restrictive hypothetical question did
6 No. 09-4083
not, however, include a limitation on concentration,
persistence and pace, although later in his written decision
the ALJ listed this limitation in assessing Ms. O’Connor-
Spinner’s residual functional capacity (“RFC”). Neither
did the ALJ include any limitation on receiving instruction
and responding appropriately to supervisors.
Mr. Cody testified that a person with the limitations
specified in the hypothetical could not perform
Ms. O’Connor-Spinner’s past work as a delicatessen clerk,
nurse’s aide, shoe gluer or fast-food worker, but could
adjust to work as a sedentary cashier, hand packer
or telephone solicitor. For a sedentary cashier, the VE
estimated that 200 jobs were available in the region; for a
hand packer, the number was 75, and for a telephone
solicitor, 100.
After considering the evidence, the ALJ concluded that
Ms. O’Connor-Spinner was not disabled. In so finding,
the ALJ applied the standard five-step analysis. See
20 C.F.R. §§ 404.1520, 416.920. The ALJ determined that
Ms. O’Connor-Spinner had not engaged in substantial
gainful activity since December 2003 (step one); suffered
from severe impairments as a result of degenerative
disc disease, bilateral carpal tunnel syndrome, sleep apnea,
restrictive lung disease, obesity and depression (step two);
did not have any impairments that met or equaled
the listings (step three); could no longer perform
her former jobs (step four); but could do other jobs and
thus was not disabled (step five).
No. 09-4083 7
2.
The Appeals Council declined review in October 2006.
Ms. O’Connor-Spinner then filed this action seeking
judicial review in the district court, and the court upheld
the ALJ’s decision in December 2007. In January 2008, Ms.
O’Connor-Spinner filed a motion to alter or amend the
judgment, which the district court denied in November
2009.
II
DISCUSSION
A.
Because the Appeals Council denied Ms. O’Connor-
Spinner’s request for review, the ALJ’s ruling is the final
decision of the Commissioner of Social Security. See
Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). We
review that determination directly, rather than deferring to
the decision of the district court. Id. In reviewing the
ALJ’s decision, we examine whether it is supported by
substantial evidence. See 42 U.S.C. § 405(g); Getch v. Astrue,
539 F.3d 473, 480 (7th Cir. 2008). An ALJ need not specifi-
cally address every piece of evidence, but must provide
a “logical bridge” between the evidence and his conclu-
sions. Getch, 539 F.3d at 480; Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000).
B.
Ms. O’Connor-Spinner presents two challenges on
appeal.
8 No. 09-4083
1.
First, Ms. O’Connor-Spinner contends that the ALJ erred
in omitting her moderate limitation on concentration,
persistence and pace from the hypothetical posed to
the VE, even though the ALJ found that such a limita-
tion exists. The Commissioner concedes the general
principle that the hypothetical must account for all limita-
tions, but contends that the ALJ implicitly incorporated
all limitations into the question by confining the hypotheti-
cal worker to routine, repetitive tasks with simple instruc-
tions. For the reasons that follow, we conclude that
the ALJ’s hypothetical did not supply the VE with informa-
tion adequate to determine whether Ms. O’Connor-Spinner
could perform jobs in the national economy.
Our cases generally have required the ALJ to orient the
VE to the totality of a claimant’s limitations.3 Among
the limitations the VE must consider are deficiencies of
concentration, persistence and pace. Stewart v. Astrue,
561 F.3d 679, 684 (7th Cir. 2009); Kasarsky v. Barnhart,
335 F.3d 539, 544 (7th Cir. 2003); Steele v. Barnhart, 290
F.3d 936, 942 (7th Cir. 2002). 4 Our cases, taken together,
3
Simila v. Astrue, 573 F.3d 503, 520 (7th Cir. 2009); Indoranto v.
Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); Young v. Barnhart, 362
F.3d 995, 1003 (7th Cir. 2004); Steele v. Barnhart, 290 F.3d 936, 942
(7th Cir. 2002); accord Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005); Boyd v. Apfel, 239 F.3d 698, 706-07 (5th Cir. 2001);
Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).
4
Accord Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004);
Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002); Newton v.
Chater, 92 F.3d 688, 695 (8th Cir. 1996).
No. 09-4083 9
suggest that the most effective way to ensure that the VE
is apprised fully of the claimant’s limitations is to include
all of them directly in the hypothetical.
We have not insisted, however, on a per se requirement
that this specific terminology (“concentration, persistence
and pace”) be used in the hypothetical in all cases. We
sometimes have assumed a VE’s familiarity with a claim-
ant’s limitations, despite any gaps in the hypothetical,
when the record shows that the VE independently re-
viewed the medical record or heard testimony directly
addressing those limitations.5 This exception to the general
rule, however, does not apply where, as here, the
ALJ poses a series of increasingly restrictive hypotheticals
to the VE, because in such cases we infer that the
VE’s attention is focused on the hypotheticals and not
on the record. See Simila v. Astrue, 573 F.3d 503, 521 (7th
Cir. 2009); Young v. Barnhart, 362 F.3d 995, 1003 (7th
Cir. 2004). In any event, no evidence exists here that the VE
reviewed Ms. O’Connor-Spinner’s medical history, as
opposed to just her work history, or heard testimony about
the limitation.
We also have let stand an ALJ’s hypothetical omitting the
terms “concentration, persistence and pace” when it was
manifest that the ALJ’s alternative phrasing specifically
excluded those tasks that someone with the claimant’s
5
See Simila, 573 F.3d at 521; Young, 362 F.3d at 1003; Steele, 290
F.3d at 942; Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995);
Ehrhart v. Sec’y of Health & Human Servs., 969 F.2d 534, 540
(7th Cir. 1992).
10 No. 09-4083
limitations would be unable to perform. We most often
have done so when a claimant’s limitations were stress- or
panic-related and the hypothetical restricted the claimant
to low-stress work. For instance, in Johansen v. Barnhart,
314 F.3d 283 (7th Cir. 2002), we let stand a hypothetical
formulated in terms of “repetitive, low-stress” work,
a description that excluded positions likely to trigger
symptoms of the panic disorder that lay at the root of
the claimant’s moderate limitations on concentration,
persistence and pace. Id. at 285, 288-89. Similarly, in
Arnold v. Barnhart, 473 F.3d 816, 820, 823 (7th Cir. 2007),
we upheld a hypothetical that restricted the claimant
to low-stress, low-production work when the claimant’s
difficulties with concentration, persistence and pace
arose from stress-induced headaches, frustration and
anger. See also Sims v. Barnhart, 309 F.3d 424, 427, 431-32
(7th Cir. 2002) (finding VE’s inquiry into low-stress,
uncomplicated work accounted for limitations arising
partly from panic disorder).
Some hypotheticals which we have allowed have pre-
sented closer questions. For instance, in Simila v.
Astrue, 573 F.3d 503, 522 (7th Cir. 2009), the claimant’s
“moderate difficulties with concentration, persistence, and
pace stemmed from his chronic pain syndrome and
somatoform disorder.” Although the limitations
on concentration, persistence and pace were not mentioned
in the hypothetical, the underlying conditions were. Id.
at 522. On the facts of that case, the link between the
claimant’s pain and his concentration difficulties
was apparent enough that incorporating those difficulties
by reference to his pain was consistent with the
general rule, albeit just barely so. Although we allowed the
No. 09-4083 11
hypothetical, we noted that its failure to include specifi-
cally these limitations was “troubling.” Id. at 521.
In most cases, however, employing terms like “simple,
repetitive tasks” on their own will not necessarily exclude
from the VE’s consideration those positions that present
significant problems of concentration, persistence and
pace. Stewart, 561 F.3d at 684-85 (limiting hypothetical
to simple, routine tasks did not account for limitations
of concentration, persistence and pace); see also Craft
v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (restricting
hypothetical to unskilled work did not consider difficulties
with memory, concentration or mood swings); Ramirez
v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004) (allowing VE to
consider only one- or two-step tasks did not account
for limitations of pace); Kasarsky, 335 F.3d at 544 (phrasing
hypothetical question as involving an individual of border-
line intelligence does not account for limitations of concen-
tration). The ability to stick with a given task over
a sustained period is not the same as the ability to learn
how to do tasks of a given complexity. Stewart, 561 F.3d
at 684-85; Craft, 539 F.3d at 677; Kasarsky, 335 F.3d at
544; see also SSR 85-15, 1985 WL 56857 (1985) (“Because
response to the demands of work is highly individualized,
the skill level of a position is not necessarily related to
the difficulty an individual will have in meeting
the demands of the job. A claimant’s [mental] condition
may make performance of an unskilled job as difficult as
an objectively more demanding job.”).
The Commissioner, however, relies upon Simila, Johansen,
Sims and Jens v. Barnhart, 347 F.3d 209 (7th Cir. 2003), for
12 No. 09-4083
the broad proposition that an ALJ may account generally
for moderate limitations on concentration, persistence or
pace by restricting the hypothetical to unskilled work.
The Commissioner reads these cases too broadly.
We already have explained why Simila, Johansen and Sims
are distinguishable from this case and do not conflict with
the general rule. Jens is inapposite; in that case, the
ALJ expressly listed the claimant’s limitation on concentra-
tion in the hypothetical posed to the VE. 347 F.3d at 211.
Unlike in Johansen and similar decisions, in the present
case it is not clear whether the hypothetical, which in-
cluded a restriction to repetitive tasks with simple instruc-
tions, would cause the VE to eliminate positions
that would pose significant barriers to someone with the
applicant’s depression-related problems in concentration,
persistence and pace. The state examiner’s RFC determina-
tion explicitly noted that there were at least moderate
limitations here, and the ALJ agreed with that determina-
tion. As discussed, limiting a hypothetical to simple,
repetitive work does not necessarily address deficiencies
of concentration, persistence and pace.
We acknowledge that there may be instances where a
lapse on the part of the ALJ in framing the hypothetical
will not result in a remand. Yet, for most cases, the ALJ
should refer expressly to limitations on concentration,
persistence and pace in the hypothetical in order to focus
the VE’s attention on these limitations and assure review-
ing courts that the VE’s testimony constitutes substantial
evidence of the jobs a claimant can do. In this case, a
remand is required.
No. 09-4083 13
2.
In Ms. O’Connor-Spinner’s second challenge she claims
that it was incumbent on the ALJ to explain whether and to
what extent he considered a social limitation that
Ms. O’Connor-Spinner contends wrongly was ignored.
We agree that the ALJ should clarify his position on
remand, although the omission, standing alone, might
not have supported a remand.
The reviewing psychologist, Dr. Unversaw, found a
moderate limitation on “[t]he ability to accept instructions
and respond appropriately to criticism from supervi-
sors.” A.R. at 266. As the Commissioner has
explained before, even a moderate limitation on respond-
ing ap propriately to sup ervisors may under-
mine seriously a claimant’s ability to work. 20 C.F.R.
§ 404.1545(c); SSR 85-15. The ALJ did not include
this limitation in the hypothetical he posed to the VE,
nor does he discuss it explicitly in his decision. An
ALJ must explain why he does not credit evidence
that would support strongly a claim of disability,
or why he concludes that such evidence is outweighed
by other evidence. Giles ex rel. Giles v. Astrue, 483 F.3d
483, 488 (7th Cir. 2007); Zurawski v. Halter, 245 F.3d
881, 888-89 (7th Cir. 2001). Therefore, the ALJ should
explain whether he credits the reviewing psycholo-
gist’s finding and, if so, should account for this information
in the new hypothetical.
The Commissioner protests that the ALJ was entitled
to disregard the finding without comment because
it appears only in the “Summary Conclusions” section
14 No. 09-4083
of Dr. Unversaw’s evaluation and is not repeated in the
“Functional Capacity Assessment” section. According
to the Commissioner’s view, the former section is
simply a worksheet prepared en route to furnishing
the latter, and thus lacks evidentiary value. The ALJ’s
decision, however, refers to, and appears to give weight
to, evidence from both parts of the form. Because the ALJ
did consider both parts of the form in making his
decision, we need not decide today whether an ALJ
may ignore entirely the worksheets of a reviewing psychol-
ogist.
Ms. O’Connor-Spinner also points to a statement,
made by her mother and recounted by Dr. Unversaw,
that she can respond to other people’s rudeness by becom-
ing rude herself. Ms. O’Connor-Spinner has not
shown what this statement, if credited, adds to her case.
Nevertheless, the ALJ is free to address this statement
on remand if he considers it appropriate to do so.
Conclusion
We conclude that the ALJ failed to direct the VE to the
totality of Ms. O’Connor-Spinner’s limitations, thus
leaving unsupported the determination that someone
with her limitations could perform work in the
national economy. We further conclude that the ALJ
did not address potentially important evidence
that Ms. O’Connor-Spinner has difficulty taking instruc-
tions and responding appropriately to supervisors. Accord-
ingly, the judgment of the district court is reversed, and
No. 09-4083 15
this case is remanded to the agency for further proceedings
consistent with this opinion.
R EVERSED and R EMANDED
11-29-10