Andrew Pavlicek v. Andrew Saul

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1809
ANDREW PAVLICEK,
Plaintiff-Appellant,
v.
ANDREW M. SAUL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 19-cv-41-slc — Stephen L. Crocker, Magistrate Judge.
____________________
ARGUED MARCH 3, 2021 — DECIDED APRIL 7, 2021
____________________
Before MANION, WOOD, and ST. EVE, Circuit Judges.
MANION, Circuit Judge. Andrew Pavlicek, a 49-year-old
man whose anxiety manifests in persistent tremors and sei-
zures, sometimes causing him to pass out, challenges his de-
nial of Disability Insurance Benefits and Supplemental Secu-
rity Income. He argues that the administrative law judge
erred by (1) giving inadequate reasons for rejecting the opin-
ion of his treating psychiatrist, (2) affording too much weight
2 No. 20-1809
to the opinions of two non-examining agency physicians, and
(3) posing hypothetical questions to the vocational expert that
failed to account for his limitations in concentration, persis-
tence, and pace. We affirm because, despite Pavlicek’s conten-
tions and some imperfections in the ALJ’s reasoning, the ALJ’s
decision was supported by substantial evidence.
Background
Pavlicek applied for DIB and SSI benefits in early 2015,
alleging that he had become disabled the previous year. As
relevant to this appeal, he suffers from anxiety, depression,
severe tremors, and pseudoseizures (seizures that resemble
epileptic seizures but stem from psychological causes1). A
long-time truck driver, he has a high-school education.
In 2013, Pavlicek began experiencing extreme tremors in
his limbs or convulsions through his entire body, sometimes
with loss of consciousness—all believed to be related to his
anxiety. He was diagnosed with conversion disorder—a con-
dition where neurological symptoms, though real, cannot be
explained by physical evidence.2 The condition manifests it-
self in two ways. One is pseudoseizures, or whole-body con-
vulsions, sometimes with loss of consciousness. Once, for a
period of a few weeks, he experienced a pseudoseizure every
morning. Later, he experienced only around one per month
on average. The other manifestation is tremors (or shaking in
his arms or legs), which over time have become frequent and
severe. Three instances of tremors stand out. Once, at a
1 Understanding Pseudoseizures, Healthline, https://www.health-
line.com/health/pseudoseizures (last visited March 30, 2021).
2 Conversion Disorder, MedlinePlus, https://medlineplus.gov/ency/ar-
ticle/000954.htm (last visited March 30, 2021).
No. 20-1809 3
doctor’s visit, his shaking grew out of control and he was sent
to the emergency room. Another time, while riding in a car
driven by his daughter, he began shaking violently from anx-
iety when she was pulled over for not wearing a seatbelt.
EMTs had to be called to rush him to the hospital, where his
tremors eventually subsided after he received medication.
And once he required treatment for open wounds when his
tremoring leg bashed against a bed.
Pavlicek saw several medical providers about his anxiety
and the resulting tremors and pseudoseizures. In March 2015,
he began receiving supportive psychotherapy from
Dr. Jacqueline Bienek, who observed anxiety that waxed and
waned and described occasional tremors. Dr. Bienek noted
that, even during a tremor, Pavlicek could think coherently
and talk at a normal rate and tone. And she regularly de-
scribed him as mentally “coherent and focused.” Pavlicek saw
Dr. Bienek once or twice per month for over a year.
Beginning in May 2015, Pavlicek also saw Dr. Bababo
Opaneye, a psychiatrist, for medication management and
some counseling. Dr. Opaneye recorded diagnoses of major
depressive disorder, panic disorder, and conversion disorder.
He did not witness tremors during their sessions. Those ses-
sions took place every two or three months and lasted 25 to
45 minutes.
In connection with Pavlicek’s application, two non-exam-
ining agency consultants reviewed his records and deter-
mined that he could function with some limitations. First,
during the initial review in March 2015, Dr. Carlos Jusino-
Berrios determined that Pavlicek had moderate limitations in
social functioning and in concentration, persistence, and pace.
But he found that Pavlicek could still remember basic
4 No. 20-1809
information and simple instructions, could pay attention for
up to two hours at a time, and could perform at a consistent
pace “particularly if [] engaged in [] simple, repetitive tasks.”
In August 2015, at the reconsideration stage, Dr. Therese Har-
ris concurred.
In May 2017, Pavlicek testified at a hearing before an ALJ
about how his anxiety, tremors, and pseudoseizures pre-
vented him from working. He explained that he had constant
tremors “day and night.” (At one point during the hearing,
the ALJ even remarked that the shaking in Pavlicek’s legs was
“real obvious.”) As for pseudoseizures, he reported seven ep-
isodes in the past 16 months when he lost consciousness; in
seven other episodes, he remained conscious.
A vocational expert also testified at the hearing. In re-
sponse to questions about employers’ tolerance for absentee-
ism in unskilled workers, the expert replied that an employee
could be absent no more than 8 to 12 days per year and off-
task no more than 10% of the workday. The ALJ then asked a
series of hypothetical questions about an employee with var-
ious restrictions (i.e., no complex tasks or decisions, no fast-
paced production requirements, limited interaction with oth-
ers, and limited reasoning ability), and in each case the expert
replied that such an employee could not perform Pavlicek’s
past work but could perform other work available in the na-
tional economy (e.g., assembler, packager, and inspector po-
sitions).
The ALJ agreed to hold the record open so that
Dr. Opaneye, the treating psychiatrist, could submit a disabil-
ity report that he was completing. The following month,
Dr. Opaneye submitted his report and opined that Pavlicek
had severe functional limitations and could not work.
No. 20-1809 5
Pavlicek, the doctor said, met Listing 12.04 (“Depressive, bi-
polar and related disorders”)—based on his history of “recur-
rent panic and major depressant disorders” dating back to
2013. Dr. Opaneye rated Pavlicek at the highest level of im-
pairment (precluded for more than 15% of a typical workday)
in 19 of the 20 listed areas of functioning.
Applying the requisite five-step analysis, see 20 C.F.R.
§ 404.1520(a)(4), the ALJ determined that Pavlicek was not
disabled. At step one, the ALJ found that Pavlicek had not
been substantially gainfully employed since his alleged onset
date. At step two, the ALJ determined that Pavlicek’s affective
disorders (major depression disorder, anxiety disorder with
panic attacks, conversion disorder with mixed symptom
presentation including non-neurological pseudoseizures, and
a learning disorder) were all severe impairments. At step
three, the ALJ concluded that none of those impairments
equaled a listed impairment. At step four, the ALJ determined
that Pavlicek retained the residual functional capacity to per-
form medium work with exceptions (as relevant here, that he
be limited to understanding, remembering and carrying out
simple instructions and routine, repetitive tasks; that he only
make simple work-related decisions in an environment with-
out fast-paced production requirements and with few or no
changes in work duties; and that he be limited to only occa-
sional, brief, and superficial interaction with the public and
coworkers, and only occasional interaction with supervisors).
Finally, at step five, the ALJ concluded that Pavlicek could not
perform his past relevant work but, given his residual func-
tional capacity, he could perform other work that existed in
significant numbers in the national economy.
6 No. 20-1809
In reaching these determinations, the ALJ explained that
he largely refused to credit Dr. Opaneye’s opinion. First,
Dr. Opaneye had not justified how his findings could apply
“as far back as 2013,” given that he did not begin treating
Pavlicek until May 2015. Second, Dr. Opaneye relied heavily
on Pavlicek’s own subjective reporting. Third, Dr. Opaneye’s
conclusion that Pavlicek met Listing 12.04 did not square with
the “infrequent” nature of their treatment relationship.
Fourth, Dr. Opaneye’s assessment of severe functional limita-
tions (the “most extreme” in nearly every category asked) was
unsupported by the “great weight of clinical records,” includ-
ing his own treatment notes. The ALJ gave more weight to the
opinions of Dr. Jusino-Berrios and Dr. Harris because he
found them more consistent with the record.
Analysis
I. ALJ’s Treatment of Examining Physician’s Opin-
ion
Pavlicek argues that the ALJ wrongly discounted the opin-
ion of his treating psychiatrist, Dr. Opaneye, that he met List-
ing 12.04 for an Affective Disorder, had serious functional
limitations, and could not obtain competitive work. As a treat-
ing psychiatrist (a designation that the ALJ accepted),
Dr. Opaneye’s opinion was entitled (under the regulations in
effect at the time, see 20 CFR § 404.1527) to controlling weight
unless the ALJ provided “good reasons” for affording it less
weight. 20 C.F.R. § 404.1527(c)(2); Walker v. Berryhill, 900 F.3d
479, 485 (7th Cir. 2018).
Pavlicek argues that the ALJ unreasonably concluded,
without explanation, that Dr. Opaneye’s opinion lacked sup-
port in the record. In Pavlicek’s view, the medical records
No. 20-1809 7
support Dr. Opaneye’s opinion that Pavlicek met Listing
12.04. Specifically, Pavlicek points to his ongoing treatment
for anxiety and depression and his history of tremors causing
emergency room visits, wounds, and difficulty with basic
tasks.
But substantial evidence supports the ALJ’s finding that
the medical records—including Dr. Opaneye’s own records—
undermined the doctor’s opinion. An ALJ may decline to give
a treating physician’s opinion controlling weight when the
opinion is inconsistent with the physician’s treatment notes.
See Schmidt v. Astrue, 496 F.3d 833, 842–43 (7th Cir. 2007). Con-
trary to his June 2017 report, Dr. Opaneye’s notes from each
session with Pavlicek reflected essentially normal cognition.
Specifically, at each visit, Dr. Opaneye found Pavlicek ori-
ented as to person, place, time, and situation and found his
thought process “coherent, logical, goal-directed, [with] asso-
ciations intact.” He described Pavlicek’s attention and concen-
tration as “functionally intact” and observed “no more than
average distractibility” and “no apparent short-term or long-
term memory deficits.” Dr. Opaneye’s June 2017 report, by
contrast, describes an easily distracted patient with impaired
memory and concentration. Dr. Opaneye rated Pavlicek at the
highest level of impairment in, among other things, “main-
tain[ing] attention and concentration for extended periods of
time”; “work[ing] in coordination with or in proximity to oth-
ers without being distracted by them”; and “understand[ing]
and remember[ing] very short and simple instructions.”
That said, two aspects of the ALJ’s reasoning give us
pause, although they do not change our conclusion that sub-
stantial evidence supported discounting Dr. Opaneye’s opin-
ion. First, as Pavlicek points out, the ALJ downplayed the
8 No. 20-1809
significance of Dr. Opaneye’s opinion because their treatment
relationship was “infrequent”:
Dr. Opaneye’s assessment that the claimant satisfied the
requirements of a listing is also inconsistent with his own in-
frequent treatment relationship with the claimant, as he re-
ported that he only met with the claimant for 25 to 45 minutes
every two or three months. This level of follow-up treatment
does not support listing level functional problems.
The inference that the ALJ drew from the frequency of
Pavlicek’s visits with Dr. Opaneye is puzzling. The ALJ sug-
gests that the extreme functional limitations noted by
Dr. Opaneye ought to require follow-up treatment more ex-
tensive and frequent than brief sessions every two or three
months. But Dr. Opaneye never purported to be Pavlicek’s
lone caregiver. On the contrary, he regularly noted that
Pavlicek would benefit from seeing other providers, and he
established a treatment plan that included follow-up appoint-
ments with Pavlicek’s primary-care doctor and neurologist, as
well as “frequent individual therapy.” Dr. Opaneye also con-
sistently encouraged Pavlicek to see a therapist. But although
similar instances of faulty logic by an ALJ have led this court
to vacate a judgment and remand, see, e.g., Scrogham v. Colvin,
765 F.3d 685, 696 (7th Cir. 2014) (reversing where ALJ dis-
counted treating physician’s opinion after ignoring evidence
that would have resolved inconsistency), reversal is not war-
ranted in this case because here, unlike in Scrogham, substan-
tial evidence supported an independent basis for discounting
Dr. Opaneye’s opinion, namely the conflict between
Dr. Opaneye’s 2017 report and his own treatment notes.
The second troubling aspect of the ALJ’s ruling was his de-
cision to discredit Dr. Opaneye’s opinion based on the
No. 20-1809 9
doctor’s failure to justify his conclusion that Pavlicek met List-
ing 12.04 “as far back as 2013,” given that he did not begin
treating Pavlicek until May 2015. Pavlicek characterizes this
conclusion as “myopic,” noting that Dr. Opaneye was on staff
at a medical practice (Ministry Medical) that had other pro-
viders’ records tracing Pavlicek’s tremors back to 2013.
Substantial evidence also does not support this determi-
nation by the ALJ, though this question is close. The ALJ pre-
sumes that Dr. Opaneye had no basis for opining on
Pavlicek’s condition before the beginning of their treatment
relationship in 2015. But the record shows (contrary to the
conclusions of the Commissioner and the district court) that
Dr. Opaneye did consult the records from other providers.
His report referred to episodes that Pavlicek suffered on or
around April 10, 2015; May 14, 2015; and July 29, 2015
(A.R. 1236)—three dates when Pavlicek saw Dr. Bienek.
(A.R. 908, 910, 960.) Had Dr. Opaneye reviewed only his own
treatment records, he could not have known that those dates
were significant. And Dr. Bienek reported that Pavlicek’s
tremors began in 2013. So Dr. Opaneye may in fact have a ba-
sis for saying that Pavlicek could have met the listing “as far
back as 2013.” See Scott v. Astrue, 647 F.3d 734, 739 (7th Cir.
2011) (reversing where ALJ found treating physician’s opin-
ion lacked support in the record but ALJ ignored evidence
that supported the opinion and it was “possible” that the phy-
sician considered that evidence).
But although we question the ALJ’s reasoning in these re-
spects, our concerns do not warrant reversal under this
court’s deferential substantial-evidence review. The ALJ’s
discrediting of Dr. Opaneye’s opinion was supported by sub-
stantial evidence: the stark contrast between Dr. Opaneye’s
10 No. 20-1809
June 2017 report and his treatment notes constitutes “such rel-
evant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019) (internal quotation omitted).
II. ALJ’s Treatment of the Agency Consultants’
Opinions
Pavlicek’s remaining arguments are even less compelling.
He argues, for instance, that the ALJ afforded too much
weight to the agency consultants’ assessments of his residual
functional capacity (RFC)—assessments that he deems inter-
nally inconsistent. In his view, the checklist portion of the
form (rating him as “moderately” limited in areas related to
maintaining concentration and working at a constant pace)
conflicts with the narrative portion (stating that he could
“perform at a consistent pace particularly if is [sic] engaged in
a simple, repetitive tasks [sic]”).
But the ALJ reasonably relied on the narrative RFC be-
cause it was in fact consistent with the “moderate” checklist
ratings. The ALJ must consider whether the consultants’ nar-
rative RFC assessments “adequately encapsulate[d] and
translate[d]” the checklist. See Varga v. Colvin, 794 F.3d 809,
816 (7th Cir. 2015). A “moderate limitation” is defined by reg-
ulation to mean that functioning in that area is “fair.”
20 C.F.R. Pt. 404, Subpt. P, App. 1. As the Commissioner
points out, “fair” in ordinary usage does not mean “bad” or
“inadequate.” So a “moderate” limitation in performing at a
consistent pace seems consistent with the ability to perform
simple, repetitive tasks at a consistent pace. Further, that as-
sessment is consistent with both Dr. Jusino-Berrios’s and
Dr. Harris’s findings that Pavlicek could carry out simple
No. 20-1809 11
instructions and make simple decisions with no significant
limitation.
Pavlicek also argues that the ALJ should not have relied
on Dr. Jusino-Berrios’s 2015 opinion, because it was outdated
in light of his later medical records. Pavlicek alludes to later
episodes related to his tremors—records of two emergency
room visits, the incident when he suffered open wounds after
a tremor bashed his leg against a bed, and a doctor’s observa-
tion that his tremors caused difficulties in functional matters
such as walking and sitting in a chair.
But Dr. Jusino-Berrio’s opinion was not so outdated that
the ALJ had to disregard it. An ALJ must not rely on a physi-
cian’s assessment “if later evidence containing new, signifi-
cant medical diagnoses reasonably could have changed” the
physician’s views. See Moreno v. Berryhill, 882 F.3d 722, 728
(7th Cir. 2018). Dr. Jusino-Berrios already knew, however,
that Pavlicek was experiencing severe tremors, so the later
records corroborating this condition do not necessarily un-
dermine his conclusions. Also, Dr. Jusino-Berrios’s opinion
predated the ALJ hearing by only two years, unlike Moreno,
which involved a seven-year-old assessment undermined by
later records of entirely new symptoms. 882 F.3d at 725, 728–
29. Finally, at the reconsideration stage, Dr. Harris reviewed
the new records and explicitly agreed that the new evidence
supported Dr. Jusino-Berrios’s initial assessment.
III. ALJ’s Hypothetical Question for Vocational Ex-
pert
Finally, Pavlicek challenges two aspects of the hypothet-
ical question that the ALJ posed to the vocational expert. First,
he argues that the ALJ erred in stating that the hypothetical
12 No. 20-1809
individual could follow complex instructions (that is, instruc-
tions with more than two steps, or “GED level two” reason-
ing). Because Dr. Jusino-Berrios and Dr. Harris opined that
Pavlicek could follow only simple instructions (that is, in-
structions with at most two steps, or “GED level one” reason-
ing), Pavlicek argues that the hypothetical question and RFC
should have included a limitation to simple instructions.
But any error was harmless because limiting Pavlicek to
simple instructions would not have changed the ALJ’s deter-
mination. After the vocational expert answered the ALJ’s
question about an individual who could follow complex in-
structions, the ALJ posed another hypothetical question that
mirrored the first except for limiting the hypothetical individ-
ual to simple instructions. Because the expert testified that
this restriction was not work preclusive, the ALJ would have
found Pavlicek able to work regardless of whether the RFC
restricted him to simple or complex instructions.
Pavlicek next argues that the hypothetical question failed
to account for his limitations in maintaining concentration,
persistence, and pace. He points to his history of extreme
tremors in minimally stressful situations and argues that his
tremors would prevent him from concentrating, persisting,
and maintaining pace for a full work week.
But substantial evidence supports the ALJ’s conclusion
that the restrictions in the hypothetical question adequately
addressed Pavlicek’s “moderate” limitations in concentration,
persistence, and pace. The question included the same re-
strictions that Dr. Jusino-Berrios and Dr. Harris stated would
accommodate Pavlicek’s limitations. The ALJ’s reliance on
those medical opinions was permissible. See Burmester v. Ber-
ryhill, 920 F.3d 507, 511 (7th Cir. 2019). And notably, it is
No. 20-1809 13
“unclear what kinds of work restrictions might address
[Pavlicek’s] limitations in concentration, persistence, or pace
because he hypothesizes none.” Jozefyk v. Berryhill, 923 F.3d
492, 498 (7th Cir. 2019).
Accordingly, we AFFIRM the judgment of the district
court.