In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-2894

JOSHUA RAY LANIGAN,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 15-cv-474-bbc — Barbara B. Crabb, Judge.

____________________

ARGUED APRIL 26, 2017 — DECIDED JULY 26, 2017 —

OPINION ISSUED JULY 31, 2017*

____________________

Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit 

Judges.

SYKES, Circuit Judge. Joshua Lanigan injured his back at 

his job in 2009. That same year he hurt his neck in a car 

 * The court initially resolved this appeal by nonprecedential order. The 

order is being reissued as an opinion.
2 No. 16-2894

accident, and in 2011 he was diagnosed with diabetes. Since 

then his medical impairments have been complicated by 

mental illness. Lanigan applied for Supplemental Security 

Income and Disability Insurance Benefits in March 2012 

when he was 38 years old. An Administrative Law Judge 

(“ALJ”) found his physical and mental impairments to be 

severe but not disabling and denied benefits. The Appeals 

Council denied review, and the district court upheld the 

ALJ’s decision. See 42 U.S.C. § 405(g). We conclude that the

case must be returned to the agency for further proceedings 

because the ALJ misinformed a vocational expert about 

Lanigan’s residual functional capacity, thus undermining 

the expert’s testimony that Lanigan could engage in competitive employment.

I. Background

Lanigan asserts that he became disabled in May 2009 after injuring his lower back while working as a general 

laborer. He received worker’s compensation for that injury 

and tried various forms of physical therapy, but none 

proved to be effective. Eventually he was diagnosed with 

degenerative disc disease in his lower back. In 2009 he also 

injured his neck in a car crash. Then in December 2011 he 

was diagnosed with Type 2 diabetes. At one time Lanigan 

was a body builder, but since 2009 he has been physically 

inactive and bounced between part-time or seasonal jobs and 

periods of unemployment. The Commissioner of Social 

Security concedes that Lanigan’s physical impairments, by 

themselves, would limit him to light work, so our focus is on 

his mental illness and its effect on his ability to engage in 

competitive employment.
No. 16-2894 3

After Lanigan learned of his diabetes diagnosis, he fell 

into a state of depression, anxiety, and suicidal preoccupation. He explained to a psychiatrist that he has an “ingrained 

fear of diabetes” because as a child he watched his grandfather struggle with and eventually die from the disease. In 

January 2012, a month after receiving the diagnosis, Lanigan 

reported to his physician that he had been in a “very low 

mood,” rarely leaving his apartment, and “sitting for hours 

at a time with a loaded pistol on his lap.” The following year 

after a psychiatric evaluation, Lanigan’s treating psychiatrist 

documented a history of alcohol abuse, bipolar affective 

disorder, major depression, attention deficit/hyperactivity 

disorder, oppositional defiant disorder, and kleptomania. 

The psychiatrist also noted that Lanigan had complained of 

intermittent episodes of visual hallucinations in which he 

saw animals or people in his periphery and five- to tenminute episodes of palpitations, sweating, and tremors 

when in public places or in the midst of family members. 

Lanigan attributes the episodes to his belief that he is being 

stigmatized because he is mentally ill. 

In addition to the stress of being diagnosed with diabetes, Lanigan’s inability to maintain full-time work has also 

contributed to his anxiety. He and his wife divorced in 2009, 

and in 2012 he moved in with his mother and stepfather 

after being evicted from his apartment. In the months following that move, Lanigan complained to his psychiatrist 

about the added stress of living with his verbally abusive 

stepfather, prompting the doctor to opine that the living 

arrangement had “been tough on him” and that “a lot of his 

pain and stress level would be improved ultimately if he can 

acquire the finances to get his own living quarters back.”
4 No. 16-2894

In June 2012, three months after applying for benefits, 

Lanigan was examined by a state-agency psychologist who 

concluded that he suffers from severe affective and anxiety 

disorders. Lanigan told the psychologist that he “can only 

pay attention for a few minutes” and is limited in his ability 

to “complete tasks, concentrate, understand, follow instructions, and get along [with] others.” Based on her examination, the psychologist concluded that Lanigan’s mental 

impairments could cause moderate limitations in his ability 

to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended 

periods; (3) perform activities within a schedule, maintain 

regular attendance, and be punctual; and (4) work in coordination with or in proximity to others without being distracted by them. A second state-agency psychologist who reviewed Lanigan’s file several months later agreed with the

first doctor about the limitations caused by Lanigan’s mental 

illness.

One feature of Lanigan’s mental illness is unmentioned 

in the evaluations of the state-agency psychologists—

apparently because the problem did not arise until 2013. 

That year Lanigan began experiencing recurring blackout 

episodes. In June he was hospitalized on an involuntary, 

emergency basis after being arrested for shooting out windows with a BB gun. At the hospital he claimed he could not 

recall his actions. When Lanigan was admitted, a doctor 

noted that he had attempted suicide four times in the prior 

six months and scored his global assessment of functioning 

(commonly known as “GAF”1) at 30 to 35. In the discharge 

 1 The GAF is a 100-point metric used to rate overall psychological, social, 

and occupational functioning, with lower scores corresponding to lower 
No. 16-2894 5

summary, another doctor noted that Lanigan had been 

experiencing mood swings in which he would feel okay and 

then suddenly become very irritable and express fear that he 

was “going to hurt people.” Lanigan had told staff he was 

not having homicidal thoughts while hospitalized but, 

nevertheless, said he worried about his irritable episodes 

and thus avoided people and isolated himself. At an outpatient visit a week after Lanigan’s release from the hospital, a 

psychiatric nurse noted that he possibly suffers from a 

dissociative disorder.

At his hearing before the ALJ in December 2013, Lanigan 

testified about his mental-health limitations. He described 

having difficulty in social situations and said he cannot go to 

a grocery store without first taking medication or having 

someone with him to help in case of a panic attack. He also 

briefly testified about his stay in the hospital in July 2013 

and other blackout episodes when he would “not remember 

what I was doing.” He said, “I’ve had episodes where [I’m] 

 

functioning. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL 

MANUAL OF MENTAL DISORDERS 32–34 (4th ed., Text Rev. 2000). A GAF 

score of 31 to 40 reflects “[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR

major impairment in several areas, such as work or school, family 

relations, judgment, thinking, or mood (e.g., depressed man avoids 

friends, neglects family, and is unable to work ...).” Id. at 34 (bold 

removed). The American Psychiatric Association eliminated use of the 

GAF in 2013, before the ALJ’s decision in this case, citing a “conceptual 

lack of clarity” and “questionable psychometrics in routine practice.” 

See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF 

MENTAL DISORDERS 16 (5th ed. 2013). Although the American Psychiatric 

Association no longer uses this metric, at the time of Lanigan’s psychological evaluations, clinicians still used GAF scores to report their 

assessment of a person’s overall level of functioning.
6 No. 16-2894

sitting down at dinner with my family, they start fighting, 

it’s 6:00 in the evening and next thing I know I’m sitting in 

my room and it’s 9:45 and I don’t remember anything.”

When asked about his current employment, Lanigan testified that as of the date of the hearing, he had been working 

part-time at Michaels craft store for five to six weeks on the 

truck crew—unloading the truck, stocking the store, and 

setting up displays. He described his limited interactions

with customers as “very stressful” and said he must have 

another employee present with him when he encounters 

customers. Lanigan testified that even his five-hour shifts 

three or four days a week are hard but said his coworkers 

“are really nice” and make him “feel comfortable.” He also 

explained that he excuses himself three to five times during 

each shift, sometimes for up to 20 minutes, so that he can 

retreat to the bathroom and get his emotions “in check.” He 

said his boss knows his situation “so she’s tolerant of it.”

A vocational expert also testified. The ALJ asked him to 

assess whether competitive employment would be available 

to a person with the following hypothetical residual functional capacity (“RFC”): capable of performing low-stress 

jobs constituting light work so long as those jobs involve 

only routine tasks; does not require more than occasional 

interaction with coworkers or the public; does not involve 

piece work or a rapid assembly line; is limited to occasional 

stooping, crouching, kneeling, or crawling; and can be off 

task up to 10% of the workday in addition to regularly 

scheduled breaks. The ALJ did not explain the source of the 

10% figure. The vocational expert opined that a person with 

this RFC could not operate a buffing machine or work as a 

general laborer as Lanigan once had done. But, the vocation-
No. 16-2894 7

al expert continued, a person with the RFC described by the 

ALJ could work as a hand packer, machine operator, or 

factory inspector. The vocational expert acknowledged, 

however, that this hypothetical person would be unemployable if any of the following is true: he will be off task more 

than 10% of the workday, he must leave his work station 

and walk around when off task, he cannot interact at all with 

coworkers or the public, or he will miss work more than 

twice per month.

The ALJ applied the five-step analysis for assessing disability, see 20 C.F.R. §§ 404.1520(a), 416.920(a), and concluded 

that Lanigan was not disabled. At step 1 the ALJ determined 

that Lanigan had not engaged in substantial gainful activity 

since his alleged onset in May 2009. At step 2 the ALJ identified Lanigan’s severe impairments as “degenerative disc 

disease ..., obesity, affective disorder, and anxiety disorder.” 

And at step 3 the ALJ concluded that these impairments, 

individually or in combination, do not satisfy a listing for 

presumptive disability. The ALJ concluded that Lanigan’s 

mental impairments do not cause two or more marked 

limitations or one such limitation coupled with repeated 

episodes of decompensation, and thus the paragraph B 

criteria of listings 12.04 and 12.06 were not satisfied. The ALJ 

acknowledged that Lanigan’s mental impairments do cause 

moderate restriction in his activities of daily living and 

moderate difficulty in social functioning. The ALJ reasoned, 

however, that Lanigan must not have any marked limitations because he was working part time in a retail environment, cares for his cat and dog, prepares meals daily, vacuums, helps with laundry, drives, shops in stores, manages 

money, and sees family regularly. 
8 No. 16-2894

In assessing Lanigan’s RFC, the ALJ found Lanigan’s testimony to be “generally credible” but rejected his statements 

concerning the intensity, persistence, and limiting effects of 

his mental illness. The ALJ reasoned that although Lanigan 

described severe problems being in public, he “actually 

works in a retail store[] about 15–22 hours a week” and has 

sustained other work that would require some social interaction “with no evidence that the work activity caused his 

symptoms to flare-up or made him need emergency treatment.” The ALJ also noted that while the record provides 

“some support” for Lanigan’s testimony about his social 

limitations and anxiety in public, Brian Eggener, a treating 

psychiatrist, had assigned a GAF score of 65 to 70 in March

2012. This means, the ALJ posited, that Lanigan has only

mild symptoms and limitations. And even when Lanigan 

was having suicidal ideations, the ALJ noted, his GAF score 

was 71 upon discharge from the hospital. Moreover, the ALJ 

asserted, the physician who approved Lanigan’s release said 

he was not showing signs of depression or anxiety. The ALJ 

commented that the record lacks “opinions from treating or 

examining physicians indicating that the claimant is disabled or even has limitations greater than those determined in 

this decision,” and said he placed “great weight on the 

opinions of the State agency medical consultants that the 

claimant can sustain light to medium work” because those 

opinions are “consistent with the record as a whole.” The 

ALJ concluded that Lanigan’s RFC matched the hypothetical 

given to the vocational expert. At step 4, then, the ALJ found 

that Lanigan could not perform his past work but at step 5 

concluded that he could work one of the jobs identified by 

the vocational expert. 
No. 16-2894 9

II. Discussion

Because the Appeals Council denied review, the ALJ’s 

decision is the final word of the Commissioner of Social 

Security. Scrogham v. Colvin, 765 F.3d 685, 695 (7th Cir. 2014). 

The district court’s decision is reviewed de novo, so we’re

directly reviewing the ALJ’s decision. See Yurt v. Colvin, 

758 F.3d 850, 856 (7th Cir. 2014). We will uphold that decision if it is supported by substantial evidence in the record. 

Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014). 

On appeal Lanigan argues that the hypothetical RFC 

posed to the vocational expert—“hypothetical” in name only 

because the ALJ assigned that very same RFC to Lanigan—is 

flawed and caused the vocational expert to overstate the 

available jobs that Lanigan can perform. Lanigan identifies 

two flaws: First, the ALJ failed to lay a foundation for certain 

limitations described in the hypothetical, including that he 

might be off task up to 10% of the workday (but not more) 

and that he is able to maintain “frequent” (rather than just 

“occasional”) contact with coworkers and the public. Second, Lanigan says, the hypothetical failed to account for his 

moderate limitations in concentration, persistence, and pace.

See O’Connor–Spinner v. Astrue, 627 F.3d 614, 619–20 (7th Cir. 

2010).

We agree with Lanigan that the ALJ’s hypothetical is not 

supported by substantial evidence. See Ehrhart v. Sec’y of 

Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992) 

(stating the rule that a hypothetical question must be supported by medical evidence in the record). The ALJ instructed the vocational expert to evaluate a hypothetical person 

who would “be off task up to 10% of the work day, in addition to regularly scheduled breaks.” Significantly, the voca-
10 No. 16-2894

tional expert testified that persons who will be off task less 

than 10% of the workday are capable of maintaining fulltime employment. But those who will be off task more than 

10% of the time, the expert acknowledged, will be incapable 

of maintaining competitive employment and thus are disabled. Lanigan argues that the ALJ had no basis to conclude 

that he wouldn’t be off task more than 10% of the time, 

especially given his unrebutted testimony that he was taking 

unscheduled breaks (sometimes for 20 minutes) three to five

times during his five-hour shifts at Michaels. At that rate it’s 

likely Lanigan would be off task more than 10% of a typical 

workday. 

The Commissioner responds that the ALJ’s 10% calculation was supported by the state-agency psychologists, who 

opined that Lanigan demonstrated adequate ability to 

sustain concentration and had only moderate—not 

marked—difficulty in various functional areas. But the 

Commissioner’s position is unpersuasive for two reasons. 

First, the ALJ made no effort to “build an accurate and 

logical bridge,” see Beardsley v. Colvin, 758 F.3d 834, 837 (7th 

Cir. 2014), between the ”no more than 10%” finding and the 

psychologists’ general assessment that Lanigan exhibits 

moderate difficulty in areas like the “ability to maintain 

attention and concentration for extended periods” and the 

“ability to perform activities within a schedule.” An ALJ 

need not address every piece of evidence, but he must 

establish a logical connection between the evidence and his 

conclusion. O’Connor–Spinner, 627 F.3d at 618. That did not 

happen here.

Second, the ALJ did not explain why he gave more 

weight to the opinions of the state-agency psychologists than 
No. 16-2894 11

he did to Lanigan’s long-time counselor, Carrie Paisar. 

Edmund Musholt, one of the reviewing state-agency psychologists, opined that Lanigan’s claim that he cannot pay 

attention for more than a few minutes is “only partially 

credible because exams show his activities and interests 

involve adequate ability to sustain concentration and social 

interaction.” But Dr. Musholt did not identify, and thus the 

ALJ had no way of knowing, what “activities and interests”

Lanigan supposedly was tackling adequately. Perhaps 

Lanigan was succeeding at “activities and interests” relevant 

to competitive employment, or he might have been excelling 

at wholly irrelevant tasks, e.g., caring for his pets or vacuuming the house. See Stark v. Colvin, 813 F.3d 684, 688 (7th 

Cir. 2016) (concluding that the claimant’s “persistence in 

struggling through household chores despite her pain does 

not mean, as the ALJ extrapolated, that she can manage the 

requirements of the work-place” because a person performing chores, unlike an employee, has more flexibility “and is 

not held to a minimum standard of performance”); Hill v. 

Colvin, 807 F.3d 862, 865, 869 (7th Cir. 2015) (warning against 

equating the activities of daily living—like babysitting, 

caring for pets, going to church, visiting with family members, and doing household chores—with those of a full-time 

job). On this record there is no way to know. In addition, 

Dr. Musholt’s assessment of Lanigan’s credibility differs 

from that of Esther Lefevre, the psychologist who actually 

examined Lanigan in June 2012. True, Dr. Lefevre did not 

fully credit Lanigan’s account of his physical limitations, but 

she did not say anything suggesting skepticism about his 

report of significant mental limitations.

Further, Dr. Musholt’s assessment dates to March 2013, 

before Lanigan’s involuntary commitment in June 2013, and 
12 No. 16-2894

nothing is said about how long Dr. Lefevre spent examining 

Lanigan in 2012. In contrast, the records from Paisar, who 

had been seeing Lanigan weekly or biweekly for roughly 

two years, recount that in July 2013 Lanigan had “talked 

about being fearful of what he might do if he gets angry and 

‘blacks out’” again and was “frustrated with not being able 

to remember time periods.” The counselor’s opinion is more 

recent than those of the state-agency consultants, and it 

corroborates Lanigan’s own account of serious difficulties 

with concentration. See Clifford v. Apfel, 227 F.3d 863, 870 (7th 

Cir. 2000) (“[M]ore weight is generally given to the opinion 

of a treating physician because of his greater familiarity with 

the claimant’s conditions and circumstances.”). Yet the ALJ 

seized on just one of Lanigan’s many sessions with Paisar—

when Lanigan had reported enjoying a day outdoors with a 

friend—and from that single session concluded that “increasing his activity outside of the house” had improved

Lanigan’s symptoms “rather than caused anxiety attacks or 

other problems.” That selective reading of two years of 

treatment notes is not persuasive. See Larson v. Astrue, 

615 F.3d 744, 751 (7th Cir. 2010) (having “symptoms that 

‘wax and wane’ [is] not inconsistent with a diagnosis of 

recurrent, major depression”); Bauer v. Astrue, 532 F.3d 606, 

609 (7th Cir. 2008) (a claimant with a chronic disease like 

bipolar disorder “is likely to have better days and worse 

days,” and even if “half the time she is well enough that she 

could work,” she still “could not hold down a full-time job”).

Similarly, the ALJ’s conclusion that Lanigan could maintain frequent (instead of only occasional) contact with 

coworkers is not supported by the record. The distinction 

matters because the vocational expert testified that someone 

who is limited to occasional contact with coworkers and has 
No. 16-2894 13

the hypothetical’s other limitations cannot maintain competitive employment. The ALJ reasoned that although Lanigan 

described severe problems being in public, he “actually 

works in a retail store[] about 15–22 hours a week” and has 

sustained other work that would require some social interaction “with no evidence that the work activity caused his 

symptoms to flare-up or made him need emergency treatment.” 

We have cautioned ALJs not to draw conclusions about a 

claimant’s ability to work full time based on part-time 

employment. See Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 

2011) (explaining that a claimant’s “brief, part-time employment” did not support the conclusion “that she was able 

to work a full-time job, week in and week out, given her 

limitations”); Larson, 615 F.3d at 752 (“There is a significant 

difference between being able to work a few hours a week 

and having the capacity to work full time.”). That is especially true when, as here, the claimant’s employer is accommodating him. See Larson, 615 F.3d at 752. At the hearing Lanigan testified that his supervisor at Michaels was aware of his 

mental illness and “tolerant of it.” Instead of acknowledging 

the employer’s commendable generosity, the ALJ assumed 

that Lanigan’s work performance was no different than any 

other employee’s. Equally troubling, the ALJ failed to mention that Lanigan had been on the job for just six weeks, far 

too short a time to infer anything about his prospects of 

maintaining even part-time employment. See Jelinek, 662 F.3d

at 812; Larson, 615 F.3d at 752. And, finally, Lanigan’s testimony directly contradicts the ALJ’s assertion that his work 

activity never “caused his symptoms to flare-up.” Lanigan 

testified that the very purpose of his frequent breaks was to 

make sure his “emotions [were] in check.” And he said that 
14 No. 16-2894

on Black Friday he “melted down on the floor” and “went in 

the back for over a half hour just to get away from everybody.”

Thus, as Lanigan contends, the ALJ’s hypothetical includes assumptions about his RFC that simply lack support 

in the record. And, as Lanigan further argues, there is a 

second serious flaw in the hypothetical: it fails to account for 

his moderate limitations in concentration, persistence, and 

pace. See O’Connor–Spinner, 627 F.3d at 619 (“Among the 

limitations the [vocational expert] must consider are deficiencies of concentration, persistence and pace.”). We have

said that an ALJ must explicitly address those limitations in 

the hypothetical unless one of three exceptions applies: 

(1) the vocational expert was independently familiar with 

the claimant’s medical file; (2) the hypothetical adequately 

apprised the vocational expert of the claimant’s underlying 

mental conditions; or (3) the hypothetical otherwise accounted for the limitations using different terminology. Id. at 

619–20. 

None of the exceptions applies here. As for the first, the 

Commissioner does not contend that the vocational expert

examined Lanigan’s medical records, even if he might have 

reviewed information about Lanigan’s employment history. 

And though the vocational expert was present when 

Lanigan testified at the hearing, that testimony was too 

limited to provide a complete and full picture of his mental 

limitations. Regarding the next two exceptions, the Commissioner argues that the ALJ’s hypothetical effectively communicated, in different words, the idea that Lanigan had 

experienced “moderate difficulties in concentration, persistence, or pace.” We cannot agree. The hypothetical begins by 
No. 16-2894 15

positing a person capable of performing “simple, routine, 

and repetitive tasks.” These terms refer to “unskilled work,” 

which the regulations define as work that can be learned by 

demonstration in less than 30 days. See 20 C.F.R. §§ 404.1568, 

404.1520. 

We have explained that the speed at which work can be 

learned is unrelated to whether a person with mental impairments—i.e., difficulties maintaining concentration, 

persistence, or pace—can perform such work. See Yurt, 

758 F.3d at 858–59 (rejecting the notion that “confining the 

claimant to simple, routine tasks and limited interactions 

with others adequately captures temperamental deficiencies 

and limitations in concentration, persistence, and pace”); 

Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009); Craft v. 

Astrue, 539 F.3d 668, 677–78 (7th Cir. 2008). The Commissioner also argues that the hypothetical about “off-task” 

behavior informed the vocational expert about Lanigan’s

moderate difficulties in the domain of concentration, persistence, or pace. As we’ve noted, however, to the extent that 

the 10% calculation was flawed, so was the hypothetical. See

Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir. 2004) (“For all 

of the same reasons that the RFC fell short, the hypothetical 

question, which was based entirely on that RFC[,] did as 

well.”). 

Additionally, the Commissioner argues that even if the 

ALJ’s hypothetical was flawed, Lanigan waived any challenge to it by not objecting to the vocational expert’s testimony during the hearing. The Commissioner relies on 

Donahue v. Barnhart, which holds that claimants must raise 

objections to a vocational expert’s testimony at the hearing. 

279 F.3d 441, 446 (7th Cir. 2002). But Lanigan is not challeng-
16 No. 16-2894

ing the vocational expert’s testimony. Rather, he is challenging the lack of a substantial basis for the ALJ’s characterization of Lanigan’s mental RFC in the hypothetical questions 

he posed to the vocational expert.

Accordingly, we REVERSE the decision upholding the 

ALJ’s denial of benefits and REMAND to the agency for 

further proceedings.