# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued October 3, 2019
Decided November 12, 2019

Before

DIANE P. WOOD, Chief Judge

AMY C. BARRETT, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-3673

PAUL PYTLEWSKI, 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. 17-cv-0810-slc

Stephen L. Crocker,

M agistrate Judge

.

O R D E R

Paul Pytlewski, now 42, who suffers fr om mental impairments (anxiety, depression, and anger issues) and physical im pairments (chronic back pain and pain in his neck and arms), challenged the denial of his application for Social Security disability benefits and supplemental social security in come. An administrative law judge denied Pytlewski’s application after finding that he lacked sufficient medical evidence that he was disabled. The district court upheld the ALJ’s decision. On appeal, Pytlewski principally contends that the ALJ afforded too little weight to his treating physician’s opinion about his mental impairments. Beca use the ALJ’s decision was supported by
substantial evidence, we affirm. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-1629 Page 2

I

Pytlewski applied in mid-2015 for Title II disability insurance benefits and supplemental social security income, alle ging a host of mental and physical impairments. (Because he confines this appe al to only his mental impairments, we focus mainly on those.) Pytlewski previously worked as a mortgage clerk, auto detailer, tire builder, and cleaner; his professional activities, however, were derailed by his temper and anxiety, which he says lost him at le ast thirty jobs in three years. In May 2015, Pytlewski ceased working because of his back and neck pain and his inability to deal with people. Two months later, he began trea tment with a mental-health therapist. At intake, the therapist recorded Pytlewski’s history of anxiety and depression and diagnosed him with intermittent explosive disorder.

Upon referral from the Disability Determination Bureau, consultative psychologist Dr. Steven Benish saw Pytl ewski in September 2015 and diagnosed him with post-traumatic stress disorder, panic disorder, and “some symptoms” of bipolar

disorder. Dr. Benish recounted that the ex amination was “certainly one of the more unusual” ones that he had conducted: Pytl ewski was “dramatic in presentation,” “acted in a quite peculiar manner,” “entered withou t saying a word,” wore dark glasses, refused to be seen without his girlfriend present, and requested frequent breaks. Regarding work capacity, Dr. Benish opined that Pytlewski could understand, recall, and carry out instructions; that his concen tration and cognitive pace were average or slightly limited; that his ab ility to respond to supervisors or coworkers was moderately affected; and that he responded to stress with angry outbursts and “agitation.” Dr. Benish posited that Pytlewski’s unusual be havior, if not “partly explained” by an unspecified personality disorder, could be attr ibutable to malingering with the intent to influence the examiner’s opinion.

Between July 2016 and March 2017, Pytlewski saw psychiatrist Dr. John Whalen eight times. At an early stage of his care , in September 2016, Dr. Whalen opined that Pytlewski had a personality disorder (sociopa thic traits) and a possible diagnosis of a bipolar disorder; he stated that Pytlews ki’s prognosis was “poor.” He described Pytlewski as “probably noncompliant” with his medications and noted “some malingering for benefits from SSI.” Dr. Whal en observed that Pytlewski could function in a regular, competitive work setting 8 hours per day, 5 days per week for more than 6 months, so long as Pytlewski took his medi cations. Dr. Whalen described Pytlewski’s “potential and capacity for work” as “limit ed only by his motivation to continue a treatment plan.” He assessed Pytlewski’s functi onal limitations as “none-mild” in every
category.No. 18-1629 Page 3

Meanwhile, the state-agency psychologi sts who reviewed Pytlewski’s medical records found him capable of working. In September 2015, Dr. Susan Donahoo concluded that Pytlewski could “maintain[] concentration and persistence to complete workdays and workweeks in performance of simple repetitive tasks,” might have “some difficulty dealing appropriately w/th e general public, supervisor’s [sic] and
coworkers,” and would have “moderate” limita tions with workplace stress or adapting to change. In January 2016, Dr. Russell Phillips found that Pytlewski could “maintain[] concentration and persistence to complete workdays and workweeks in performance of simple repetitive tasks”; “maintain attentio n for two hours at a time and persist at simple tasks over eight- and forty-hour peri ods with normal superv ision”; and “tolerate simple changes in routine ... and make/carry out simple plans.”

After the Social Security Administration twice denied benefits, Pytlewski testified at a hearing before an ALJ in late 2016 that he could no lo nger work because of his mental impairments and back and neck pain. He explained that he was being treated by Dr. Whalen for “Bipolar I, PTSD ,” he had trouble “being around others,” and on about twenty occasions he had become so “f rustrated” that he “wal k[ed] off the job.”

Six days after the hearing, in November 2016, Dr. Whalen saw Pytlewski again. This assessment differed significantly from Dr. Whalen’s assessment of Pytlewski two months earlier. In September, Dr. Whalen de scribed Pytlewski as having “none-mild” functional limitations; now, he rated Pytlews ki’s functional limitations as “extreme” in every category. In September, Dr. Whalen op ined that Pytlewski could work full-time in a competitive setting with adherence to a treatment plan; now, he said that Pytlewski was incapable of tolerating even a “low stre ss” job and that his level of occupational and social impairment was “total.” Dr. Wh alen also recorded that Pytlewski was suffering back and neck pain and that he de monstrated some “loose associations” in his thought process. Dr. Whalen diagnosed Pytlews ki with intermittent explosive disorder, bipolar disorder and multiple learning disabilities.

At Pytlewski’s request and after receiving additional medical evidence (including Dr. Whalen’s November 2016 report), the ALJ in May 2017 held a supplemental hearing with a new vocation al expert. Asked what work would be available to a person of Pytlewski’s age wi th his experience and limitations, the VE responded that this person would be restricted to simple, routine, and repetitive tasks; no fast-paced work; only simple work-rel ated decisions and occasional workplace changes; and only occasional interaction wi th the public, coworkers, and supervisors. This person, the VE continued, would be re stricted from performing Pytlewski’s pastNo. 18-1629 Page 4

work, but could perform sedentary, unskilled jobs, such as “addressing clerk,” “telephone quotation clerk,” “charge-account clerk,” and “inspector of film touch-up.”

Applying the administration’s five-ste p analysis, 20 C.F.R. § 404.1520(a)(4), the ALJ first determined that Pytlewski had not engaged in substantial gainful activity since his alleged onset date (Step 1). The ALJ next found that although Pytlewski’s impairments were severe (Step 2), they did no t meet or equal a listed impairment (Step 3). The ALJ assigned a residual functional capacity consistent with the hypothetical claimant described to the VE, (Step 3), and then found Pytlewski unable to perform any past relevant work (Step 4). Finally, the ALJ concluded that because Pytlewski could perform jobs existing nationwide in signific ant numbers, he was not disabled (Step 5).

For purposes of this appeal, the cruc ial step was the ALJ’s assessment of Pytlewski’s RFC, and particularly the ALJ’s de cision to give more weight to the stateagency psychologists’ opinions than to the op inions of either Dr. Benish or Dr. Whalen. The ALJ assigned “significant weight” to th e opinions of state-agency psychologists Drs. Donahoo and Phillips, finding their a ssessment “in line” with the RFC limitations

that the VE described and the medical eviden ce. The ALJ assigned “some weight” to Dr. Benish’s opinion; his consultative examinat ion was “clouded” by Pytlewski’s “possible factitious/malingering behaviors,” but hi s opinion “allowed” for the assessed RFC and

was consistent with the medical evidence.

The ALJ accorded the least weight to D r. Whalen’s reports. The ALJ assigned “limited weight” to the doctor’s September 2 016 opinion, which identified no more than mild mental and social limitations. He assigned “little weight” to Dr. Whalen’s November 2016 opinion, which (1) factor ed in Pytlewski’s back and neck impairments—ailments beyond the doctor’s expertise; (2) was “entirely incompatible” with his prior opinion and gave no explanat ion for this incompatibility, including the doctor’s prior concerns of malingering; (3) relied on Pytlewski’s unsupported statement that he had lost thirty jobs in recent ye ars; (4) conflicted with his own contemporaneous treatment notes that reflected good grooming, cooperative behavior, euthymic (tranquil) mood, normal speech, as well as good cognition, memory, judgment and reality testing; and (5) was “extreme” and “n ot in keeping” with other evidence that Pytlewski could tend to basic daily activi ties without experiencing “episodes of decompensation as shown by hospitalizations.”

After the Appeals Council denied review, the district court upheld the denial of
benefits. Of relevance here, the court conc luded that the ALJ’s reasons for assigning little weight to Dr. Whalen’s second opinio n were logical and supported by substantialNo. 18-1629 Page 5

evidence. The court rejected Pytlewski’s arg ument that Dr. Whalen’s second opinion sought to account for new evidence of physic al difficulties, stating that Dr. Whalen, a psychiatrist, “appeared merely to have credited Pytlewski’s subjective reports of [back] pain,” which was outside his area of specialty.

II

On appeal, Pytlewski first generally cont ends that the ALJ erred by improperly giving more weight to the state-agency psyc hologists’ opinions (Dr. Donahoo’s and Dr. Phillips’s) than to a treating physician’s opinion (Dr. Whalen’s).

Under the treating-physician rule, AL Js may assign greater weight to the opinions of treating physicians, who are more familiar with a claimant’s conditions than non-treating physicians. Gudgel v. Barnhart , 345 F.3d 467, 470 (7th Cir. 2003); 20 C.F.R. § 404.1527(d)(2). “An ALJ who does not credit [a treating source’s] opinion must offer good reasons for doing so and must address the appropriate weight to give the opinion.” Stage v. Colvin , 812 F.3d 1121, 1126 (7th Cir. 2016); see also 20 C.F.R. § 404.1527(c)(2). We review an ALJ’s decision to give more weight to state-agency doctors’ opinions than a treating physician’ s for substantial evidence. 42 U.S.C. § 405(g);

Ketelboeter v. Astrue , 550 F.3d 620, 625 (7th Cir. 2008).

Substantial evidence supports the ALJ’s decision here to give more weight to the state-agency psychologists’ opinions than to Dr. Whalen’s. The ALJ appropriately discounted Dr. Whalen’s second opinion because he found that the “extreme” assessment of Pytlewski’s “total occupati onal and social impairment” was “entirely incompatible” with Dr. Whalen’s opinion two months earlier. A reasonable person would accept the ALJ’s conclusion, particular ly given that Dr. Whalen’s second opinion did not explain the marked change or account for his earlier concerns about Pytlewski’s malingering.

Pytlewski next argues that the narrativ e findings from the state-agency psychologists did not include all the limitatio ns that they marked in the checklists accompanying their reports. For example, th e two state-agency psychologists wrote that Pytlewski could maintain concentration and persistence to complete workweeks performing simple repetitive tasks—even th ough both found him moderately limited in maintaining attention and concent ration for extended periods.

This argument fails because the state physic ians’ checklists in fact are consistent

with their narratives. Consider: in the check list, Dr. Donahoo found that Pytlewski wasNo. 18-1629 Page 6

“not significantly limited” in his abili ty to “carry out very short and simple instructions,” “sustain an ordinary routin e without special supervision,” and “make simple work-related decisions.” These find ings are consistent with Dr. Donahoo’s narrative that Pytlewski is “capable of ma intaining concentration and persistence to complete workdays and workweeks in performance of simple repetitive tasks.” Nor are Dr. Phillips’s narrative sections inconsistent with his checklist observations. For example, Dr. Phillips’s narrative that Pytlewsk i could “maintain attention for two hours at a time and persist at simple tasks over eight- and forty-hour periods with normal supervision,” is consistent with his chec klist findings that Pytlewski was “not significantly limited” in his ab ility “to ask simple questions or request assistance” or “to maintain socially appropriate behavior,” an d only “moderately limited” in his ability “to interact appropriately with the general pu blic,” “to accept instructions and respond appropriately to criticism from supervisors, ” and “to get along with coworkers or peers without distracting them or exhibiting behavioral extremes.”

Pytlewski next contends that the ALJ formulated the RFC and hypothetical question with restrictions that did not ad equately account for his moderate limitations in concentration, persistence, and pace. The hypothetical that the ALJ posed to the VE contained the following mental restrictions:

 Limitation to simple, rout ine and repetitive tasks;

 No fast-paced work;

 Only simple, work-related decisions;

 Occasional workplace changes; and

 Occasional interaction with the pu blic, coworkers or supervisors

Pytlewski argues that restricting him to occasional interaction with the public, coworkers, or supervisors does not adequately account for his intermittent explosive disorder—and so failed to properly orient the VE.

We see no error in the ALJ’s assessment. The ALJ tied the RFC to the evidence in the record—he tailored Pytlewski’s workplac e setting to accommodate for Pytlewski’s anxiety, depression, and anger issues by limiting his interaction with people and restricting him from making high-stakes decisions. See Jozefyk v. Berryhill , 923 F.3d 492, 497–98 (7th Cir. 2019). Although we often reject the idea that a hypothetical confining the claimant to “simple, routine tasks and li mited interactions with others adequately captures temperamental deficiencies and limit ations in concentration, persistence, and pace,” Moreno v. Berryhill , 882 F.3d 722, 730 (7th Cir. 2018)

, such a hypothetical may be adequate when it restricts a claimant with “str ess- or panic-related” limitations, as is theNo. 18-1629 Page 7

case here, given Pytlewski’s recurring anxiety, to low-stress work. O’Connor-Spinner v.

Astrue , 627 F.3d 614, 619 (7th Cir. 2010) (collecting cases). Pytlewski cites no evidence

that his moderate limitations in concentratio n, persistence, and pace prevent him from completing “simple, routine and repetitive tasks” while being restrained to occasional

interaction with others. See Jozefyk , 923 F.3d at 498. Under the substantial-evidence standard, a reasonable person would accept the ALJ’s conclusion that these mental

restrictions were consistent with Dr. Whalen ’s monthly treatment notes reflecting “good cognition, memory, insight/ judgment,” and, most importantly, given Pytlewski’s concern regarding his intermittent expl osive disorder, “cooperative behavior.”

One last note. Although ultimately harmless, the ALJ engaged in circular reasoning when he evaluated the weight of me dical opinions based on their consistency with the RFC assessment. The ALJ noted, for instance, that Dr. Donahoo’s and Dr. Phillips’s opinions were “in line” with th e RFC’s limitations, that Dr. Benish’s assessment “generally does allow” for the a ssigned RFC, and that Dr. Whalen’s opinion “generally allows for the work articulated” in the assigned RFC. These statements put

the cart before the horse: "the determinatio n of [RFC] must be ba sed on the evidence”; medical opinions should not be fo rced into a “foregone conclusion.” Filus v. Astrue

, 694 F.3d 863, 868 (7th Cir. 2012); see also Bjornson v. Astrue , 671 F.3d 640, 644–46 (7th Cir. 2012). The RFC is constructed from medical a ssessments; justifying the weight of those same medical assessments by their co nsistency with the RFC is circular. See 20 C.F.R. §§ 404.1527(b), 404.1545(a)(3). This error, howev er, was harmless, given the ALJ’s careful review of the record and tying of the RFC to the record evidence.

AFFIRMED