### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1957

G AIL A. M ARTIN, Plaintiff-Appellant,

v.

A NDREW M. S AUL , Commissioner of Social Security, Defendant-Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:18-cv-33 — Susan L. Collins , Magistrate Judge

.

____________________

A RGUED D ECEMBER 3, 2019

— D ECIDED F EBRUARY 7, 2020

____________________

Before W OOD , Chief Judge, and H AMILTON and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . Gail Martin su ffers from serious back pain and psychiatric conditions. Two administrative law judges have considered her application for disability bene fi ts under the Social Security Act. The fi rst ALJ determined that Martin’s severe impairments left her capable of performing only a limited range of sedentaryjobs. On appeal the district court remanded for a more thorough consideration of2 No. 19-1957

Martin’s mental health proble ms. A new ALJ then entered the mix and found that Martin had no physical limitations—none whatsoever—and declined to award disability bene fi ts. Because the second ALJ’s decisionis not supported by substantial evidence, we reverse. We also take the rare step of ordering the award of bene fi ts.

I

AGail Martin, a 67-year-old woman living in northeast Indiana, sought bene fi ts due to physical and psychological problems. Her persistent back pain stems from two car accidents, and she likewise su ff ers from depression, anxiety, bipolar disorder, panic disorder, and PTSD. These conditions caused Martin to stop working in 2009. Before then she had worked as a home health aide, data entry clerk, and administrative assistant.For her back pain, Martin sought treatment from chiropractors. In 2004 a chiropractor ordered x-rays and saw thatcompressed discs were the source of Martin’s pain. He recommended a 20-pound lifting restriction, but also advised Martin that her condition would pr obably worsen even with ongoing treatment. Since then Martin has restricted her activities. She testi fi ed in her fi rst hearing that her back pain prevents her from mopping fl oors, using a vacuum cleaner, orperforming any housework beyond light dusting. She conveyed similar points at a second hearing.At the Commissioner’s request, Dr. David Ringel examined Martin before her fi rst ALJ hearing. While not providing a diagnosis or prescribing wo rkplace limitations, he found that Martin experienced back spasms, was slow to move o ffNo. 19-1957 3

and on the examination table, and had signi fi cantly limitedrange of motion in her neck, back, and hips. Two non-examining state agency doctors (J. Sands and M. Ruiz) reviewed Martin’s medical records and case fi le in 2011 for physical impairments and concluded that she could perform no more than a limited range of light work. Only in 2014 did one state agency doctor, Joshua Eskonen, conclude that Martin had no physical limitations. Dr. Eskonen o ff ered that view without examining Martin or reviewing Dr. Ringel’s fi ndings. For years Martin has received mental health treatment at the Northeastern Center in Indiana. Each of her providers has noted Martin’s psychiatric cond itions and symptoms, including her di ffi culties concentrating and interacting with others.The therapist who met regularly with Martin found severe social anxiety and longstanding de pression that would preclude her from working full-time. Before Martin’s second hearing in 2016, a state agency psychologist reviewed her fi le and agreed that she was limited in her ability to remember and carry out detailed instructions, maintain a tt ention and concentration, interact with the general public and supervisors, and respond to changes in the workplace.

B Following the fi rst hearing in 2012, the ALJ concluded that Martin had severe physical impairments but could work in a sedentary job requiring li tt le social interaction, including in her previous positions as a data entry clerk or administrative assistant. On appeal, the district court remanded to reconsider whether the ALJ’s residu al functional capacity or RFC determination—the analysis of what work activities Martin could perform—re fl ected all of Martin’s mental health challenges. The court noted that the appeal presented no4 No. 19-1957

questions about the ALJ’s fi ndings that Martin’s physical limitations left her able to perform only sedentary work. The case went to a new ALJ on remand. Martin took the position that the second ALJ was bound by the fi rst ALJ’s fi nding of her physical limitations. The new ALJ disagreed and concluded that the fi rst ALJ’s conclusions could be revisited. A hearing then ensued. Martin testi fi ed that, although she continued to experience back pa in, she had not sought further treatment because her chiropractor told her that there wasnothing she could do except avoid aggravating her back. After hearing this testimony, the ALJ remained skeptical of Martin’s allegation of ongoing back pain because the record revealed “an overall lack of treatment, treatment sought, [and] treatment received.” The second ALJ performed the required fi ve-step analysis under the Social Security regula tions and concluded that Martin was not disabled. The ALJ found that Martin’s psychological problems were serious and limited the work she could perform. When it came to M artin’s physical impairments, however, the ALJ concluded that Martin’s back pain was not severe and did not in any way a ffect her ability to work. The ALJ based that conclusion on the lack of treatment for back pain in the record and Dr. Eskonen’s fi nding that Martin had no physical impairments. At no point in its analysis of the medical record did the second ALJ discuss the fi rst ALJ’s fi nding that Martin su ff ered from severe physical limitations. The second ALJ then turned to the RFC determination and, unlike the fi rst ALJ, concluded that Martin had the physical ability “to perform a full rang e of work at all exertional levels.” From there the second ALJ found that Martin’s mental health conditions meant that she could work in a jobNo. 19-1957 5

involving only simple tasks with low stress, occasional changes, a fl exible pace, and super fi cial interactions with others. Those limitations, the ALJ determined, prevented Martin from returning to any of the jobs she held in th e past. But there were positions, including as a cleaner and warehouse worker, that the ALJ found did not exc eed Martin’s abilities. In the end, the second ALJ concluded that Martin could perform these jobs and therefore was no t disabled. The district court

a ffi rmed the denial of bene fi ts.

II In reviewing Martin’s appeal, we reverse only if the ALJ based the denial of bene fi ts on incorrect legal standards or less than substantial evidence. See Cli ff

ord v. Apfel , 227 F.3d 863,869 (7th Cir. 2000) (citing 42 U.S.C. § 405(g)). Substantial evidence is not a demanding requir ement. It means “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 Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)). Martin presses three points on appeal. First, she argues that the second ALJ did not in corporate her full mental limitations into the RFC determination. She then posits that the law of the case doctrine required the second ALJ to adopt the fi rst ALJ’s fi nding that she could perf orm only a restricted range of sedentary work. Alternatively, Martin contends that the second ALJ’s conclusion thatshe had no physical limitations was not supported by substantial evidence.6 No. 19-1957

A

We start with Martin’s cont ention that the second ALJ overestimated her mental abilities. Martin suggests that the ALJ’s RFC determination failed to translate her mental healthsymptoms into limitations related to concentration, persistence, and pace—often shorthanded as CPP in the lexicon of Social Security law.

CPP limitations are familiar terri tory, especially in recent years. Over many cases we observed a recurring error: ALJs would limit a claimant to “unskilled work” and conclude that by doing so they had incorporated a claimant’s full range of CPP limitations—challenges concen trating, staying on task, and maintaining a given pace in the workplace. Time and again we have disagreed. See, e.g. , Crump v. Saul , 932 F.3d 567, 570 (7th Cir. 2019) (reversing and explaining that the observation that someone can perfor m simple tasks says nothingabout whether she can do so over the course of a full workday); DeCamp v. Berryhill , 916 F.3d 671, 675–76 (7th Cir. 2019)(emphasizing that there is no basis for concluding that eliminating jobs with production quotas can serve as a proxy for CPP limitations); Moreno v. Berryhill , 882 F.3d 722, 730 (7th Cir. 2018) (reversing because the hypothetical question posed to a vocational expert about the cl aimant’s RFC did not include accommodations for CPP limitations). In this area of the law, “unskilled work” is a term of art (indeed one de fi ned by regulations) and refers to tasks that are not complex and do not take long to learn. See 20 C.F.R.§ 404.1568(a). As we have labored mightily to explain, however, the relative di ffi culty of a speci fi c job assignment does not necessarily correlate with a claimant’s ability to stay on task or perform at the speed required by a particularNo. 19-1957 7

workplace. See, e.g. , Winsted v. Berryhill , 923 F.3d 472, 477 (7th Cir. 2019) (explaining that limitin g a claimant to simple and routine tasks did not account for his concentration and functioning de fi cits). Put another way, someone with problems concentrating may not be able to complete a task consistently over the course of a workday, no ma tt er how simple it may be. Martin’s argument sounds in the familiar. She suggeststhat the second ALJ erred when discussing her ability to complete work on time. The ALJ fo und that Martin could work only in “an environment thatallowed her to sustain a fl exible and goal oriented pace.” Invoking Varga v. Colvin , 794 F.3d 809 (7th Cir. 2015), Martin asserts th at this description is too vague to guide any determination of what work, if any, she can perform over an entire workday. Our holding in Varga did not root itself in vagueness, though. To be sure, we noted thatthe phrase “fast paced production” had more than one meaning. Id . But we reversed because the ALJ failed to include the claimant’s signi fi cant problems concentrating in the RFC determination. See id . at 814. A more general observation warrants reinforcing. The law does not require ALJs to use cert ain words, or to refrain from using others, to describe the pace at which a claimant is able to work. See, e.g. , Crump , 932 F.3d at 570 (“As a ma tt er of form, the ALJ need not put the questi ons to the [vocational expert] in speci fi c terms—there is no magic words requirement.”). We decline to provide a glossary ofadjectives for use in RFC determinations. What we do requ ire—and our recent precedent makes plain—is that the ALJ mustaccount for the “totality of a claimant’s limitations” in determining the proper RFC. See Moreno , 882 F.3d at 730 (internal citation omi tt ed).8 No. 19-1957

We see no error here. The seco nd ALJ did not take any of the shortcuts on Martin’s CPP li mitations that we have found problematic in other cases. To the contrary, the ALJ tailored Martin’s RFC to her CPP limitat ions without assuming that restricting her to unskilled wo rk would account for her mental health impairments.

Start with concentration. The second ALJ found that “[Martin] could maintain the co ncentration required to perform simple tasks, remember simple work-like procedures,and make simple work-related decisions.” Moving to persistence, the ALJ, in defining and tailoring the RFC, further determined that Martin could stay on-task and thereby “meet production requirements.” Of co urse, even if someone is ontask, it is still possible she may operate at such a slow pace that an employer would not find her work satisfactory. Hence, the second “P”—pace—mu st enter the equation. TheALJ incorporated pace-related limitations by stating that Martin needed flexibility and work requirements that were goaloriented. Ideally, the ALJ would have brought to the surface what is surely implicit in th e determination—that any pacebased goals must be reasonable as a way of signaling that the employer could not set the bar beyond the person’s functional reach. We take comfort here from the fact that the jobs the vocational expert suggested inherently reflected such a reasonableness limitation. Although M artin complains that the pace requirements are too vague, ther e is only so much specificity possible in crafting an RFC. The law required no more.

B This brings us to the second ALJ’s fi nding that Martin had no physical limitations whatsoev er. Martin invites us to make quick work of this appeal by reversing on the ground that theNo. 19-1957 9

law of the case doctrine bound the second ALJ to the fi rst ALJ’s conclusion limiting her to sedentary work. We cannot do so, however, as the operation of the doctrine in this area is complex and underdeveloped. Our case law instructs that an administrative agency must “conform its further proceedingsin the case to the principles set forth in the [appellate] decision.” See Wilder v. Apfel , 153 F.3d 799, 803 (7th Cir. 1998). But we have not explained how that directive applies to previous fi ndings not reviewed on appeal—here to fi ndings made by one ALJ that implicated issues re examined by a second ALJ. We can leave the issue for another day, though, because the second ALJ’s determinatio n that Martin could perform physical work “at all exertional levels” fi nds nowhere close to substantial support in the reco rd. The second ALJ assigned li tt le weight to every medical opinion related to physical conditions except for the one provid ed by Dr. Eskonen, an agency physician who never examined Martin nor reviewed her previous case fi le. The ALJ even credited Dr. Eskonen’s opinionover that of Dr. Ringel, the state-agency doctor who did perform a physical examination of Martin at the Commissioner’s request. See Kaminski v. Berryhill , 894 F.3d 870, 875 (7th Cir. 2018) ( fi nding error in overlooking consulting physician report and relying instead on non-consultative opinions); seealso 20 C.F.R. § 404.1520c(c)(3)(v) (explaining that, in evaluating evidence, an ALJ must consid er that an examining doctor may have more insights than a doctor reviewing evidence in a folder). Even more, in choosing to credit particular fi ndings Dr. Ringel made about Martin’s physical ability, the second ALJ altogether ignored others making plain that Martin had serious neck and back problems. The ALJ’s analysis strikes us10 No. 19-1957

as impermissible cherry-picking —highlighting facts that support a fi nding of non-disability while ignoring evidence to the contrary. See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). The details prove the point. The second ALJ made muchof the fact that Martin walked without a limp during her appointment with Dr. Ringel and drove herself to the medical clinic. But Dr. Ringel’s report is replete with other fi ndings on Martin’s physical abilities thatthe second ALJ discounted. Speci fi cally, Dr. Ringel reported that Martin moved slowly in the examination room and experi enced pain at several points during the exam. So, too, did D r. Ringel note that Martin had extremely limited range of motion in her neck, back, and hips. Many of Dr. Ringel’s obse rvations align with the fi rst ALJ’s fi ndings on Martin’s physical limitations. Recall that the fi rst ALJ limited Martin to a restricted range of sedentary work, which involves “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket fi les, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). Contrast those limitations with the second ALJ’s assessment that Martin had the physical capacity to perform anyjob. Crediting the second ALJ’s fi nding would mean—literally—that Martin can perform what the Commissioner considers “very heavy work,” which requires “lifting objects weighing more than100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more.” Id . § 404.1567(e). On thisview, Martin would be able to work full-time as a construction worker or a home builder. But the record evidence points in the opposite direction. If Martin can barely perform simple household tasks, it de fi es reality to conclude that she is able to perform physical labor at any level of exertion. Because theNo. 19-1957 11

evidence falls far from supporting the second ALJ’s fi nding,
we must reverse.

What most concerns us is that the second ALJ did not grapple with the fi rst ALJ’s fi ndings that Martin could perform only sedentary work. And that was so even though the second hearing entailed the pres entation of no new evidence bearing on Martin’s physical limitations. While the law may not compel a comparative analysis, we would have expected the second ALJ to explain the basis for reaching such a vastly di ff erent conclusion about whethe r Martin’s physical condition a ff ected the jobs she could perform.

III Martin asks us not only to reverse but also to remand with instructions to grant bene fi ts. That remedy is a marked departure from our typical practice of remanding to the agency for further proceedings. See, e.g. , Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005); Wilder, 153 F.3d at 804. Martin is right that extraord inary circumstances weigh in favor of an outright award of bene fi ts here because the record “can yield but one supportable conclusion.” Campbell v. Shalala , 988 F.2d 741, 744 (7th Cir. 1993). Indeed, the agency’s own guidance compels this outcome. In the social security appeals that come to our court, we most often review the ALJ’s application of a fi ve-step framework that ends with a vocational expert opining whetherthere are jobs in the economy that someone with the claimant’s quali fi cations and limitations could perform. See 20 C.F.R. § 404.1520(f). But in many cases that approach is not required. In 1978 the Departmentof Health and Human Services (which at the time housed the Social Security12 No. 19-1957

Administration) promulgated the Medical-Vocational Guidelines. See 20 C.F.R. Part 404, Subpart P, Appendix 2. Those Guidelines are often called “the Grids” because they take the form of tables. See id . The three tables in the regulatory appendix apply to claimants limited to sedentary, light, and medium jobs. See id . Each chart directs a fi nding—disabled ornot disabled—based on three work-related factors: the claimant’s age, education, and previous work experience. See id .; see also Cummins v. Schweiker , 670 F.2d 81, 82–83 (7th Cir. 1982) (providing a detailed explan ation of the regulations and the operation of the Grids). While the age and education factors in the Grids arestraightforward, previous work experience is a bit more complicated. That factor, as it is incorporated into the Grids, requires not only identifying the skill level of a claimant’s past work, but also deciding whether she has skills from past jobs that can be transferred to other positions. See 20 C.F.R. § 404.1568(d)(1). If skills are not transferable to new jobs that the claimant can perform, then even substantial previous work history does not weigh in favor of a non-disabled fi nding. See id . The transferability analysis is less searching for older workers, because the Administration does not expect claimants to change industries or work se tt ings near the end of their careers. See id . § 404.1568(d)(4).

A remand here would be futile because the Grids compel

a fi nding that Martin is disabled. Here is how the analysis proceeds under Table 2 (for people limited to light work) and Table 1 (for sedentary work):

 Age: Martin falls into the “advanced age” category because she is over 55. See 20 C.F.R. § 404.1563(e).No. 19-1957 13

 Education: Martin graduated from highschool and cannot perform skilled work because her RFC limits her to unskilled work. See id . § 404.1568(a)-(c) (explaining skill levels).

 Previous Work Experience: The vocational expert considered Martin’s past work to be semi-skilled. The agency’s regulations statethat those skills are not transferable to unskilled work. See id . § 404.1568(d).

With those a tt ributes, the Grids direct a fi nding of disabled because Martin, as a result of her severe physical conditions, is limited to either light or sedentary work:

Rule Age Education Previous Work Experience Decision

201.06 (sedentary work) Advanced age High school graduate or more— does not provide for direct entry into skilled work Skilled or semiskilled—skills not transferable Disabled

202.06 (light work) Advanced age High school graduate or more— does not provide for direct entry into skilled work Skilled or semiskilled—skills not transferable Disabled

20 C.F.R. Part 404, Subpart P, Appendix 2, §§ 201.06, 202.06. While the Administration invites us to fi nd that Martin can perform more than light or sedentary work—a proposition that, as we have emphasized, is not supported by substantial evidence—it agrees that the Grids would direct a disabled fi nding on the basis that we decide this appeal.14 No. 19-1957

* * * Eight years of proceedings have developed this record to the point of certainty: Martin’s physical limitations leave her unable to perform any work above the light level. Given her restricted range of motion and symptoms of pain, light exertion would likely be a challenge for Martin because it requires “a good deal of walking or standing.” 20 C.F.R. § 404.1567(b). But we need not decide the precise scope of Martin’s physical limitations because it does not change the outcome. Applying the Grids shows that Martin is disabled. The vast majority of the time we will not award bene fi tsand instead remand for further proceedings. But here the application of the Grids and the evidence developed in these prolonged proceedings combine to make Martin’s entitlement to bene fi ts clear. By our estimation, and mindful of the administrative guidance embodied in the agency’s Program Operations Manual System, Martin’s bene fi ts award should begin on March 9, 2010—the day after her fi rst of three applications was denied and not further challenged on appeal. The record shows that she has been eligible under the Grids since that date. For these reasons, we REVERSE and REMAND with an instruction to award bene fi ts.