UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

CHARLES W. MARLEY, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Cause No. 1:14-cv-157 

 ) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on petition for judicial review of the decision of the 

Commissioner filed by the plaintiff, Charles W. Marley, on May 22, 2014. For the following 

reasons, the decision of the Commissioner is AFFIRMED. 

Background 

 The plaintiff, Charles W. Marley, filed an application for Disability Insurance Benefits on 

June 19, 2009, and for Supplemental Security Income on April 28, 2010, alleging a disability 

onset date of November 5, 2008. (Tr. 102). The Disability Determination Bureau denied 

Marley’s application on October 29, 2009, and again upon reconsideration on November 16, 

2009. (Tr. 102). Marley subsequently filed a timely request for a hearing on November 19, 

2009. (Tr. 102). A hearing was held on September 14, 2010, before Administrative Law Judge 

(ALJ) John Pope, and the ALJ issued an unfavorable decision on December 3, 2010. (Tr. 102–

10). Vocational Expert (VE) Michelle Peters testified at the hearing. (Tr. 102). The Appeals 

Council granted review and remanded the case to an ALJ. (Tr. 120). 

 On January 11, 2011, Marley filed a subsequent claim for benefits. (Tr. 121). The 

Appeals Council found the subsequent claim duplicative and consolidated the new claim and the 
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remanded claim into one. (Tr. 444). A second hearing was held on September 21, 2012, before 

ALJ Steven J. Neary, and the ALJ issued an unfavorable decision on December 4, 2012. (Tr. 

14–25). VE Marie N. Kieffer, Denny Garrett, Marley’s brother, and Marley testified at the 

hearing. (Tr. 14). The Appeals Council denied review, making the ALJ’s decision the final 

decision of the Commissioner. (Tr. 1–10). 

 The ALJ found that Marley met the insured status requirements of the Social Security Act 

through December 31, 2013. (Tr. 16). At step one of the five step sequential analysis for 

determining whether an individual is disabled, the ALJ found that Marley had not engaged in 

substantial gainful activity since November 5, 2008, the alleged onset date. (Tr. 16). At step 

two, the ALJ determined that Marley had the following severe impairments: degenerative disc 

disease, coronary artery disease status post angioplasty, osteoarthritis of the knees, bipolar 

disorder, and cannabis dependence. (Tr. 16). At step three, the ALJ concluded that Marley did 

not have an impairment or combination of impairments that met or medically equaled the 

severity of one of the listed impairments. (Tr. 17). In determining whether Marley had an 

impairment or combination of impairments that met the severity of one of the listed impairments, 

the ALJ considered Listing 1.00 for musculoskeletal impairment, Listing 4.00 for cardiovascular 

disease, Listing 12.04 for affective disorders, Listing 12.06 for anxiety disorders, and Listing 

12.09 for substance addiction disorders. (Tr. 17). For Listing 12.04, the ALJ considered the 

Paragraph B criteria and the Paragraph C criteria. (Tr. 18–21). 

 As part of the Paragraph B criteria, the ALJ found that Marley had moderate difficulties 

in concentration, persistence, and pace. (Tr. 20). Marley spent hours watching television, using 

the computer, and playing video games each day without any apparent difficulty. (Tr. 20). He 

has performed semi-skilled to skilled work previously and completed two years of college. (Tr. 
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20). Marley has average intelligence and has not been diagnosed with an attentional disorder. 

(Tr. 20). Marley testified that his psychotropic medication had controlled his manic phases but 

that he lacked motivation and energy because of depression caused by bipolar disorder. (Tr. 20). 

Additionally, Marley’s brother testified that he was less scatterbrained now. (Tr. 20). 

 In 2009, a consultative psychological examiner suggested that marijuana could be 

negatively affecting Marley’s energy and motivation but that Marley had adequate concentration 

and attention. (Tr. 20). During the exam, Marley’s responses were thorough, his abstract 

reasoning was strong, his memory was good, and he had no cognitive deficits. (Tr. 20). 

However, the ALJ found no other evidence that marijuana use had impacted Marley since his 

alleged onset date. (Tr. 20). On March 9, 2010, Dr. Negi evaluated Marley and found that he 

had a GAF of 55, which indicated moderate difficulty with functioning. (Tr. 20). At that time, 

Marley was not using his prescription medications and had poor concentration, but he appeared 

to have average intelligence. (Tr. 20). 

 On March 26, 2011, Marley had a second consultative psychological exam and was able 

to maintain his concentration and attention. (Tr. 20). Marley’s fund of information and ability to 

abstract were adequate, his IQ appeared average, but his memory was below average. (Tr. 20). 

He could not complete serial 7s and his GAF was 57, which indicated moderate difficulty with 

sustaining functioning. (Tr. 20–21). However, Marley’s subsequent treatment records indicated 

stable functioning. (Tr. 21). A reviewing State Agency psychologist concluded that Marley had 

moderate difficulty with sustaining concentration, persistence, and pace but found that he could 

handle simple routine tasks. (Tr. 21). The ALJ gave those opinions great weight because they 

were consistent with the medical evidence as opposed to Marley’s and his brother’s testimony. 

(Tr. 21). 
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 The ALJ then assessed Marley’s residual functional capacity (RFC) as follows: 

the claimant has the residual functional capacity to perform light 

work as defined in 20 CFR 404.1567(b) and 416.967(b) except that 

the claimant cannot climb, crawl, or kneel; he can occasionally 

balance and stoop. He is limited to simple routine tasks with no 

more than superficial contacts with other people. 

(Tr. 21). The ALJ explained that in considering Marley’s symptoms he followed a two-step 

process. (Tr. 22). First, he determined whether there was an underlying medically determinable 

physical or mental impairment that was shown by a medically acceptable clinical or laboratory 

diagnostic technique that reasonably could be expected to produce Marley’s pain or other 

symptoms. (Tr. 22). Then, he evaluated the intensity, persistence, and limiting effects of the 

symptoms to determine the extent to which they limited Marley’s functioning. (Tr. 22). 

 The ALJ found that Marley’s medically determinable impairments could reasonably 

cause some of the alleged symptoms. (Tr. 22). However, the ALJ found Marley’s testimony that 

he did not come out of his room or leave his home for several days each month incredible. (Tr. 

22). Additionally, he found Marley incredible regarding his marijuana use and the extent and 

nature of his pain. (Tr. 22). The ALJ concluded that Marley had some moderate difficulty with 

sustaining concentration, persistence, and pace. (Tr. 22). Therefore, the ALJ limited him to 

simple routine tasks. (Tr. 22). 

 At step four, the ALJ found that Marley could not perform his past relevant work. (Tr. 

23). Considering Marley’s age, education, work experience, and RFC, the ALJ concluded that 

there were jobs in the national economy that Marley could perform, including electrical 

accessory assembler (200 jobs regionally, 2,000 jobs in Indiana, and 100,000 jobs nationally), 

small products assembler (3,000 jobs regionally, 50,000 jobs in Indiana, and 900,000 jobs 
5 

nationally), and laundry folder (200 jobs regionally, 3,000 jobs in Indiana, and 200,000 jobs 

nationally). 

Discussion 

 The standard for judicial review of an ALJ’s finding that a claimant is not disabled within 

the meaning of the Social Security Act is limited to a determination of whether those findings are 

supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of 

Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”); 

Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097 

(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the 

correct legal standards and supported her decision with substantial evidence.”); Pepper v. Colvin, 

712 F.3d 351, 361–62 (7th Cir. 2013); Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005); 

Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial evidence has 

been defined as “such relevant evidence as a reasonable mind might accept to support such a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 852 

(1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 

2d 140 (1938)); see Bates, 736 F.3d at 1098; Pepper, 712 F.3d at 361–62; Jens v. Barnhart, 347 

F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002). An ALJ’s 

decision must be affirmed if the findings are supported by substantial evidence and if there have 

been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Rice v. Barnhart, 

384 F.3d 363, 368–69 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). 

However, “the decision cannot stand if it lacks evidentiary support or an adequate discussion of 

the issues.” Lopez, 336 F.3d at 539. 
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 Disability and supplemental insurance benefits are available only to those individuals 

who can establish “disability” under the terms of the Social Security Act. The claimant must 

show that he is unable “to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to result in death or which 

has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 

U.S.C. § 423(d)(1)(A). The Social Security regulations enumerate the five-step sequential 

evaluation to be followed when determining whether a claimant has met the burden of 

establishing disability. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the 

claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R. §§ 

404.1520(b), 416.920(b). If he is, the claimant is not disabled and the evaluation process is over. 

If he is not, the ALJ next addresses whether the claimant has a severe impairment or combination 

of impairments that “significantly limits . . . physical or mental ability to do basic work 

activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Williams v. Colvin, 757 F.3d 610, 613 

(7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the claimant’s 

impairments). Third, the ALJ determines whether that severe impairment meets any of the 

impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then 

the impairment is acknowledged by the Commissioner to be conclusively disabling. However, if 

the impairment does not so limit the claimant’s remaining capabilities, the ALJ reviews the 

claimant’s “residual functional capacity” and the physical and mental demands of his past work. 

If, at this fourth step, the claimant can perform his past relevant work, he will be found not 

disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). However, if the claimant shows that his 

impairment is so severe that he is unable to engage in his past relevant work, then the burden of 

proof shifts to the Commissioner to establish that the claimant, in light of his age, education, job 
7 

experience, and functional capacity to work, is capable of performing other work and that such 

work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1520(f), 

416.920(f). 

 Marley has argued that the ALJ erred because he determined that Marley had moderate 

limitations in concentration, persistence, and pace, and failed to incorporate those limitations into 

the hypotheticals he posed to the VE. Furthermore, he has argued that the ALJ erred because 

none of the exceptions apply. The ALJ’s hypothetical asked the VE to assume an individual 

with the same age, education, and work history as Marley. (Tr. 54). Additionally, the individual 

was limited to light or sedentary work and could not climb, crawl, or kneel, but could balance 

and stoop occasionally. (Tr. 54). The ALJ then included the following mental limitations: 

[f]urther assume that the individual could not engage in complex or 

detailed tasks, but remain[s] capable of simple, routine tasks 

consistent with unskilled work that could be performed throughout 

the workday. Further assume that the individual would be limited 

to superficial relations with supervisors, co-workers and others. By 

superficial I mean just ordinary contact with others. 

(Tr. 54). Based on that hypothetical the VE determined that Marley could not perform his past 

relevant work but could perform other work that existed in significant numbers in the national 

economy. (Tr. 54–55). 

 The ALJ’s RFC assessment and the hypothetical posed to the VE must incorporate all of 

the claimant’s limitations supported by the medical record. Yurt v. Colvin, 758 F.3d 850, 857 

(7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010)); 

Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ relies on testimony 

from a vocational expert, the hypothetical question he poses to the VE must incorporate all of the 

claimant’s limitations supported by medical evidence in the record.”). That includes any 

deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d at 857; 
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O’Connor-Spinner, 627 F.3d at 619 (“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) (indicating the hypothetical question “must account for documented limitations of 

‘concentration, persistence, or pace’”) (collecting cases). The most effective way to ensure that 

the VE is fully apprised of the claimant’s limitations is to include them directly in the 

hypothetical. O’Connor-Spinner, 627 F.3d at 619. 

 However, ALJs do not need to explicitly state “concentration, persistence, or pace” in the 

hypothetical for all cases. Yurt, 758 F.3d at 857; O’Connor-Spinner, 627 F.3d at 619. Rather, a 

court may assume a VE’s familiarity with a claimant’s limitations, despite deficiencies in the 

hypothetical, when the VE independently reviewed the medical record or heard testimony 

directly addressing those limitations. O’Connor-Spinner, 627 F.3d at 619; Simila v. Astrue, 573 

F.3d 503, 521 (7th Cir. 2009). This exception does not apply if the ALJ poses a series of 

increasingly restrictive hypotheticals because courts infer that the VE’s attention is focused on 

the hypotheticals and not the record. O’Connor-Spinner, 627 F.3d at 619; Young v. Barnhart, 

362 F.3d 995, 1003 (7th Cir. 2004). Marley has argued that this exception does not apply 

because the ALJ posed a series of increasingly restrictive hypotheticals, and the Commissioner 

has not disputed that argument. The court agrees that the ALJ asked a series of increasing 

restrictive hypotheticals. Therefore, this exception does not apply. 

 An ALJ’s hypothetical may omit “concentration, persistence, or pace” when it is apparent 

that the ALJ’s phrasing specifically excluded tasks that someone with the claimant’s limitations 

could not perform. O’Connor-Spinner, 627 F.3d at 619. For example, courts have upheld 

hypotheticals that restricted a claimant to low-stress work when the limitations were stress or 

panic related. See Johansen v. Barnhart, 314 F.3d 283, 285, 288–89 (7th Cir. 2002) (upholding 
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a hypothetical formulated in terms of “repetitive, low-stress” work because the description 

eliminated positions likely to trigger symptoms of the panic disorder that originated the 

claimant’s moderate limitations in concentration, persistence, or pace); Arnold v. Barnhart, 473 

F.3d 816, 820, 823 (7th Cir. 2007) (upholding a hypothetical that restricted the claimant to lowstress, low-production work when stress-induced headaches, frustration, and anger caused the 

claimant’s difficulties in concentration, persistence, or pace). Marley has argued that this 

exception does not apply because the ALJ did not use the term “low-stress work,” his limitations 

were not stress or panic related, and the Commissioner has not disputed that argument. The 

court agrees that the ALJ did not use the term “low-stress work” and that Marley’s limitations 

are not stress or panic related. Therefore, this exception does not apply. 

 Courts may uphold a hypothetical that does not mention “concentration, persistence, or 

pace” when the underlying conditions were mentioned and the link between the underlying 

condition and the concentration difficulties was apparent enough to incorporate those difficulties 

by reference. See Simila, 573 F.3d at 521–22 (upholding the hypothetical but indicating the 

failure to include the specific limitations was “troubling”). Generally, terms like “simple, 

repetitive tasks” alone do not exclude from the VE’s consideration those positions that present 

significant problems with concentration, persistence, or pace. Stewart, 561 F.3d at 684–85 

(finding a hypothetical limited to simple, routine tasks did not account for limitations of 

concentration, persistence, or pace); see Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 

2003) (finding hypothetical posed as individual of borderline intelligence did not account for 

limitations of concentration). Marley has argued that this exception does not apply because the 

ALJ did not mention his underlying conditions in the hypothetical, and the Commissioner has 
10 

not disputed that argument. The ALJ did not mention Marley’s underlying conditions, and 

therefore, this exception does not apply. 

 The Commissioner has argued that the ALJ did not err because he relied on an RFC from 

a medical source to formulate the hypothetical. If a medical expert makes an RFC 

determination, the ALJ may reasonably rely on that opinion to formulate a hypothetical posed to 

a VE. Johansen v. Barnhart, 314 F.3d at 289; see Calhoun v. Colvin, 2013 WL 3834750, at 

*10 (N.D. Ind. July 24, 2013) (upholding a hypothetical to a VE when the ALJ did not include a 

limitation in concentration, persistence, and pace but relied almost verbatim on a medical 

expert’s RFC). In Milliken, a medical expert found that the claimant could perform unskilled 

work despite her limitations in concentration, persistence, and pace. Milliken v. Astrue, 397 F. 

App’x 218, 222 (7th Cir. 2010). The ALJ’s hypothetical to the VE limited the claimant to 

unskilled work but did not include limitations in concentration, persistence, and pace. Milliken, 

397 F. App’x at 222. However, the Seventh Circuit upheld the hypothetical because it 

adequately accounted for the claimant’s limitations in concentration, persistence, and pace by 

incorporating the medical expert’s assessment that she could perform unskilled work. Milliken, 

397 F. App’x at 222. 

 In this case, Dr. Joseph Pressner, a state agency psychologist, completed a Psychiatric 

Review Technique and a Mental RFC Assessment. (Tr. 840–57). Dr. Pressner found that 

Marley had affective disorders and rated his degree of limitations as mild limitations in activities 

of daily living, mild difficulties in maintaining social functioning, moderate difficulties in 

maintaining concentration, persistence, or pace, and one or two episodes of decompensation. 

(Tr. 844, 854). Although Dr. Pressner concluded that Marley had a severe impairment, he did 

not find that Marley’s impairments met or equaled the criteria of a Listing. (Tr. 854–55). 
11 

 Dr. Pressner also assessed Marley’s RFC as follows: 

[t]he evidence suggests that the [claimant] is able to understand, 

remember, and carry-out simple tasks. The [claimant] can relate on 

at least a superficial basis on an ongoing basis with co-workers and 

supervisors. The [claimant] can attend to task for sufficient periods 

of time to complete tasks. The [claimant] can manage the stresses 

involved with simple work. 

(Tr. 842). Therefore, Dr. Pressner concluded that Marley could perform simple work, despite his 

moderate limitations in concentration, persistence, and pace. 

 Marley has presented persuasive authority from the Southern District of Indiana that 

distinguished Johansen and rejected Milliken, an unpublished decision. E.g., Miller v. Colvin, 

2013 WL 796722, at *3–4 (S.D. Ind. Mar. 1, 2013). However, courts within this district have 

followed Johansen and Milliken, as have other courts within the Southern District of Indiana. 

E.g., Suthers v. Colvin, 2014 WL 772605, at *6 (N.D. Ind. Feb. 25, 2014); Calhoun, 2013 WL 

3834750 at *10; Torres v. Colvin, 2014 WL 4587153, at *17 (N.D. Ind. Sept. 15, 2014); Dehart 

v. Colvin, 2013 WL 6440504, at *4 (S.D. Ind. Dec. 9, 2013). Although Milliken is not binding, 

this court will follow that opinion along with the other opinions from this district. 

 Marley also has complained that the ALJ failed to account for the distinction between the 

ability to learn how to do a task of a given complexity and the ability to stick with a task over a 

sustained period of time. However, Dr. Pressner acknowledged that Marley had moderate 

limitations in his ability to maintain attention and concentration, yet he determined that he could 

manage simple work. Furthermore, Dr. Pressner concluded that Marley could “attend to task for 

sufficient periods of time to complete tasks.” (Tr. 842). The ALJ adopted this opinion, which 

reflected that Marley had the ability both to carry out instructions and to complete tasks in their 

entirety. The court finds that this accounts for both Marley’s ability to learn and to sustain tasks 

until completion. 
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 Similar to Johansen and Milliken, the ALJ relied on a medical source’s RFC to 

formulate the hypothetical to the VE. The ALJ’s hypothetical limited Marley to “simple, routine 

tasks consistent with unskilled work” and “to superficial relations with supervisors, co-workers 

and others.” Although not verbatim, the ALJ’s hypothetical incorporated Dr. Pressner’s RFC 

that Marley could perform simple work. Therefore, the ALJ adequately accounted for Marley’s 

moderate limitations in concentration, persistence, and pace and did not err. 

 Based on the foregoing reasons, the decision of the Commissioner is AFFIRMED. 

 ENTERED this 1st day of July, 2015. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge