UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

ROBERT LEE DERRY, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 1:15-cv-396 

 ) 

NANCY A. BERRYHILL, ) 

Acting Commissioner of Social Security,1

 ) 

 ) 

 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, Robert Lee Derry, on December 23, 2015.2

 For the 

following reasons, the decision of the Commissioner is REMANDED. 

Background 

 The plaintiff, Robert Lee Derry, filed an application for Disability Insurance Benefits and 

Supplemental Security Income on April 1, 2013, alleging a disability onset date of May 3, 2012. 

(Tr. 43). The Disability Determination Bureau denied Derry’s application on May 28, 2013, and 

again upon reconsideration on July 26, 2013. (Tr. 43). Derry subsequently filed a timely request 

for a hearing on August 29, 2013. (Tr. 43). A hearing was held on February 14, 2014, before 

Administrative Law Judge (ALJ) Maryann S. Bright, and the ALJ issued an unfavorable decision 

                                                       1

 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the 

Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. 

Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last 

sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 

2

 On April 1, 2016, this case was reassigned to Magistrate Judge Susan L. Collins upon the parties’ consent 

under 28 U.S.C. § 636(c), and then was reassigned to Magistrate Judge Andrew P. Rodovich. On October 12, 2016, 

the court ordered the parties to file any objection to Magistrate Judge Rodovich conducting all further proceedings in 

this case. Because neither party filed an objection, this court finds that the parties voluntarily consent to Magistrate 

Judge Rodovich under 28 U.S.C. § 636(c). 
2 

on May 14, 2014. (Tr. 43-53). Vocational Expert (VE) Sharon D. Ringenberg and Derry 

testified at the hearing. (Tr. 43). The Appeals Council denied review, making the ALJ’s 

decision the final decision of the Commissioner. (Tr. 1-3). 

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

through March 31, 2017. (Tr. 45). At step one of the five step sequential analysis for 

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

substantial gainful activity since May 3, 2012, the alleged onset date. (Tr. 45). At step two, the 

ALJ determined that Derry had the following severe impairments: obesity, bipolar I disorder, 

and polysubstance dependence. (Tr. 45). The ALJ concluded that a knee injury mentioned by 

Derry was not a medically determinable impairment. (Tr. 45). There were no medical records of 

the injury or allegations that it hindered him in any way. (Tr. 45). Also, the ALJ indicated that 

there was no evidence in the physicians’ chart notes, reports, or any allegations made by Derry or 

others that his obesity taken singly or in combination with other impairments reached the level of 

medical equivalence to a listing. (Tr. 46). 

 At step three, the ALJ concluded that Derry did not have an impairment or combination 

of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 

46). Specifically, the ALJ determined that Derry’s mental impairments did not meet or 

medically equal listing 12.04, Affective Disorders, or 12.09, Substance Addiction Disorders. 

(Tr. 46). She considered the paragraph B criteria for mental impairments, which required at least 

two of the following: 

marked restriction of activities of daily living; marked difficulties in 

maintaining social functioning; marked difficulties in maintaining 

concentration, persistence, or pace; or repeated episodes of 

decompensation, each of extended duration. 
3 

(Tr. 46). The ALJ defined a marked limitation as more than moderate but less than extreme and 

repeated episodes of decompensation, each of extended duration, as three episodes within one 

year or once every four months with each episode lasting at least two weeks. (Tr. 46). 

 The ALJ found that Derry had mild restrictions in daily living activities. (Tr. 46). She 

noted that Derry did household chores, prepared meals, shopped for groceries, and cared 

appropriately for his grooming and hygiene. (Tr. 46). The ALJ found that Derry had moderate 

difficulties in social functioning. (Tr. 46). The ALJ noted that Derry did not have a history of 

altercations or difficulty getting along with authority figures. (Tr. 46). Derry indicated that he 

avoided social interaction because of mood swings and paranoia. (Tr. 46). However, he testified 

that he was able to deal with cashiers when shopping and with acquaintances when playing 

tabletop games. (Tr. 46). 

 The ALJ found that Derry had moderate difficulties in concentration, persistence, or 

pace. (Tr. 46). Derry indicated that he had difficulty concentrating, but acknowledged that he 

could pay attention up to three hours at a time. (Tr. 46). Later, he reported a 30 minute period of 

attention, which the ALJ noted as inconsistent with his testimony that playing tabletop games 

could last for about two hours. (Tr. 46). Derry had well developed mental arithmetic skills and 

did several serial 7 subtractions quickly and without error at the consultative psychological 

examination. (Tr. 46). The consultative psychologist determined that Derry’s long-term, 

intermediate, and short-term memory was intact. (Tr. 46-47). 

 Derry testified that he had episodes of crying spells and emotional breakdowns. (Tr. 47). 

He indicated that his uncontrollable crying had lasted at least an hour and, rarely it would last up 

to four hours. (Tr. 47). The ALJ noted that episodes like this, if frequent enough, interfered with 

concentration, persistence, or pace. (Tr. 47). The VE testified that three absences or 
4 

unauthorized departures per month would preclude employment. (Tr. 47). The ALJ found that 

Derry had not shown that he had or was expected to have a period of 12 months of crying spells 

that would interfere with his employment. (Tr. 47). 

 The ALJ indicated that after the alleged onset date Derry’s mood was better after a 

medication change. (Tr. 47). Derry reported that he had made plans to attend school and to care 

for his sick aunt, and that he was experiencing little depression. (Tr. 47). In November 2012, 

Derry reported that he was sharp with others but that he was not experiencing any depression. 

(Tr. 47). On December 14, 2012, Derry indicated for the first time since his alleged onset date 

that he had mood changes of sadness and tearfulness. (Tr. 47). 

 In January of 2013, Derry spent two days as an in-patient. (Tr. 47). Derry was crying, 

overwhelmed, and depressed, which the mental health professionals attributed to him running out 

of medication. (Tr. 47). Derry was restarted on his medications, with a slight change, and in late 

January reported that his mood was stable and he had no racing thoughts or thoughts to harm 

himself or others. (Tr. 47). In February 2013, Derry reported to a few bad days, but in March of 

2013 he complained of feelings of anger. (Tr. 47). In April, June, and July of 2013, his crying 

spells occurred once or more per week. (Tr. 47). In August, after being compliant with his 

medications, a treating board-certified clinical nurse indicated that he was slightly better. (Tr. 

47). 

 However, a few days later in August, Derry took an excessive dose of prescription 

medication and was treated as an in-patient at Parkview Hospital for six days and later released 

with follow up out-patient therapy. (Tr. 47). Derry indicated that it was not a suicide attempt. 

(Tr. 47). He became compliant with his medications and was reported as “slightly better” until 

he ran out of medication in November 2013. (Tr. 47). A clinical nurse specialist reported in 
5 

January of 2014 that Derry was much better, although he had paranoid thoughts and some 

impaired recent memory. (Tr. 47-48). Derry reported that in the past three months he had only 

one bad mood swing. (Tr. 48). 

 The ALJ noted that the record indicated that Derry had frequent emotional breakdowns 

from April through July of 2013, however, that was less than the 12 months as required by the 

Social Security regulations. (Tr. 48). Also, the ALJ found that Derry had experienced episodes 

of decompensation, but none of extended duration. (Tr. 48). The ALJ noted that Derry was an 

in-patient in January of 2013 because of having run out of medications and in August 2013 as a 

result of an intentional recreational overdosing on prescription medication. (Tr. 48). Derry did 

not satisfy the paragraph B criteria because his mental impairments did not cause at least two 

marked limitations or one marked limitation and repeated episodes of decompensation of 

extended duration. (Tr. 48). 

 Additionally, the ALJ found that Derry did not meet the requirements for paragraph C. 

(Tr. 48). She indicated that Derry did not have repeated episodes of decompensation and 

concluded that a marginal adjustment in mental demands or an environmental change would not 

cause Derry to decompensate. (Tr. 48). The ALJ also stated that there was no evidence that 

Derry could not function outside his home or a highly supportive living arrangement. (Tr. 48). 

 The ALJ then assessed Derry’s residual function capacity (RFC) as follows: 

the claimant has the residual function capacity to perform medium work 

as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant 

can lift, carry, push and pull 50 pounds occasionally and 25 pounds 

frequently; can stand or walk for approximately 6 hours out of an 8-hour 

workday; can sit for approximately 6 hours out of an 8-hour workday, 

with normal breaks; can frequently climb ramps and stairs; can 

frequently balance, stoop, kneel, crouch, and crawl; can occasionally 

climb ladders, ropes, or scaffolds; must avoid frequent exposure to 

extreme cold, unprotected heights and open and dangerous machinery; 

cannot engage in complex or detailed tasks, but can perform simple, 
6 

routine, repetitive tasks consistent with unskilled work; can sustain and 

attend to tasks throughout the eight-hour workday; is limited to 

superficial interaction with coworkers, supervisors and the public, with 

superficial interaction defined as occasional and casual contact not 

involving prolonged conversation or discussion of involved issues, but 

contact with supervisors still involves necessary instruction; is best 

suited to working in semi-isolation from others or as part of a small 

group; is limited to low stress work defined as having only occasional 

decision-making required and with only occasional changes in the work 

setting; and is limited to work with no production rate or pace work. 

(Tr. 48-49). The ALJ explained that in considering Derry’s symptoms she followed a two-step 

process. (Tr. 49). First, she determined whether there was an underlying medically determinable 

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

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

symptoms. (Tr. 49). Then, she evaluated the intensity, persistence, and limiting effects of the 

symptoms to determine the extent to which they limited Derry’s functioning. (Tr. 49). 

 Derry testified to living with his parents and helping care for his mother who was ill. (Tr. 

49). Also, he drove to the grocery store and ran other errands for two to three hours per week. 

(Tr. 49). He testified that while working he would have “emotional breakdowns” once every 

week or every two weeks. (Tr. 49). These breakdowns consisted of uncontrollable crying 

lasting at least an hour, but some lasted up to four hours. (Tr. 49). Also, he had paranoid 

illusions that others were laughing at him. (Tr. 49). Derry was being treated by Viann 

Ellsworth, a board-certified clinical nurse specialist, at Park Center with prescriptions and 

therapy with a caseworker/social worker. (Tr. 49). Derry reported that the medications were 

effective and his only side-effects were occasional twitches, jaw grinding, and longer periods of 

sleep. (Tr. 50). 

 Derry testified that in January of 2013 he ran out of medication and went to Parkview 

Behavioral Health facility on an emergency basis for thoughts of harming himself and/or others. 
7 

(Tr. 50). Derry also testified to a prescription overdose that occurred in August 2013. (Tr. 50). 

After the overdose, Derry was treated as an in-patient at Parkview Hospital for six days and then 

released to follow up with out-patient therapy. (Tr. 50). Derry stated that he was nervous when 

he was out of the house in a social situation. (Tr. 50). However, the ALJ noted that he was able 

to get together with others to play tabletop games for a couple hours at a time and that he kept in 

touch with friends he knew from Texas when he lived there. (Tr. 50). 

 Derry reported to the psychologist who performed the consultative examination in April 

of 2013 that he had emotional breakdowns that consisted of uncontrollable crying and that he 

had very little energy or motivation, which prevented him from doing much. (Tr. 50). He 

characterized his mood as rage and anger. (Tr. 50). Also, Derry indicated that he had happy 

moods marked by shopping sprees and excessive spending but that he had occasional thoughts of 

seriously harming others. (Tr. 50). The ALJ found that Derry’s medically determinable 

impairments reasonably could cause the alleged symptoms, but she found that Derry was 

incredible regarding the intensity, persistence, and limiting effects of the symptoms. (Tr. 50). 

 The ALJ indicated that Derry received various Global Assessment of Functioning (GAF) 

scores from both his own mental health providers and from the psychologist who performed the 

consultative examination. (Tr. 51). The ALJ noted in February 2013, Derry received a score of 

45 and in January 2014 a score of 47. (Tr. 51). However, the ALJ gave little weight to the 

scores because they were assigned by a licensed mental health counselor and a clinician. (Tr. 

51). Also, the ALJ noted that the scores were disproportionate with the consultative 

psychologist’s score of 60 assigned in April 2013 and the scores of 50 from medical doctors in 

August 2012. (Tr. 51). The ALJ found that the GAF score of 60 was consistent with the 

findings of the State agency. (Tr. 51). The ALJ noted that Derry’s GAF scores of 50 were 
8 

technically in the severe range for occupational and/or social functional difficulties, but verged 

onto the moderate range being one point below it. (Tr. 51). The ALJ indicated that GAF scores 

incorporate issues outside mental impairment like housing, employment, and financial problems. 

(Tr. 51). Therefore, the ALJ found that without those factors, Derry’s GAF score of 50 was in 

the moderate range. (Tr. 51). 

 The ALJ assigned great weight to the State agency’s psychological consultants because 

their opinions were consistent with Derry’s psychological care and evaluation. (Tr. 51). The 

ALJ discounted the allegations made by Derry’s father because substantial reasons existed in the 

medical evidence, or lack thereof medical evidence, to discount the limiting effects of Derry’s 

problems. (Tr. 51). 

 At step four, the ALJ found the Derry was unable to perform any past relevant work. (Tr. 

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

there were jobs in the national economy that he could perform, including a laundry worker 

(3,000 jobs statewide and 150,000 nationwide), an industrial cleaner (2,000 jobs statewide and 

60,000 nationwide), and a dishwasher (3,000 statewide and 200,000 nationwide). (Tr. 52). The 

ALJ noted that the VE indicated that the numbers of dishwasher jobs would be reduced by 

approximately half when the work would take place in semi-isolation or in a small group. (Tr. 

53). 

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.”); 
9 

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.”). Courts have 

defined substantial evidence 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. A court must affirm an ALJ’s 

decision if the ALJ supported her findings with substantial evidence and if there have been no 

errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However, 

“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.” 

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

 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 
10 

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 

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). 

 First, Derry has argued that the ALJ failed to incorporate her findings that he had a 

moderate degree of limitation in concentration, persistence, or pace into the hypothetical 

question posed to the VE. 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 she 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 
11 

at 857; 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 state explicitly “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). The ALJ posed a series of increasingly restrictive 

hypotheticals. (Tr. 86-88). Therefore, this exception does not apply. 

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

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 

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 
12 

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). The ALJ’s question limited Derry 

to low stress work, however, his limitations were not stress or panic related. 

 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 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) (posing hypothetical as individual of borderline intelligence did not account for limitations 

of concentration).  Derry has argued that the ALJ did not mention his underlying conditions in 

the hypothetical, and the Commissioner has not disputed that argument. Therefore, this 

exception does not apply. 

 The ALJ found that Derry had moderate difficulties in concentration, persistence, or 

pace. (Tr. 46-47). The ALJ’s hypothetical included the following mental limitations: 

The individual is unable to engage in complex or detailed task but can 

perform simple routine repetitive tasks consistent with unskilled work and 

is able to sustain an [INAUDIBLE] tasks throughout the workday. The 

individual is limited to superficial interaction with co-workers, supervisors 

and the public with superficial interaction defined as occasional and casual 

contact not involving prolonged conversation or discussion of involved 
13 

issues. Contact with supervisors still involves necessary instruction. In 

addition, the individual is limited to low stress work defined as having only 

occasional decision making required and only occasional changes in the 

work setting. 

 (Tr. 86-87). Based on the hypothetical the VE determined that Derry could not perform his past 

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

national economy. (Tr. 87). 

 The ALJ included a limitation to a low stress job requiring only occasional decision 

making and only occasional changes in the work setting. (Tr. 87). Derry acknowledged that a 

hypothetical that restricts a claimant to low stress work is proper when the mental limitations are 

stress or panic related. Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir. 2002). However, he 

has argued that the ALJ did not indicate in her decision that Derry’s mental limitations were 

primarily stress or panic related. Also, Derry has argued that changes in work settings are related 

to adaptation, rather than the ability to sustain concentration and persistence. 

 The Commissioner has argued that the ALJ did not err because she relied on relevant 

evidence in the record, Derry’s mental status exam, his daily activities, reactions to his 

medications, and medical opinions in finding that Derry had moderate difficulties in 

concentration, persistence, or pace. The ALJ noted that during the consultative mental status 

exam Derry had well developed arithmetic skills and displayed intact long-term and intermediate 

memory. (Tr. 46-47). The ALJ found that when he was compliant with his medications his 

mood was stable. 

 Also, the Commissioner contends that the ALJ relied on the opinions of Ken Lovko, 

Ph.D. and Donna Unversaw, Ph.D., State agency psychologists. The ALJ assigned great weight 

to their opinions that Derry did not have adaptation limitations and could manage the stresses 

involved with semiskilled work. (Tr. 98,121). If a medical expert makes an RFC determination, 
14 

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. 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). 

 The Commissioner has indicated that the ALJ used alternative phrasing to address the 

complexity of the tasks that Derry could perform and his ability to stick with a given task over a 

sustained period of time. The ALJ limited Derry to “simple, routine and repetitive tasks 

consistent with unskilled work,” and the additional limitations to “low stress work defined as 

only occasional decision-making required and with only occasional changes in the work setting.” 

The Commissioner has indicated that even if the ALJ did not identify any specific stress or panic 

related problems, in her opinion she reported a basis for the functional limitations by noting that 

Derry was limited to semi-isolation from others, low stress tasks, and no production pace work to 

give deference to Derry’s depression and paranoid thoughts around others. 

 The hypothetical the ALJ presented to the VE was not supported by the medical record. 

Therefore, the ALJ failed to build an accurate and logical bridge from her evidence to the record. 

Steele, 290 F.3d at 941. The appropriateness of a hypothetical question posed to a vocational 

expert, “[a]ll that is required is that the hypothetical question be supported by the medical 

evidence in the record.” Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987). 

 The ALJ’s hypothetical fails to account for Derry’s limitations in concentration, 

persistence, or pace and only accounts for “simple, routine, competitive tasks,” which the 7th 

Circuit has indicated is insufficient. Stewart, 561 F.3d at 684–85. Next, the hypothetical limits 

Derry to superficial interaction with coworkers, supervisors, and the public with superficial 

interaction defined as occasional and casual contact not involving prolonged conversation or 
15 

discussion of involved issues. In addition, Derry was best suited work in semi-isolation from 

others or as part of a small group. The circuit court repeatedly has rejected the notion that a 

hypothetical confining the claimant to simple, routine tasks and limited interactions with others 

adequately captures temperamental deficiencies and limitations in concentration, persistence, and 

pace. Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014); See generally Stewart, 561 F.3d at 

685. The hypothetical also limits Derry to work with no production rate or work pace. 

However, without such a definition, it was impossible for the VE to assess whether a person with 

Derry’s limitations could maintain the pace proposed. Varga v. Colvin, 794 F.3d 809, 815 (7th 

Cir. 2015). 

 Finally, the ALJ limits Derry to low stress work related to having only occasional 

decision making and only occasional changes in the work setting. First, a hypothetical that 

restricts a claimant to low-stress work is proper when the mental limitations are stress-related or 

panic-related. Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir. 2002). The record is devoid 

of any stress or panic related mental limitations. Next, “few if any work place changes” with 

limited “interaction with coworkers or supervisors” deals largely with workplace adaptation, 

rather than concentration, pace, or persistence. Varga, 794 at 815. The ALJ should include 

Derry’s limitations in concentration, persistence, and pace in the VE hypothetical on remand. 

 Next, Derry has argued that the ALJ improperly evaluated his GAF scores. The GAF 

scale measures a “clinician's judgment of the individual's overall level of functioning.” Am. 

Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32–34 (Text Revision, 

4th ed. 2000). The established procedures require a mental health professional to assess an 

individual's current level of symptom severity and current level of functioning, and adopt the 

lower of the two scores as the final score. Am. Psychiatric Ass'n, Diagnostic & Statistical 
16 

Manual of Mental Disorders, 32–34 (Text Revision, 4th ed. 2000). A GAF score ranging from 

41–50 indicates serious symptoms; scores ranging from 51–60 indicate moderate symptoms; and 

scores ranging from 61–70 indicate mild symptoms. Am. Psychiatric Ass'n, Diagnostic & 

Statistical Manual of Mental Disorders, 32–34 (Text Revision, 4th ed. 2000). GAF scores are 

“useful for planning treatment” and are measures of both severity of symptoms and functional 

level. Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32–34 

(Text Revision, 4th ed. 2000). “[N]owhere do the Social Security regulations or case law require 

an ALJ to determine the extent of an individual's disability based entirely on his GAF score.” 

Wilkins v. Barnhart, 69 Fed. Appx. 775, 780 (7th Cir. 2003) (citing Howard v. Comm'r of Soc. 

Sec., 276 F.3d 235, 241 (6th Cir. 2002)). 

 Derry has argued that the ALJ improperly evaluated his GAF scores by assigning more 

weight to a particular score. Derry indicated that his bipolar disease was an episodic disease, 

therefore, the scores depicted functioning at the time of the rating. The ALJ noted that two of 

Derry’s scores were surprisingly low: 45 in February of 2013 and 47 in January of 2014. (Tr. 

51). However, the ALJ gave those scores little weight because they were assigned by a licensed 

mental health counselor and by a clinician. (Tr. 51). This was proper because to be an 

“acceptable medical source,” the health care professional must be a licensed physician or a 

licensed or certified psychologist. 20 C.F.R. 416.913(a)(1)-(2). Also, the scores were 

inconsistent with the GAF score of 60 assigned by the consultative psychologist in April 2013 

and the GAF score of 50 assigned by medical doctors in August 2012. (Tr. 51). It was 

permissible for the ALJ to give greater weight to the GAF score that was more consistent with 

the remainder of the record. Oneal v. Colvin, 2015 WL 1291891, at *4 (S.D. Ind. 2015). 
17 

 Derry has argued that the ALJ claimed that GAF scores incorporate issues outside of the 

mental impairment like housing, employment, and financial problems was err. However, this 

argument “amounts to nothing more than a dislike of the ALJ’s phraseology.” Rice v. Barnhart, 

384 F.3d 363, 371 (7th Cir. 2004). Derry indicated that the ALJ chose to discuss the GAF 

scores, therefore, an improper evaluation was error. Finally, Derry has argued that the ALJ 

noted that he had missed appointments and was out of medications but that she failed to inquire 

with Derry or his treating sources as to the reasoning. 

 A low GAF score alone is insufficient to overturn an ALJ's finding of no disability. See 

Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). The ALJ adequately articulated the GAF 

scores and explained her evaluation of Derry’s scores. Therefore, the ALJ was able to build an 

accurate and logical bridge from the evidence to her conclusion. Steele, 290 F.3d at 941. 

 Based on the foregoing reasons, the decision of the Commissioner is REMANDED for 

further proceedings consistent with this order. 

 ENTERED this 28th day of February, 2017. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge