UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BOBBY REED, )

)

Plaintiff, )

)

v. ) Cause No. 3:15-cv-177

)

CAROLYN W. COLVIN, )

Acting Commissioner of Social Security, )

)

Defendant. )

OPINION & ORDER

Bobby Reed seeks review of the Social Security Administration’s decision to deny

his application for Social Security Disability benefits and Supplemental Security Income

benefits. Reed claims he has been disabled since January 26, 2012, due to a combination

of among other things, degenerative disc disease of the cervical and lumbar spines,

obesity, carpal tunnel syndrome and depression. Following a hearing before an

Administrative Law Judge, Reed’s application for benefits was denied on the grounds

that he could still perform a significant number of jobs in the national economy. Because

the ALJ erred in not including all of Reed’s credible mental limitations supported by the

medical record when posing his hypothetical to the Vocational Expert (“VE”), the

decision of the Commissioner of the SSA will be remanded on that issue.

Background

Reed’s pain complaints date back to at least 2007, and he was eventually referred

to Dr. Cha, a pain management specialist, in January 2011 for treatment. (DE 6 at 312,
353.) Dr. Cha reported that Reed “describes [his] symptoms as a dull, aching sensation

with an occasional sharp, stabbing component that spreads across the neck into the

bilateral shoulders. . . . It is rated as high as 10/10 on the pain scale.” (Id. at 353.) He

further noted that Reed’s pain had “become quite debilitating in nature,” causing

“severe functional limitations.” (Id.) After undergoing bilateral cervical medial branch

blocks for treatment of neck pain, Reed reported immediately experiencing increased

headache pain. (Id. at 350.) He also said in a February 2011 follow-up that “[h]is

medications have only slightly helped with the pain.” (Id.) Dr. Cha prescribed more

medication (id. at 351), but in a July 2011 follow-up Reed reported continuing “severe

neck pain” and “frequent recurrent headaches associated with [it].” (Id. at 342.) In

November 2011, after multiple follow-up visits, Reed continued to report neck pain

“radiating up to the back of the head” and increased lower back pain. (Id. at 338.)

Dr. Cha continued treating Reed’s pain through August 2013 but with mixed

results: sometimes the pain decreased in response to medication, but it ultimately

returned, especially after branch blocks. (Id. at 330–38, 383, 392–94, 428–42.) In a June

2013 letter, Dr. Cha opined that the pain has “made it almost impossible” for Reed to

“consistently maintain a job because of the limitations from his pain.” (Id. at 391.) Dr.

Cha recounted Reed’s treatment history in a September 2013 letter and concluded that

“[b]ased on the long-standing history of his treatment with our clinic as well as

dependence on long-term opioid pain medication management, it appears that [Reed] is

not likely to recover any further from his chronic pain issues related to his spine

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pathology.” (Id. at 546.) 

The Spinal Impairment Questionnaire that Dr. Cha completed diagnoses Reed’s

conditions as cervical spondylosis which is a osteoarthritis in the spine. He was also

diagnosed with severe and ongoing neck pain (called “cervicalgia”), as well as low back

pain (called “lumbago”), and other related ailments. (Id. at 548.) Dr. Cha noted that

Reed’s pain or other symptoms are periodically severe enough to interfere with

attention and concentration and that Reed can only tolerate a low work stress

environment, among other limitations. (Id. at 552–53.)

After Reed filed for disability benefits in June and July 2012, alleging a disability

onset date of January 26, 2012 (id. at 211–18, 227–34), consulting physician Dr. Inabnit

saw Reed and performed a disability examination. (Id. at 374–81.) After noting Reed’s

history of “chronic neck pain and upper extremity paresthesias” (id. at 374), Dr. Inabnit

concluded that Reed has evidence of cervicalgia, degenerative disc disease at C5-C6 and

C6-C7, “smoker,” chronic low back pain, mild bulging disc at L4-L5, and posterior

ligamentous thickening and facet arthropathy at L2-L3 through L4-L5. (Id. at 381.) Dr.

Inabnit recommended “a lateral chest x-ray, pulmonary function study, and a smoking

cessation program” and suggested he “would treat him conservatively.” (Id.) Neither

Dr. Cha nor Dr. Inabnit completed a residual functional capacity assessment. 

Reed’s disability claims were initially denied. (Id. at 135–52.) After his claims

were denied upon reconsideration (id. at 158–171), Reed requested an administrative

hearing in January 2013 (id. at 172–73) which ultimately took place on November 19,

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2013 (id. at 65). The ALJ that presided over the hearing issued a decision denying

benefits. (Id. at 23–34.) The ALJ employed the standard five-step analysis. (Id.) At step

one, the ALJ confirmed that Reed had not engaged in substantial gainful activity since

his application date. (Id. at 26.) At step two, the ALJ found Reed suffers from the

following severe impairments: degenerative disc disease of the cervical and lumbar

spines; obesity; status post remote bilateral carpal tunnel syndrome release and

epicondyle surgeries; and depression. (Id.) At step three the ALJ found that Reed’s

conditions do not satisfy any listed impairment, but found that Reed has “moderate

difficulties in maintaining concentration, persistence or pace” based on “[Reed’s]

reports of concentration/attention difficulties as well as headache complaints after his

injection therapy treatment for his back pain. It also accounts for any recurrent back

pain.” (Id. at 26–27.) At step four, in analyzing Reed’s residual functional capacity, the

ALJ found that Reed could:

[P]erform less than the full range of sedentary work as defined in 20 C.F.R.

404.1567(a) and 416.967(a). The claimant could lift/carry and push/pull a maximum

of 10 pounds; sit for a total of about six hours in an eight-hour workday and

stand/walk for a total of about two hours in an eight-hour workday. The claimant’s

ability to stand is limited to increments of 30 minutes at one time. The claimant

could never climb ladders, ropes, scaffolds, but he could occasionally climb ramps

and stairs, balance, stoop, kneel, crouch and crawl. He could frequently handle and

finger bilaterally. He must avoid concentrated exposure to vibrations. The claimant

could understand, remember and carryout simple instructions; he could make

judgments on simple work related decisions; he could interact appropriately with

coworkers and supervisors in a routine work setting; he could respond to usual

work situations and to changes in a routine work setting. 

(Id. at 27.) The ALJ gave Dr. Cha’s opinions “some weight” (id. at 31–32) and found

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Reed’s “statements concerning the intensity, persistence and limiting effects of [his]

symptoms . . . not entirely credible” (id. at 28) when analyzing Reed’s RFC. At step five,

the ALJ found Reed could not perform past relevant work but there were a sufficiently

significant number of jobs in the national economy he could perform. (Id. at 32–33.) The

ALJ’s specific RFC findings, the hypothetical the ALJ posed to the VE to determine if

there were a significant number of jobs in the national economy Reed could perform,

and relevant testimony at the hearing will be recounted in my discussion below as

necessary. 

Reed argues that the ALJ should have given Dr. Cha’s opinions controlling

weight, that the ALJ erred in evaluating Reed’s credibility, and that the hypothetical the

ALJ posed to the VE was insufficient. Because I find there is sufficient ground to

remand this case on the argument concerning the hypothetical, I will only address that

argument in this opinion. But upon remand, the ALJ should address Reed’s other

arguments as appropriate.

Discussion

My review of an ALJ’s decision to deny social security benefits is limited to

determining whether the decision is supported by substantial evidence. Young v.

Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). “Evidence is substantial if a reasonable

person would accept it as adequate to support the conclusion.” Id.

Turning to the issue in this case, “both the hypothetical posed to the VE and the

ALJ’s RFC assessment must incorporate all of the claimant’s limitations supported by

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the medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (collecting cases).

The hypothetical question the ALJ poses to the VE “must account for documented

limitations of ‘concentration, persistence, or pace,’” but the ALJ does not have to use

those exact words. Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009); see Yurt v. Colvin,

758 F.3d 850, 857 (7th Cir. 2014). But, if the ALJ doesn’t use words to that effect, I cannot

assume the VE is “apprised of such limitations unless she has independently reviewed

the medical record,” for instance by reviewing the claimant’s medical history or hearing

testimony about the claimant’s limitations omitted from the hypothetical. Yurt, 758 F.3d

at 857–58. Thus in the absence of a VE’s independent review of the medical records, a

hypothetical must incorporate medically-supported limitations of concentration,

persistence, or pace in some way. See Varga, 794 F.3d at 814; see also O’Connor-Spinner v.

Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (upholding ALJ’s hypothetical that “specifically

excluded those tasks that someone with the claimant’s limitations would be unable to

perform” without using the words “concentration, persistence, or pace”). 

So, the ALJ’s hypothetical to the VE presents one threshold issue and two

secondary issues: (1) whether, for the purposes of the hypothetical, Reed has

documented limitations of concentration, persistence, or pace; (2) whether the VE was

independently apprised of Reed’s limitations; and (3) whether the ALJ’s hypothetical

adequately incorporated such limitations. The Commissioner argues that Reed doesn’t

have a moderate limitation in concentration, persistence, or pace for the purposes of his

RFC, or alternatively, that such limitation was incorporated into his RFC and the ALJ’s

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hypothetical to the VE. (DE 15 at 22–25.) Reed, for his part, argues that the ALJ’s

hypothetical was insufficient because it failed to reflect his moderate limitation. (DE 9 at

16–17.)

(1) The ALJ found “moderate limitation in concentration, persistence or

pace” and incorporated this finding into his RFC analysis

The ALJ found at steps two and three of the evaluation process that Reed has

“moderate difficulties in maintaining concentration, persistence or pace,” which the ALJ

alternatively phrased as a “moderate limitation in concentration, persistence or pace.”

(DE 6 at 26.) The ALJ based his finding on “the claimant’s reports of

concentration/attention difficulties as well as headache complaints after his injection

therapy treatment for his back pain. It also accounts for any recurrent back pain.” (Id.)

The Commissioner doesn’t dispute the validity of this finding. The Commissioner

instead argues that this determination at steps two and three is only “used to rate the

severity of mental impairment(s)” at those steps, SSR 96-8p, 1996 WL 374184, at *4, and

thus doesn’t have to be included in the ALJ’s RFC analysis or hypothetical. (DE 15 at

22.) 

The problem with this reasoning is that the hypothetical “must incorporate all of

the claimant’s limitations supported by the medical record.” Varga, 794 F.3d at 813

(emphasis added) (holding ALJ’s hypothetical insufficient because it failed to

incorporate claimant’s step two and three limitation findings based on the medical

record). And the ALJ has to “build an accurate and logical bridge from the evidence to

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his conclusion,” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (citations omitted),

meaning the ALJ’s decision cannot be internally inconsistent. See Dupuis v. Comm’r of

Soc. Sec., No. 1:14-CV-00307-SLC, 2016 WL 1237881, at *9 (N.D. Ind. Mar. 30, 2016).

It would be internally inconsistent for the ALJ to find at steps two and three Reed

has “moderate difficulties in maintaining concentration, persistence or pace” and then

not incorporate that finding into later steps. If the medical record supports finding Reed

has this limitation at steps two and three – and it plainly does — it follows that this

limitation still exists at steps four and five. The SSA regulations are in line with this

reasoning. “The mental RFC assessment used at steps 4 and 5,” for example, “requires a

more detailed assessment by itemizing various functions contained in the broad

categories found in paragraphs B and C of the adult mental disorders listings.” SSR 96-

8p, 1996 WL 374184, at *4 (emphasis added). 

The ALJ, in formulating mental limitations with regard to Reed’s RFC,

considered Reed’s “depression treated with medications, his history of headaches[,] and

his pain complaints.” (DE 6 at 30.) He also considered Reed’s “short attention span,” his

“complaints of headaches connected to the back injections and his medications,” his

need to “re-read sentences in his book two to three times,” and Dr. Cha’s opinion that

Reed “would experience pain periodically that would interfere with his

attention/concentration.” (Id. at 31.) The ALJ further stated that he “placed mental

restrictions in the residual functional capacity” (DE 6 at 30) and that he did so by

assigning a sedentary activity level (id. at 31). But as discussed in more detail below,

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sedentary activity level isn’t sufficient to account for the mental limitations the ALJ

found. So irrespective of what the ALJ says he did or didn’t do, what’s really at issue

here is whether the language of the ALJ’s hypothetical—and by extension, his RFC

determination—actually accounts for Reed’s moderate limitation in concentration,

persistence, or pace.

(2) The ALJ’s hypothetical did not adequately incorporate Reed’s

limitations of concentration, persistence, or pace

The ALJ posed the following hypothetical to the VE:

[P]lease assume an individual of the same age, education, and work experience

as the claimant. This individual would be capable of performing at the light

exertional level; however, it is somewhat modified. The individual is able to lift

up to 20 pounds occasionally, lift and carry 10 pounds frequently, would be able

to sit for about six hours out of eight, would be able to stand or walk for about

two hours out of eight, for a combined total of eight hours per day. However, the

standing would be limited in increments not to exceed one half-hour at one time.

The individual is to never climb ladders, ropes, or scaffolds, but is able to

occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl. The

individual, with respect to handling or fingering bilaterally is limited to frequent

but not constant handling or fingering. The individual, from an environmental

perspective, is to avoid concentrated exposure to vibrations. There are no other

physical limitations . . . . The mental is as follows[:] the individual is able to

understand, remember, and carry out simple instructions. The individual is able

to make judgments on simple work-related decisions. The individual is able to

interact appropriately with supervisors and coworkers in a routine work setting,

and the individual is able to respond to usual work situations and to changes in a

routine work setting. Those are all the limitations for hypothetical number 1. 

(DE 6 at 100–01.) The ALJ further restricted the hypothetical by limiting the individual

to lifting up to 10 pounds occasionally, but the reduction in weight did not change the

VE’s determination that there are other jobs in the regional economy that the

hypothetical individual could perform. (Id. at 101–02.) This second hypothetical was

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apparently the basis for the ALJ’s RFC determination. (Id. at 27.)

To summarize, the ALJ found Reed has a “moderate limitation in concentration,

persistence or pace” based on Reed’s “reports of concentration/attention difficulties as

well as headache complaints after his injection therapy treatment for his back pain” and

“any recurrent back pain.” (Id. at 26.) The ALJ then “placed mental restrictions in the

[RFC]” based on Reed’s “history of headaches and pain complaints,” (id. at 30), and

described an individual that “is able to understand, remember, and carry out simple

instructions” in his hypothetical (id. at 101). But a hypothetical restricting an individual

to carrying out simple tasks does not adequately account for a claimant’s limitations in

concentration, persistence, and pace. Varga v. Colvin, 794 F.3d 809 at 815–16 (7th Cir.

2015); see Yurt v. Colvin, 748 F.3d 850, 855, 858–59 (7th Cir. 2014) (holding hypothetical

that described an individual that can “remember and carry out unskilled task[s]

without special considerations” did not account for claimant’s limitations in

concentration, persistence, or pace); Craft v. Astrue, 539 F.3d 668, 677–78 (7th Cir. 2008)

(holding ALJ’s hypothetical that restricted claimant to unskilled, simple work did not

account for his difficulty with concentration); Young v. Barnhart, 362 F.3d 995, 1004 (7th

Cir. 2004); see also SSR 85-15, 1985 WL 56857 at *6 (1985) (“[B]ecause response to the

demands of work is highly individualized, the skill level of a position is not necessarily

related to the difficulty an individual will have in meeting the demands of the job. A

claimant’s [mental] condition may make performance of an unskilled job as difficult as

an objectively more demanding job.”)

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The Commissioner responds by suggesting that the ALJ’s RFC findings and

hypothetical “reflect that he repeatedly found that [Reed’s] limitations were grounded

only in concentration, not persistence or pace.” (DE 15 at 22–23.) Essentially, the

Commissioner is arguing that the ALJ found Reed has moderate difficulties with

concentration, persistence, or pace—not and pace. The court in Varga rejected this

argument because “[t]he word ‘or’ has an inclusive sense (A or B, or both)” and is used

inclusively in this context. 794 F.3d at 815 (citations omitted). “[T]he agency forms from

which these terms emanate often lump concentration, persistence, and pace together as

an umbrella category” for “one broad category of functioning.” Id. at 815–16. While the

ALJ did specifically mention Reed’s “reports of concentration/attention difficulties”

among other factors (DE 6 at 26, 30–31), that doesn’t mean he excluded difficulties with

persistence or pace from his finding.

This is not a case where the ALJ’s hypothetical “specifically exclude[s] those

tasks that someone with the claimant’s limitations would be unable to perform.” Simila

v. Astrue, 573 F.3d 503, 521–22 (7th Cir. 2009); cf. Capman v. Colvin, 617 Fed. Appx. 575,

579 (7th Cir. 2015) (holding RFC preventing claimant from working in proximity with

others “adequately addressed [claimant’s] deficiencies in concentration, persistence,

and pace” because they “stem[med] from [claimant’s] anxiety attacks” caused by

proximity). The ALJ found, based on the record before him, that Reed has moderate

difficulties with concentration, persistence, or pace brought on not only by back pain

but also by injection therapy treatment for back pain. (DE 6 at 26, 30.) While the physical

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portion of the ALJ’s hypothetical restricts the individual to a “light exertional level” (id.

at 101), that doesn’t account for the mental limitations brought on by Reed’s pain and its

treatment. See Dupuis v. Comm’r of Soc. Sec., No. 1:14-CV-00307-SLC, 2016 WL 1237881,

at *10 (N.D. Ind. Mar. 30, 2016); Gomez v. Colvin, 73 F. Supp. 3d 921, 932 (N.D. Ill. 2014)

(finding ALJ’s limitation to unskilled, low-stress work did not account for claimant’s

concentration problems that stemmed from pain); Copeland v. Astrue, 776 F. Supp. 2d

828, 845 (N.D. Ind. 2011). And as I discussed before, limiting Reed to understanding,

remembering, and carrying out simple instructions won’t do the trick. There was just

nothing incorporating Reed’s pain or headaches into the hypothetical, unlike in Simila v.

Astrue, 573 F.3d 503 (7th Cir. 2009) where the court held a hypothetical that specifically

mentioned the claimant’s headaches and chronic pain syndrome was adequate to orient

the VE to the claimant’s moderate difficulties with concentration, persistence, or pace.

Id. at 522. 

The Commissioner argues that Johansen v. Barnhart, 314 F.3d 283, 286 (7th Cir.

2002) is controlling. (DE 15 at 23.) I am mindful that the ALJ’s step two and three

determinations are separate from and should not be confused with the ALJ’s RFC

findings. SSR 96-8p, 1996 WL 374184, at *4. But the hypothetical in Johansen was

sufficient, despite the ALJ’s omission of a consultative physician’s finding of three areas

of moderate limitation, because the same physician “‘went further’ and ‘translated’ his

findings into a specific RFC assessment opining that the claimant was still able to

perform low-stress, repetitive work.” Yurt v. Colvin, 758 F.3d 850, 858 (7th Cir. 2014)

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(citing Johansen, 314 F.3d at 288–89). Essentially, the Johansen hypothetical’s “description

of ‘repetitive, low-stress work’ specifically excluded positions likely to trigger the panic

disorder that formed the basis of the claimant’s limitations in concentration, persistence,

and pace.” Id. (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 619). 

Substantial evidence doesn’t support the phrasing of the ALJ’s hypothetical

because it doesn’t account for Reed’s mental limitations stemming from his pain and its

treatment. As found by the ALJ, Reed’s pain and its treatment forms the basis of his

limitation in concentration, persistence, and pace. Thus the hypothetical couldn’t have

excluded positions that Reed can’t perform because of his mental limitations. 

(3) The VE was not independently apprised of Reed’s limitations

Any problems in the way the ALJ posed the hypothetical to the VE could be

beside the point if the VE based his conclusions on sources outside of the hypothetical

itself, such as the claimant’s medical records or testimony. But if the record indicates

that the VE didn’t “base[] his conclusions on anything other than the ALJ’s

hypotheticals,” then my review must be confined to the ALJ’s hypotheticals. Simila v.

Astrue, 573 F.3d 503, 521 (7th Cir. 2009). Here, as in Simila, it appears the VE was present

during the entire hearing. (DE 6 at 67 (“After you testify, we’re going to have some

testimony from a [VE], Mr. Gusloff, who is seated right here.”).) But the VE didn’t

indicate that he based his opinions on his review of the medical record or hearing of

testimony, (see DE 6 at 100–03), and the hypothetical restricts the VE to considering the

hypothetical facts (see id. at 101 (“Those are all the limitations for hypothetical number

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1.”).) So I am confined to reviewing the ALJ’s hypothetical to see whether it adequately

incorporated Reed’s moderate difficulties with concentration, persistence, or pace. See

Simila, 573 F.3d at 521. As discussed above, I find it did not.

Conclusion

For the reasons above, the decision of the Commissioner is REMANDED for

further proceedings consistent with this opinion. 

SO ORDERED.

ENTERED: June 28, 2016

s/Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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