In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-1898

CHRISTOPHER JOZEFYK,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 16-CV-1361 — William C. Griesbach, Chief Judge.

____________________

ARGUED APRIL 24, 2019 — DECIDED MAY 8, 2019

____________________

Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.

PER CURIAM. Christopher Jozefyk applied for Disability Insurance Benefits and Supplemental Security Income, claiming 

disability based on several physical and mental conditions, 

including degenerative changes in his cervical spine, lumbar 

strain, obesity, affective disorder, and anxiety disorder. An 

Administrative Law Judge denied benefits, and the district 

court concluded that substantial evidence supported the 
2 No. 18-1898

ALJ’s decision. Jozefyk raises two arguments on appeal: (1) 

the ALJ did not establish a valid waiver of attorney representation before allowing Jozefyk to proceed pro se at the hearing, 

and (2) the residual functional capacity finding did not account for Jozefyk’s moderate limitations in concentration, 

persistence, or pace. Because the record does not substantiate 

either argument, we affirm.

I. BACKGROUND

On appeal, Jozefyk addresses only his mental conditions, 

so we limit our analysis accordingly.

Jozefyk was diagnosed with depression in 2001, but he did 

not receive consistent treatment for his symptoms until more 

than a decade later. In May 2013, psychologist William Camp 

diagnosed Jozefyk with generalized anxiety disorder, depressive disorder, and avoidant personality disorder. Jozefyk told 

Dr. Camp that he “froze up” in stressful situations and had 

difficulty being around groups of people. He also reported 

short-term memory problems but performed well on 

Dr. Camp’s memory assessments. Another doctor, neuropsychologist William Hitch, also evaluated Jozefyk and found 

that he had normal memory function and only mild concentration impairments.

Jozefyk’s medical records were also reviewed by two 

agency psychologists: Edmund Musholt (in June 2013) and 

Kenneth Clark (in October 2013). Dr. Musholt concluded that 

Jozefyk had severe impairments of affective and anxiety disorders, causing moderate limitations in concentration, persistence, or pace. Although Jozefyk had reported memory difficulties, Dr. Musholt found no indication of cognitive or 

memory problems. But Dr. Musholt opined that, because of 
No. 18-1898 3

Jozefyk’s difficulties in social settings, he was moderately limited in his ability to work in coordination with or in proximity 

to others. Dr. Clark reviewed an updated medical record and

made the same findings as Dr. Musholt.

In November 2014, Jozefyk sought treatment from psychiatrist Dr. Guy Powers. Dr. Powers observed that Jozefyk had 

moderate functional difficulties but was otherwise alert and 

oriented. He diagnosed Jozefyk with depressive disorder and 

recommended medication and therapy.

Before his administrative hearing, Jozefyk was sent several 

written communications from the Social Security Administration, including a publication entitled “Your Right to Representation,” explaining his right to an attorney, organizations 

that could help him find an attorney, the fee structure, and the 

benefits of representation in disability proceedings. Also, in 

his request for a hearing, Jozefyk certified: “I do not have a 

representative. I understand that I have a right to be represented and that if I need representation, the Social Security 

office or hearing office can give me a list of legal referral and 

service organizations to assist me in locating a representative.”

In March 2015, Jozefyk appeared for his ALJ hearing without representation. The ALJ noted on the record that Jozefyk 

did not have an attorney and asked him if he was aware of his 

right to counsel. Jozefyk responded “yes” and stated that, because none of the lawyers that he had contacted would take 

his case, he decided to proceed by himself. The ALJ offered to 

continue the hearing to give Jozefyk more time to find an attorney, but Jozefyk again stated that he wanted to proceed.

Jozefyk testified that he previously worked as a security 

guard and a gas station cashier, but he was no longer looking 
4 No. 18-1898

for work because of his “really bad anxiety and depression.” 

Jozefyk explained that he has difficulty getting along with 

others because of his mental impairments. Jozefyk’s daily activities include spending time on the computer and watching 

television. He also occasionally helps his mother with housework.

A vocational expert also testified at the hearing. The ALJ 

asked the expert to consider a hypothetical person with 

Jozefyk’s age, education, work experience, and the following 

limitations: simple, routine, repetitive tasks requiring no 

more than occasional contact with supervisors and coworkers; no contact with the public; and an assigned work area at 

least ten to fifteen feet away from coworkers. The expert 

opined that this person could not perform Jozefyk’s past 

work, but could work as a floor waxer, kitchen helper, or machine operator.

The ALJ applied the standard five-step analysis, 

see 20 C.F.R. § 404.1520(a), and concluded that Jozefyk was 

not disabled. At Step 1, the ALJ determined that Jozefyk had 

not engaged in substantial gainful activity since his alleged 

onset date in December 2011. At Step 2, the ALJ evaluated 

Jozefyk’s physical and mental conditions, and concluded that 

he was suffering from severe impairments—lumbar strain, 

obesity, degenerative changes in the cervical spine, and affective and anxiety disorders—within the meaning of the Act 

and regulations. See 20 C.F.R. § 404.1520(c). But at Step 3, the 

ALJ determined that these impairments do not meet a listing 

for presumptive disability. The ALJ noted, however, that 

Jozefyk’s mental impairments cause “moderate” difficulties 

in social functioning and concentration, persistence, or pace.
No. 18-1898 5

In assessing Jozefyk’s RFC (Step 4), the ALJ found that 

Jozefyk could perform medium exertional work with the restrictions enumerated in the hypothetical question to the vocational expert. She afforded the opinions of the agency psychologists “great weight,” and found credible the opinion of 

Jozefyk’s treating physician, Dr. Powers, that Jozefyk has

moderate mental impairments while in social settings. But the 

evidence as a whole, in the ALJ’s assessment, did not support 

a finding that Jozefyk’s impairments were so severe as to preclude him from engaging in any work activity. The ALJ found 

that Jozefyk could not perform his past work as a cashier or 

security guard. But at Step 5, the ALJ relied on the vocational 

expert’s testimony to conclude that Jozefyk could perform a 

different job available in the national economy.

The Appeals Council denied Jozefyk’s request for review, 

and the district court upheld the ALJ’s decision.

II.ANALYSIS

Because the Appeals Council denied review, we evaluate 

the ALJ’s decision as the final word of the Commissioner. See 

Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir.), modified on reh’g 

(7th Cir. 2018). The ALJ’s decision will be upheld if supported 

by “substantial evidence,” which means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21 

(7th Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 

(1971)). 

Jozefyk first argues that the ALJ did not obtain a valid 

waiver of his right to counsel before allowing him to proceed 

pro se at the hearing. Although Jozefyk is correct that he had a 

statutory right to counsel, see 42 U.S.C. § 406, a claimant can 

waive that right once advised of “‘(1) the manner in which an 
6 No. 18-1898

attorney can aid in the proceedings, (2) the possibility of free 

counsel or a contingency arrangement, and (3) the limitation 

on attorney fees to 25 percent of past due benefits and required court approval of the fees.’” Skinner v. Astrue, 478 F.3d 

836, 841 (7th Cir. 2007) (quoting Binion v. Shalala, 13 F.3d 243, 

245 (7th Cir. 1994)). We mandate more disclosures than the 

regulations, which require the agency simply to notify the 

claimant in writing of his “options for obtaining attorneys,” 

and the “organizations which provide legal services free of 

charge.” 42 U.S.C. § 1383(d)(2)(D); 20 C.F.R. § 404.1706; see 

also Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 

2009) (discussing the Seventh Circuit’s standard for waiver).

Here, Jozefyk was adequately advised of his right to counsel. Months before the hearing, the agency mailed several 

written notices explaining his right to an attorney, counsel’s 

role in disability proceedings, and available fee arrangements. 

Specifically, the “Your Right to Representation” pamphlet attached to his hearing notices lists, in detail, the admonishments this court requires to establish waiver.

Jozefyk counters that there is no evidence to prove that he 

received the pamphlets and, even if he did receive them, the 

ALJ should have repeated the information at the hearing. But 

there are several problems with Jozefyk’s arguments. First, 

Jozefyk does not deny receiving the pamphlets; he merely 

speculates that he might not have (although he would know). 

Moreover, the evidence shows that he likely received the 

pamphlets and undoubtedly received other right-to-counsel 

notices. Jozefyk signed a form confirming that he received at 

least one notice, and most of them—including the one mailed 

to Jozefyk five days before he signed the confirmation form—
No. 18-1898 7

specifically list the pamphlet as an enclosure. And he appeared at the correct place and time for the hearing, suggesting that he received and read the SSA’s letter, to which the 

pamphlet was attached. He also certified in a separate document (the request for a hearing) that he understood his right 

to representation and that he was aware of referral organizations that could help him secure counsel.

Second, so long as it contains the required information, 

written notice adequately apprises a claimant of his right to 

counsel. Compare Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir. 

2003) (per curiam) (“[T]he numerous written notices Castillo 

received ... sufficiently informed her of her right to an attorney.”) with Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 

1991) (written notice and oral reminders were insufficient because they failed “to fully discuss the benefits of legal representation or the possibility of contingency arrangements.”). 

That’s especially true when the ALJ issues the claimant an oral 

reminder at the hearing. See Evangelista v. Sec. of Health and 

Human Serv., 826 F.2d 136, 142 (1st Cir. 1987). We decline to 

expand an already demanding waiver standard by requiring 

the ALJ to recite admonishments that the agency’s own regulations do not require. Moreover, the ALJ was not silent: she 

confirmed that Jozefyk was appearing without an attorney 

and that he was aware of his right to counsel.

In any event, Jozefyk has not shown that he was prejudiced by the lack of counsel because the ALJ adequately developed the record. “The ALJ’s duty to develop the record 

fully and fairly where the claimant proceeds without counsel 

is met if the ALJ probes the claimant for possible disabilities 

and uncovers all of the relevant evidence.” Binion, 13 F.3d 

at 245. To prove prejudice, the claimant must point to specific, 
8 No. 18-1898

relevant facts that the ALJ did not consider. Nelms v. Astrue, 

553 F.3d 1093, 1098 (7th Cir. 2009). Here, Jozefyk argues that 

the ALJ did not obtain medical records of Jozefyk’s bipolar 

diagnosis and did not ask certain questions about his mental 

health. But the ALJ asked Jozefyk whether he had any problems gathering evidence or if he wished to submit other medical documents. Jozefyk listed three missing medical exhibits, 

so the ALJ gave Jozefyk extra time to file them and waited until the documents were submitted to reach a final decision. 

Moreover, the ALJ heard testimony about Jozefyk’s mental 

impairments and their impact on his daily functioning; it is 

unclear how more questions on the same issues would have 

changed the outcome. Thus, Jozefyk’s waiver of counsel does 

not warrant a remand.

Next, Jozefyk argues that the ALJ’s RFC determination did 

not adequately account for his moderate limitations in concentration, persistence, or pace.Specifically, he asserts that the 

ALJ omitted accommodations for Jozefyk’s less severe symptoms, such as fatigue, loss of energy, and difficulty with attention and concentration. And the limitations that the ALJ did 

include, he continues, were not logically connected to record 

evidence. See Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 

2004).

We see no error in the ALJ’s assessment; she considered all 

limitations supported by record evidence. See Yurt v. Colvin, 

758 F.3d 850, 857 (7th Cir. 2014). Jozefyk points to self-reported symptoms that doctors, including his own treating 

physician, could not confirm. For instance, Jozefyk insists that 

he has memory and concentration difficulties, but doctors observed that Jozefyk appeared “alert and orientated” and performed well on memory tests. Even so, the ALJ credited 
No. 18-1898 9

Jozefyk’s testimony and included accommodations for a 

“mild mental functional impairment” in the RFC assessment. 

She did not, as Jozefyk contends, discount the less severe impairments entirely. See Denton v. Astrue, 596 F.3d 419, 423–24 

(7th Cir. 2010). The ALJ also tied the record evidence to the 

limitations included in the RFC finding, tailoring Jozefyk’s 

workplace setting to accommodate his social anxiety. 

See Moore, 743 F.3d at 1121 (requiring an ALJ to build a “logical bridge” between limitations and RFC finding); Terry v. 

Astrue, 580 F.3d 471, 475 (7th Cir. 2009).

Jozefyk counters that the ALJ failed to impose restrictions 

to account for his moderate limitation in concentration, persistence, or pace. He emphasizes that this court has said that 

generically confining claimants to “routine tasks and limited 

interactions with others” might not adequately capture a 

claimant’s limitations. See Varga v. Colvin, 794 F.3d 809, 814 

(7th Cir. 2015) (quoting Yurt, 758 F.3d at 858–59)). But 

Jozefyk’s case is distinguishable. Although Jozefyk states that 

he suffers from psychological limitations while alone, according to the medical evidence, his impairments surface only 

when he is with other people or in a crowd. Indeed, one 

agency doctor opined that Jozefyk’s memory and adaptive 

functioning were intact, but that he might have moderate difficulties with both in social settings. We have upheld RFC determinations similar to the one here when they adequately account for the claimant’s demonstrated psychological symptoms. See Johansen v. Barnhart, 314 F.3d 283, 288–89 (7th Cir. 

2002); see also O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 

(7th Cir. 2010) (summarizing similar cases).

Finally, even if the ALJ’s RFC assessment were flawed, any 

error was harmless. See McKinzey v. Astrue, 641 F.3d 884, 892 
10 No. 18-1898

(7th Cir. 2011). It is unclear what kinds of work restrictions 

might address Jozefyk’s limitations in concentration, persistence, or pace because he hypothesizes none. The ALJ found 

that Jozefyk’s memory and concentration were slightly impaired, but Jozefyk cites no evidence that those deficits keep 

him from performing simple, routine, and repetitive tasks. 

See Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009) (claimant 

with deficiencies in concentration, persistence, or pace can 

perform semiskilled work); Sims v. Barnhart, 309 F.3d 424, 431 

(7th Cir. 2002) (claimant with moderate limitations in concentration, persistence, or pace can perform “simple and repetitive light work”). Because Jozefyk did not testify about restrictions in his capabilities related to concentration, persistence, or pace deficits, and the medical record does not support any, there are no evidence-based restrictions that the ALJ 

could include in a revised RFC finding on remand. 

III.CONCLUSION

For the foregoing reasons, the judgment is AFFIRMED.1

 

1 The Commissioner filed a supplemental brief in this case, purportedly triggered by the Supreme Court’s recent decision in Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019). The agency argues that our standard for 

articulating functional restrictions caused by moderate limitations in concentration, persistence, or pace—a topic that a spate of decisions has addressed in recent months—is too demanding and even violates federal 

regulations. See, e.g., DeCamp v. Berryhill, 916 F.3d 671 (7th Cir. 2019); Winsted v. Berryhill, 915 F.3d 466 (7th Cir. 2019). We granted the Commissioner 

leave to file the brief before receiving Jozefyk’s opposition to the motion, 

so Jozefyk’s response was deemed a motion to reconsider. But we see no 

need to reconsider our decision. The Commissioner’s supplemental brief 

had little relevance to this case and no bearing on the outcome. We therefore DENY Jozefyk’s motion to reconsider as moot.