Debara DeCamp v. Nancy Berryhill ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2105
DEBARA DECAMP,
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. 15-CV-1261 — William C. Griesbach, Chief Judge.
____________________
ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 26, 2019
____________________
Before WOOD, Chief Judge, KANNE, and ST. EVE, Circuit
Judges.
PER CURIAM. Debara DeCamp, a 55-year old woman, chal-
lenges the denial of her applications for Disability Insurance
Benefits and Supplemental Security Income, in which she
claimed disability based on a benign brain tumor, neck and
back issues, and bipolar disorder. DeCamp argues that the ad-
ministrative law judge erred by failing to (1) evaluate
2 No. 18-2105
properly DeCamp’s limits with concentration, persistence, or
pace, (2) support her decision to limit DeCamp to 10 percent
off-task time for purposes of assessing residual functional ca-
pacity (“RFC”), and (3) support her adverse credibility deter-
mination. We agree that the ALJ did not properly address De-
Camp’s limitations in concentration, persistence, or pace, and
on that basis we remand.
I. BACKGROUND
DeCamp has a history of depression, drug overdoses, and
suicidal thoughts. She overdosed on medication three times
in October 2007. She admitted to doctors that she had at-
tempted suicide and had been cutting her legs. Her treatment
notes also reflect a history of alcohol abuse.
In 2010 DeCamp complained of headaches, and an MRI
revealed a tumor in her pineal gland, which secretes hor-
mones that regulate sleep cycles. A neurosurgeon noted that
the mass was benign and directed DeCamp to follow up about
her migraines with her primary-care doctor, Dr. Jane Walloch,
and repeat the MRI in six months. DeCamp did so, and Dr.
Walloch—noting an improvement in DeCamp’s headaches—
increased her dosage for Cymbalta (an antidepressant). De-
Camp also told Dr. Walloch of her plans to travel, and the doc-
tor told DeCamp to follow up upon her return.
DeCamp returned to Dr. Walloch in 2011 and reported
feeling depressed. She no longer had health insurance, De-
Camp said, so Cymbalta was too expensive. DeCamp told Dr.
Walloch that her headaches had returned and that she was
“cutting again” in connection with her depression. Dr. Wal-
loch changed DeCamp’s medication and referred DeCamp to
psychiatric counseling.
No. 18-2105 3
In August 2011 Dr. Esther Lefevre, a psychologist, re-
viewed DeCamp’s medical records and completed two ques-
tionnaires—a Psychiatric Review Technique (“PRT”) Form
and a Mental Residual Functional Capacity Assessment
(“MRFC”). On the PRT form, Dr. Lefevre checked a box not-
ing that DeCamp had “moderate” limitations in maintaining
concentration, persistence, or pace. The doctor also desig-
nated on the MRFC form that DeCamp was “moderately lim-
ited” in two more ways—her ability (1) “to perform activities
within a schedule, maintain regular attendance, and be punc-
tual within customary tolerances” and (2) “to complete a nor-
mal workday and workweek without interruptions from psy-
chologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest pe-
riods.” In a supplemental narrative explanation, Dr. Lefevre
elaborated that DeCamp “may have some difficulty with con-
centration and persistence at times but she is able to meet the
demands of basic unskilled work.”
DeCamp told Dr. Walloch in November 2011 that her
headaches were worse. She added that she was not harming
herself and had no suicidal thoughts. Dr. Walloch changed
DeCamp’s medication for her migraines and encouraged her
to follow up with her primary care doctor for an MRI of her
head.
Agency psychologist Michael Goldstein, Ph.D., examined
DeCamp in March 2012 and prepared a report that described
mental limitations similar to those found by Dr. Lefevre. Dr.
Goldstein noted that DeCamp had “mild” limitations in un-
derstanding, remembering, and carrying out simple instruc-
tions, and “moderate” limitations in maintaining concentra-
tion, attention, and work pace, and in adapting to change.
4 No. 18-2105
And DeCamp had “extreme” limitations in withstanding rou-
tine work stresses and responding appropriately to co-work-
ers and supervisors.
Dr. Deborah Pape, another state-agency doctor, opined
that DeCamp was more limited than Dr. Lefevre found. On a
MRFC form, Dr. Pape specified that DeCamp was “markedly”
limited in her abilities “to understand and remember detailed
instructions” and “to carry out detailed instructions.” She also
was “moderately” limited in her ability to sustain concentra-
tion and persistence. Dr. Pape made “no severe findings of
diff[iculty] getting along [with] others, supervisors or
coworkers,” but she added that DeCamp was “capable of
withstanding the demands of unskilled as defined by SSA”
with moderate limitations.
At a hearing in December 2012 before an ALJ, DeCamp de-
scribed how pain in her back, leg, and hands limited her daily
activities. Her pain made it difficult to stand, walk, sleep, or
grip things. She added that she cared for a dog and a bird and
was able to make simple meals, like soup or microwaved
meals. And she said that she was able to walk to her mailbox
and back.
At another hearing in 2015,1 DeCamp testified that she
had migraines four times a week that lasted all day. On a typ-
ical day, she would watch television, read, use social media,
and lie down. Her medications also made her tired, so she
preferred to sleep when she felt “super depressed.” But her
drug and alcohol problems were under control, she added.
1 The Commissioner had agreed to a new hearing after the ALJ issued
an unfavorable decision without explaining how Dr. Pape’s opinion was
used in crafting DeCamp’s mental RFC.
No. 18-2105 5
The ALJ then questioned the vocational expert about jobs
a hypothetical claimant with similar limitations to DeCamp
could perform. The ALJ asked the vocational expert whether
jobs existed for a hypothetical claimant who, as relevant here,
was:
limited to unskilled work involving [Specific Voca-
tional Preparation (“SVP”)]: 2 or less; no fast paced
production line or tandem tasks; few if any changes
in the work setting, meaning that the work place and
tasks change no more than occasionally and only
one or two times per month at most; no more than
occasional interaction with coworkers, supervisors,
and the public; she may be off task or off pace up to
10 percent of the work day in addition to regular
breaks.
The vocational expert, who testified that she had reviewed
an unspecified “E file”2 in preparation for the hearing, re-
sponded that jobs existed for such a person. But if the hypo-
thetical claimant might “be off pace or off task more than 15
percent of the work day” or “need additional unscheduled
breaks,” then no competitive work would be available.
The ALJ applied the required five-step analysis for as-
sessing disability, see 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4), and concluded that DeCamp was not disabled.
The ALJ determined that DeCamp had not engaged in sub-
stantial gainful employment since her alleged onset date in
February 2009 (step one); that her conditions (“history of
2 We asked the parties at oral argument to clarify what was in De-
Camp’s “E file.” They agreed that the “E file” is a subset of the adminis-
trative record, namely, those files designated with the letter “E” at the end
of the exhibit number.
6 No. 18-2105
cervical discectomy in 2003; right carpal tunnel release in
2004; L5-S1 lumbar fusion in 2010; chronic back pain;
longstanding neoplasm of the pineal gland; headaches; his-
tory of substance abuse; and affective and anxiety disorders”)
were severe impairments (step two); that these conditions did
not equal a listed impairment (step three); that she had the
residual functional capacity to perform light work, except that
she was limited to “unskilled work … with no fast-paced pro-
duction line or tandem tasks,” and she could “occasionally in-
teract with coworkers, supervisors, and the public,” and she
“may be off task up to 10 percent of the workday, in addition
to normal breaks” (step four); and that she could work as a
machine tender, sorter, or office helper (step five).
In determining that DeCamp’s conditions did not equal a
listed impairment at step three, the ALJ applied a so-called
“special technique” to evaluate mental impairments.
See 20 C.F.R. §§ 404.1520a, 416.920a. That method requires an
ALJ to consider “pertinent symptoms, signs, and laboratory
findings” to determine whether a claimant suffers from a
medically determinable mental impairment.
Id. §§ 404.1520a(b), 416.920a(b). Although the ALJ determined
that DeCamp did not have a listed impairment, the ALJ con-
cluded that DeCamp had “moderate” restrictions in social
functioning and concentration, persistence, or pace, and
“mild” limitations in her activities of daily living.
In determining DeCamp’s RFC, the ALJ gave some weight
to the mental limitations identified by Drs. Lefevre, Pape, and
Goldstein. Those doctors’ opinions supported “moderate” re-
strictions in concentration, persistence, or pace, and “mild”
restrictions in understanding, remembering, and carrying out
simple instructions. The ALJ therefore limited DeCamp to
No. 18-2105 7
“unskilled work with an SVP of 2 or less, with no fast-paced
production line or tandem tasks, at a job that allows her to be
off task up to 10% of the workday.” The ALJ also referred to
the opinions of Dr. Lefevre and Dr. Pape, who regarded De-
Camp’s limitations not to be disabling.
The ALJ found that DeCamp’s account of her symptoms
was “not entirely credible” for four reasons. First, DeCamp
had decided to take a vacation after her alleged onset date.
The ALJ recognized that “a vacation and a disability are not
necessarily mutually exclusive,” but DeCamp’s willingness to
travel suggested that she had overstated her symptoms. Next,
DeCamp regularly walked her dog, an activity that conflicted
with her reports of disabling leg pain. Third, DeCamp’s ap-
pearance at her mental-status evaluations and hearings, as
documented by the examining doctors, suggested that she
was not as disabled as she alleged. Last, DeCamp’s medical
records did not reflect that she had complained of pain or
other disabling symptoms from her conditions.
DeCamp sought judicial review, but a district judge up-
held the ALJ’s decision. The judge explained that the ALJ’s
credibility assessment was sound because “the ALJ thor-
oughly discussed the substantial evidence that supports her
decision.” Moreover, the ALJ properly oriented the vocational
expert through hypothetical questions that adopted the doc-
tors’ narrative explanations of DeCamp’s mental limitations.
And DeCamp’s challenge to the ALJ’s determination that De-
Camp would be off-task up to 10 percent of the work day
failed, the judge added, because her “argument assumes a
precision that this kind of limitation does not allow.” Rather,
the ALJ’s finding permissibly was “based on her judgment as
8 No. 18-2105
to the severity of Plaintiff’s impairments, not a mathematical
measurement.”
II. ANALYSIS
DeCamp first argues that the ALJ’s RFC determination
and hypothetical question did not include all her limitations
in concentration, persistence, and pace, and so the vocational
expert could not evaluate whether jobs existed for a claimant
with her limitations. Rather, DeCamp contends, the ALJ in-
cluded limitations in the hypothetical question that did not
accurately describe her abilities. The ALJ must explicitly ac-
count for all a claimant’s limitations in her hypothetical, in-
cluding limitations in concentration, persistence, or pace, un-
less the vocational expert has independently reviewed the
medical record. See Moreno v. Berryhill, 882 F.3d 722, 730 (7th
Cir. 2018); Lanigan v. Berryhill, 865 F.3d 558, 563, 565 (7th Cir.
2017).
We agree that the ALJ erred by not including DeCamp’s
“moderate” limitations in concentration, persistence, and
pace in the hypothetical question to the vocational expert. The
ALJ’s hypothetical to the vocational expert omitted any men-
tion of DeCamp’s moderate limitations in the four areas iden-
tified by Dr. Pape (whose opinion the ALJ cited to support her
finding): maintaining attention and concentration for ex-
tended periods; performing activities within a schedule,
maintaining regular attendance, and being punctual within
customary tolerances; working in coordination or proximity
to others without being distracted; and completing a normal
workday and workweek without interruptions from psycho-
logically based symptoms and performing at a consistent
pace. The ALJ opted instead to limit DeCamp to “unskilled
work” with no “fast-paced production line or tandem tasks.”
No. 18-2105 9
We have previously rejected similar formulations of a claim-
ant’s limitations because there is no basis to suggest that elim-
inating jobs with strict production quotas or a fast pace may
serve as a proxy for including a moderate limitation on con-
centration, persistence, and pace. See Moreno, 882 F.3d at 730;
O’Connor-Spinner v. Colvin, 832 F.3d 690, 698 (7th Cir. 2016).
The ALJ’s analysis is similarly flawed with respect to De-
Camp’s mild limitations in understanding, remembering, and
carrying out simple instructions and her moderate limitations
in concentration, persistence, and pace as found by Dr. Gold-
stein. An ALJ need not use “specific terminology,” but we
have “repeatedly rejected the notion that a hypothetical …
confining the claimant to simple, routine tasks and limited in-
teractions 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
also Winsted v. Berryhill, No. 18-2228, 2019 WL 494052, at *4
(7th Cir. Feb. 8, 2019); Varga v. Colvin, 794 F.3d 809, 814 (7th
Cir. 2015). Moreover, the vocational expert did not review De-
Camp’s medical records, which could have excused the ALJ
from stating all DeCamp’s limitations. See Varga, 794 F.3d at
814; Yurt, 758 F.3d at 857.
The Commissioner contends that the ALJ adequately ac-
counted for DeCamp’s limitations in her RFC determination
and in the hypothetical question to the vocational expert by
relying on part of the narrative explanations (the part of the
PRT and MRFC forms where the doctors provide a written
explanation of their findings, rather than the check-box sec-
tions) offered by Dr. Pape and Dr. Goldstein. True, both doc-
tors offered narrative explanations in addition to the check-
boxes on the assessment forms, and an ALJ may rely on those
descriptions. See Varga, 794 F.3d at 816. But even if an ALJ may
10 No. 18-2105
rely on a narrative explanation, the ALJ still must adequately
account for limitations identified elsewhere in the record, in-
cluding specific questions raised in check-box sections of
standardized forms such as the PRT and MRFC forms. See
Yurt, 758 F.3d at 859. In Yurt, a narrative explanation trans-
lated the limitations identified by doctors in the check-box
sections of the forms. See id. at 854–55. We still reversed and
remanded because the ALJ did not adequately account for the
limitations identified by the doctor in the check-box section of
the forms. See id. at 859. Here, the ALJ similarly focused her
analysis on the doctors’ bottom-line conclusion that DeCamp
was not precluded from working without giving the voca-
tional expert any basis to evaluate all DeCamp’s impairments,
including those in concentration, persistence, and pace.
III. CONCLUSION
Because we determine that the ALJ did not properly eval-
uate DeCamp’s limitations in concentration, persistence, and
pace, we do not address DeCamp’s other arguments. Accord-
ingly, we VACATE the judgment and remand this case to the
district court with directions to remand the case to the Social
Security Administration.