December 12, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:15-cv-11168 -
Sidney I. Schenkier, Magistrate Judge.
Bauer, Ripple, and Sykes, Circuit Judges.
Moreno appeals the order of the district court upholding the
Social Security Administration's denial of his
applications for Supplemental Security Income and Disability
Insurance Benefits. Mr. Moreno contends that, among other
shortcomings in the Administrative Law Judge's
("ALJ") determination, he improperly relied on an
outdated mental-health assessment and failed to incorporate
all of Mr. Moreno's limitations when posing the
hypothetical to the vocational expert. We agree that the
record contains new and significant evidence that could have
affected Mr. Moreno's mental-health assessment. We also
agree that the ALJ's hypothetical to the vocational
expert failed to include Mr. Moreno's limitations with
respect to concentration, persistence, and pace. Accordingly,
we remand the matter to the agency for further proceedings.
Mr. Moreno's Condition
Moreno's misfortunes began in February 2006 when he fell
off scaffolding and landed on his back while taping drywall.
He sought treatment from an orthopedist, who found a soft
tissue injury but no signs of fracture. Later testing showed
improvements in Mr. Moreno's condition, but he reported
that he still felt significant pain. A follow-up diagnostic
test revealed acute lumbar radiculopathy-lower back pain
caused by compression, inflammation and/or injury to a spinal
nerve root. In addition to this condition, Mr. Moreno also is
diabetic, has high blood pressure, and is obese.
in April, Mr. Moreno sought treatment for his chronic pain
from clinical psychologist Dr. Enrique Gonzalez. Dr. Gonzalez
saw Mr. Moreno "on an almost weekly basis through 2009
for cognitive behavioral therapy" These visits
decreased in frequency to monthly between 2010 and the first
half of 2011; however, for the remainder of 2011 through at
least June of 2013, Mr. Moreno saw Dr. Gonzalez on a weekly
treatment notes, Dr. Gonzalez reported that Mr. Moreno
manifested, among other symptoms, a depressed mood,
irritability, memory difficulties, and an inability to
concentrate. Critical to our analysis, Dr. Gonzalez
documented an ongoing inability to sleep, including times
when Mr. Moreno would go days without sleep. Dr. Gonzalez also
addressed Mr. Moreno's difficulties interacting with the
public and with his family, specifically outbursts of anger
precipitated by feelings that others were taking advantage of
Dr. Gonzalez observed fluctuations in Mr. Moreno's mood
and behavior over time, including some periods of
improvement; for instance, Dr. Gonzalez reported improved
mood when Mr. Moreno had scheduled activities with his
daughter and family
March 2008 through November 2013, Mr. Moreno also saw a Dr.
Walter Pedemonte on a monthly basis for psychiatric
medication management. Dr. Pedemonte observed Mr. Moreno
suffered from the following symptoms in March 2008:
"depressed mood, anxious affect, poor immediate and
recent memory, fair remote memory, poor attention, [and] poor
concentration." He diagnosed Mr. Moreno with major
depressive disorder and, over the years, prescribed Mr.
Moreno several medications, and combinations of medications,
to address his condition.
The Administrative Proceedings
March 2007, Mr. Moreno filed his applications for
Supplemental Security Income and Disability Insurance
Benefits. His claims were denied on initial application and
upon reconsideration. A hearing was held before an ALJ in
December 2009; the ALJ issued a decision denying relief in
March 2010. The Appeals Council denied review, and Mr. Moreno
appealed to the United States District Court for the Northern
District of Illinois.
district court, the parties filed an agreed motion to reverse
and remand. The motion requested that, on remand, the matter
"be assigned to a different ALJ, who w[ould] conduct a
new hearing, and reassess inter alia Plaintiff's
mental impairment(s) and the treating physician
remand, a different ALJ held a supplemental hearing. At the
February 2014 hearing, Mr. Moreno testified regarding his
mental health. He described a significant number of
psychological concerns, including difficulty focusing,
remembering, and interacting with others. He recounted that
his wife administers his medication and keeps track of his
physicians' appointments because he struggles to remember
things. He also reported that he tried to take English
classes but had trouble concentrating. Mr. Moreno also
testified, as he did in the original hearing, that people
"bother " him,  so he avoided going to crowded
church services and using public transportation.
addition to the hearing testimony and the notes of Drs.
Gonzalez and Pedemonte, the second ALJ also looked at Mr.
Moreno's mental-health records, examinations, and
assessments that predated the hearing before the first ALJ.
Among these were the diagnosis and notes of Dr. Herman
Langner, who examined Mr. Moreno in 2007 and diagnosed him
with depression. The ALJ also considered the review of Mr.
Moreno's mental-health records conducted by psychologist
Margaret Wharton in 2007. In her assessment of Mr.
Moreno's residual functional capacity, Dr. Wharton
observed that Mr. Moreno manifested a "[disturbance of
mood" evidenced by "[d]ecreased energy, "
"[f]eelings of guilt or worthlessness, " and
"[difficulty concentrating or
thinking."Under functional limitations, Dr. Wharton
noted that Mr. Moreno was only mildly limited in activities
of daily life and in social functioning, but he was
moderately limited in maintaining concentration, persistence,
and pace. Her summary conclusions described Mr.
Moreno as not significantly limited in "[t]he ability to
carry out very short and simple instructions";
"[t]he ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances"; "[t]he ability to work in coordination
with or proximity to others without being distracted by
them"; "[t]he ability to make simple work-related
decisions"; and "[t]he ability to interact
appropriately with the general public."
then used this information to pose a hypothetical question to
a vocational expert regarding Mr. Moreno's
em-ployability. Specifically at the second hearing, the ALJ
described a hypothetical individual with Mr. Moreno's
physical limitations. In addition to physical limitations,
the ALJ included in his question to the vocational expert
that the hypothetical "individual can understand,
remember, and carry out simple work instructions ... and
exercise simple work place judgments. And further, the
individual would be limited to routine work ... [with] no
more than occasional changes in the work
setting." Finally, the ALJ required that the
individual could have "no more than occasional
interaction with the public." Given these restrictions,
the vocational expert opined that there were still a number
of jobs that Mr. Moreno could perform, including that of an
assembler, an inspector, a checker, and a hand packer.
the hearing, the ALJ issued a written opinion in which he
reviewed the evidence, applied the standard five-step
analysis, see 20 C.F.R. § 404.1520(a), and
concluded that Mr. Moreno was not disabled. At step one, the
ALJ determined that Mr. Moreno had not engaged in substantial
gainful activity since his alleged onset date in February
2006. At step two, the ALJ evaluated Mr. Moreno's
physical and mental conditions, and concluded that he was
suffering from severe impairments-lumbar disc disease,
myofascial pain syndrome, left knee pain, obesity, and
depression-within the meaning of the Act and regulations, 20
C.F.R. §§ 404.1520(c), 416.920(c). But at step
three the ALJ determined that these impairments, individually
or in combination, do not meet a listing for presumptive
disability. Applying the "special technique, " 20
C.F.R. §§ 404.1520a, 416.920a-the method that
considers "pertinent symptoms, signs, and laboratory
findings" to determine whether the claimant suffers from
a medically determinable mental impairment-the ALJ concluded
that Mr. Moreno's mental impairments do not cause two or
more "marked limitations" or one such limitation
coupled with repeated episodes of decompensation. Therefore,
Mr. Moreno did not satisfy the paragraph B criteria of
listings 12.04 and 12.06. He found, however, that Mr.
Moreno's mental impairments do cause "moderate"
restrictions in social functioning and concentration,
persistence, or pace, as well as "mild"
restrictions in his activities of daily living.
four the ALJ found that Mr. Moreno could not perform his past
work as a drywall taper, but at step five he concluded that
Mr. Moreno could "perform light work" with some
restrictions. In assessing Mr. Moreno's residual
functional capacity, the ALJ afforded the opinion of Dr.
Wharton great weight, explaining that Dr. Wharton's
analysis was "consistent with the longitudinal evidence
of record." The ALJ also reviewed the notes of Mr.
Moreno's treating psychologist, Dr. Gonzalez, who
documented fluctuating symptoms of depression, suicidal
ideations, low motivation, and irritability. But the
evidence as a whole, in the ALJ's view, did not support a
finding that Mr. Moreno's depression precluded him from
engaging in work activity. The ALJ placed particular emphasis
on portions of Dr. Gonzalez's treatment notes that showed
improvements in Mr. Moreno's mental health during periods
of increased activity.
Moreno appealed to the Appeals Council, which declined
District Court Proceedings
Moreno then sought review in district court, which affirmed
the agency's decision. The court first rejected Mr.
Moreno's argument that the ALJ's assessment of
residual functional capacity was "flawed because ... it
did not account for the recommendation of Dr. Wharton that
claimant is only capable of performing one-two step
jobs." The court concluded that the record as a
whole adequately supported the ALJ's determination that
Mr. Moreno could carry out "simple work
instructions." The district court also was unpersuaded
by Mr. Moreno's argument that the ALJ's residual
functional capacity assessment did not account for Mr.
Moreno's limitations in concentration, persistence, and
pace: "the ALJ's hypothetical to the [vocational
expert] adequately addressed Mr. Moreno's specific
deficiencies" even if the words concentration,
persistence, and pace were not used. The district court
further determined that the ALJ was not required to seek an
updated mental-health evaluation because the treatment notes
that postdated Dr. Wharton's assessment did not show a
significant change in Mr. Moreno's condition that would
have caused ...