United States District Court, N.D. Illinois, Western Division
Jason L. Permenter Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER
D. Johnston United States Magistrate Judge
who is now 45 years old, worked in the auto repair field
until December 2004 when he stopped working because of leg
and back pain. In 2007, he filed the first of several
disability applications. Over the next nine years, his quest
for disability benefits proceeded through a lengthy
administrative process. Along the way, there have been four
administrative hearings, three administrative decisions, and
one appeal to this Court. However, in the fall of 2016,
plaintiff finally achieved some degree of success when the
administrative law judge (“ALJ”) ruled that
plaintiff was disabled as of November 9, 2015. Plaintiff has
filed this appeal because he believes that he should have
been found disabled five and a half years earlier, on March
31, 2010, which was his date last insured.
raises one argument for remand. He asserts that the ALJ
failed to adequately account for moderate problems in
concentration, persistence, and pace, caused by
plaintiff's depression, when determining plaintiff's
residual functional capacity (“RFC”) and when
posing hypothetical questions to the vocational expert. This
argument is raised fairly often in disability cases, and is
undoubtedly appealing to plaintiff's counsel because it
rests on a narrow slice of the record and is backed by a
well-worn line of Seventh Circuit cases. However, as
explained below, the simplicity and narrowness of this
argument belies linguistic and conceptual pitfalls lurking
underneath the surface.
7, 2013, an administrative hearing was held at which a
medical expert (Gilberto Munoz) testified about
plaintiff's back problems. Plaintiff also testified about
his back problems, but also briefly discussed his obesity (he
has weighed up to 410 pounds) and his depression.
testified that his general physician, Dr. Woodman, first
prescribed antidepressant medication in July 2009. R. 66.
Plaintiff testified that his depression affected his
self-esteem and made it hard to concentrate. When asked to
give an example, plaintiff stated as follows:
I love and am passionate for cars, and I have, like, tons of
magazine subscriptions. But to get through an article,
it's, like, impossible. I mean, I'll start reading
it, and it's just, like-I can't focus on it anymore.
It almost gets to the point where it's, like-it's
blurry because I just can't focus or think and read what
I'm trying to do.
31, 2013, the ALJ issued a written decision finding plaintiff
not disabled. The decision focused on plaintiff's back
problems. However, at Step Three, the ALJ explained as
follows why plaintiff's depression caused moderate
limitations in concentration, persistence or pace:
Although the claimant alleged having difficulty concentrating
and memory problems because of his depression, he spends a
significant amount of time of his day watching television,
playing video games or using his computer (Ex. 3E/2). In
addition, his doctors reported that the claimant understood
their recommendations about treatment and his medical
R. 82. In the RFC formulation, the ALJ included a limitation
that plaintiff could “understand, remember and carry
out simple job instructions.” R. 82. The ALJ noted that
the State agency psychologist found there was
“insufficient evidence” to even render an opinion
about any alleged mental impairment. R. 89. Despite this
fact, the ALJ still included the above limitation because the
State agency psychologist “did not have access to
additional evidence or listen to the claimant's
exhausting his administrative remedies, plaintiff filed an
appeal to this Court raising three arguments in his opening
brief. (No. 14-50241.) The first one was essentially
the same one he now raises-that the ALJ “failed to 
incorporat[e] Plaintiff's mental limitations in the
hypothetical to the vocational expert.” Dkt #10 at 6.
Before any further briefing ensued, the parties agreed to a
remand. This Court remanded without ruling on the merits.
Dkt. #19 at 1.
September 21, 2015, after receiving this Court's remand
order, the Appeals Council issued its own remand order, which
instructed the ALJ to “clearly identify the
claimant's limitations in concentration, persistence, or
pace with reference to the evidence of record and explain how
the claimant's mental residual functional capacity
accommodates for any concentration, persistence, or pace
limitations with reference to the evidence of record.”
R. 650. The order also stated that any hypothetical questions
to the vocational expert should include
“specific/capacity limitations.” Id. The
order also included the observation that the ALJ's 2013
decision failed to “expressly explain” how
plaintiff's concentration problems were accounted for. R.
held two new hearings. The first hearing, held on March 11,
2016, focused on the “mental health issues”
because, as plaintiff's counsel noted, this is the
subject they were “obligated” to address
according to the remand order. R. 546. Counsel further noted
that they were required to “delve into” the issue
of how plaintiff's moderate limitations were accommodated
by the RFC. R. 547. Next, the medical expert, psychologist
Larry Kravitz, testified. He first summarized the evidence,
noting that a consultative psychological evaluation in
January 2015 showed that plaintiff's mental status was
“fairly intact with nothing of significance.” R.
548; Ex. 4F. It was also noted that plaintiff never
sought any counseling at any time for his
depression. R. 552. Dr. Kravitz then gave the
So, Judge, there's not very much in the medical record.
We have the consultative evaluation, but based on the fact
that Claimant's been taking depressive medication for six
years, based on his report that he continues to feel
depressed most of the time and that he feels-at a minimum, he
feels it exacerbates the limitations caused by the pain, I
would, in terms of Part B limitations, I would give
Claimant-I give him a mild restriction and maybe some mild
restrictions in social functioning.
But I would agree that he's got a moderate restriction in
concentration, pace and persistence. And in terms of a
residual functional capacity, he's mentally capable of
understanding, remembering, carry[ing] out simple and
detailed instructions. But I think persistence over extended
periods of time is going to be limited. So I would overall
restrict him to simple, repetitive tasks.
R. 555. This testimony, particularly the second paragraph, is
a key piece of evidence relevant to plaintiff's current
then asked plaintiff about his back problems. Plaintiff
testified that he just had surgery to alleviate the constant
pain. The ALJ, after agreeing that plaintiff's back
problems had worsened, suggested that plaintiff's case
would be better “if he was seeking an onset date when
he applied for supplemental security income on October 16th
of 2014 rather than back on March 31st of 2010.” R.
559. Plaintiff's counsel then reminded the ALJ of the
Appeals Council's remand ...