In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2894
JOSHUA RAY LANIGAN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 15-cv-474-bbc — Barbara B. Crabb, Judge.
____________________
ARGUED APRIL 26, 2017 — DECIDED JULY 26, 2017 —
OPINION ISSUED JULY 31, 2017 *
____________________
Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit
Judges.
SYKES, Circuit Judge. Joshua Lanigan injured his back at
his job in 2009. That same year he hurt his neck in a car
*The court initially resolved this appeal by nonprecedential order. The
order is being reissued as an opinion.
2 No. 16-2894
accident, and in 2011 he was diagnosed with diabetes. Since
then his medical impairments have been complicated by
mental illness. Lanigan applied for Supplemental Security
Income and Disability Insurance Benefits in March 2012
when he was 38 years old. An Administrative Law Judge
(“ALJ”) found his physical and mental impairments to be
severe but not disabling and denied benefits. The Appeals
Council denied review, and the district court upheld the
ALJ’s decision. See 42 U.S.C. § 405(g). We conclude that the
case must be returned to the agency for further proceedings
because the ALJ misinformed a vocational expert about
Lanigan’s residual functional capacity, thus undermining
the expert’s testimony that Lanigan could engage in compet-
itive employment.
I. Background
Lanigan asserts that he became disabled in May 2009 af-
ter injuring his lower back while working as a general
laborer. He received worker’s compensation for that injury
and tried various forms of physical therapy, but none
proved to be effective. Eventually he was diagnosed with
degenerative disc disease in his lower back. In 2009 he also
injured his neck in a car crash. Then in December 2011 he
was diagnosed with Type 2 diabetes. At one time Lanigan
was a body builder, but since 2009 he has been physically
inactive and bounced between part-time or seasonal jobs and
periods of unemployment. The Commissioner of Social
Security concedes that Lanigan’s physical impairments, by
themselves, would limit him to light work, so our focus is on
his mental illness and its effect on his ability to engage in
competitive employment.
No. 16-2894 3
After Lanigan learned of his diabetes diagnosis, he fell
into a state of depression, anxiety, and suicidal preoccupa-
tion. He explained to a psychiatrist that he has an “ingrained
fear of diabetes” because as a child he watched his grandfa-
ther struggle with and eventually die from the disease. In
January 2012, a month after receiving the diagnosis, Lanigan
reported to his physician that he had been in a “very low
mood,” rarely leaving his apartment, and “sitting for hours
at a time with a loaded pistol on his lap.” The following year
after a psychiatric evaluation, Lanigan’s treating psychiatrist
documented a history of alcohol abuse, bipolar affective
disorder, major depression, attention deficit/hyperactivity
disorder, oppositional defiant disorder, and kleptomania.
The psychiatrist also noted that Lanigan had complained of
intermittent episodes of visual hallucinations in which he
saw animals or people in his periphery and five- to ten-
minute episodes of palpitations, sweating, and tremors
when in public places or in the midst of family members.
Lanigan attributes the episodes to his belief that he is being
stigmatized because he is mentally ill.
In addition to the stress of being diagnosed with diabe-
tes, Lanigan’s inability to maintain full-time work has also
contributed to his anxiety. He and his wife divorced in 2009,
and in 2012 he moved in with his mother and stepfather
after being evicted from his apartment. In the months fol-
lowing that move, Lanigan complained to his psychiatrist
about the added stress of living with his verbally abusive
stepfather, prompting the doctor to opine that the living
arrangement had “been tough on him” and that “a lot of his
pain and stress level would be improved ultimately if he can
acquire the finances to get his own living quarters back.”
4 No. 16-2894
In June 2012, three months after applying for benefits,
Lanigan was examined by a state-agency psychologist who
concluded that he suffers from severe affective and anxiety
disorders. Lanigan told the psychologist that he “can only
pay attention for a few minutes” and is limited in his ability
to “complete tasks, concentrate, understand, follow instruc-
tions, and get along [with] others.” Based on her examina-
tion, the psychologist concluded that Lanigan’s mental
impairments could cause moderate limitations in his ability
to (1) understand, remember, and carry out detailed instruc-
tions; (2) maintain attention and concentration for extended
periods; (3) perform activities within a schedule, maintain
regular attendance, and be punctual; and (4) work in coordi-
nation with or in proximity to others without being distract-
ed by them. A second state-agency psychologist who re-
viewed Lanigan’s file several months later agreed with the
first doctor about the limitations caused by Lanigan’s mental
illness.
One feature of Lanigan’s mental illness is unmentioned
in the evaluations of the state-agency psychologists—
apparently because the problem did not arise until 2013.
That year Lanigan began experiencing recurring blackout
episodes. In June he was hospitalized on an involuntary,
emergency basis after being arrested for shooting out win-
dows with a BB gun. At the hospital he claimed he could not
recall his actions. When Lanigan was admitted, a doctor
noted that he had attempted suicide four times in the prior
six months and scored his global assessment of functioning
(commonly known as “GAF” 1) at 30 to 35. In the discharge
1The GAF is a 100-point metric used to rate overall psychological, social,
and occupational functioning, with lower scores corresponding to lower
No. 16-2894 5
summary, another doctor noted that Lanigan had been
experiencing mood swings in which he would feel okay and
then suddenly become very irritable and express fear that he
was “going to hurt people.” Lanigan had told staff he was
not having homicidal thoughts while hospitalized but,
nevertheless, said he worried about his irritable episodes
and thus avoided people and isolated himself. At an outpa-
tient visit a week after Lanigan’s release from the hospital, a
psychiatric nurse noted that he possibly suffers from a
dissociative disorder.
At his hearing before the ALJ in December 2013, Lanigan
testified about his mental-health limitations. He described
having difficulty in social situations and said he cannot go to
a grocery store without first taking medication or having
someone with him to help in case of a panic attack. He also
briefly testified about his stay in the hospital in July 2013
and other blackout episodes when he would “not remember
what I was doing.” He said, “I’ve had episodes where [I’m]
functioning. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 32–34 (4th ed., Text Rev. 2000). A GAF
score of 31 to 40 reflects “[s]ome impairment in reality testing or com-
munication (e.g., speech is at times illogical, obscure, or irrelevant) OR
major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work …).” Id. at 34 (bold
removed). The American Psychiatric Association eliminated use of the
GAF in 2013, before the ALJ’s decision in this case, citing a “conceptual
lack of clarity” and “questionable psychometrics in routine practice.”
See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 16 (5th ed. 2013). Although the American Psychiatric
Association no longer uses this metric, at the time of Lanigan’s psycho-
logical evaluations, clinicians still used GAF scores to report their
assessment of a person’s overall level of functioning.
6 No. 16-2894
sitting down at dinner with my family, they start fighting,
it’s 6:00 in the evening and next thing I know I’m sitting in
my room and it’s 9:45 and I don’t remember anything.”
When asked about his current employment, Lanigan tes-
tified that as of the date of the hearing, he had been working
part-time at Michaels craft store for five to six weeks on the
truck crew—unloading the truck, stocking the store, and
setting up displays. He described his limited interactions
with customers as “very stressful” and said he must have
another employee present with him when he encounters
customers. Lanigan testified that even his five-hour shifts
three or four days a week are hard but said his coworkers
“are really nice” and make him “feel comfortable.” He also
explained that he excuses himself three to five times during
each shift, sometimes for up to 20 minutes, so that he can
retreat to the bathroom and get his emotions “in check.” He
said his boss knows his situation “so she’s tolerant of it.”
A vocational expert also testified. The ALJ asked him to
assess whether competitive employment would be available
to a person with the following hypothetical residual func-
tional capacity (“RFC”): capable of performing low-stress
jobs constituting light work so long as those jobs involve
only routine tasks; does not require more than occasional
interaction with coworkers or the public; does not involve
piece work or a rapid assembly line; is limited to occasional
stooping, crouching, kneeling, or crawling; and can be off
task up to 10% of the workday in addition to regularly
scheduled breaks. The ALJ did not explain the source of the
10% figure. The vocational expert opined that a person with
this RFC could not operate a buffing machine or work as a
general laborer as Lanigan once had done. But, the vocation-
No. 16-2894 7
al expert continued, a person with the RFC described by the
ALJ could work as a hand packer, machine operator, or
factory inspector. The vocational expert acknowledged,
however, that this hypothetical person would be unemploy-
able if any of the following is true: he will be off task more
than 10% of the workday, he must leave his work station
and walk around when off task, he cannot interact at all with
coworkers or the public, or he will miss work more than
twice per month.
The ALJ applied the five-step analysis for assessing disa-
bility, see 20 C.F.R. §§ 404.1520(a), 416.920(a), and concluded
that Lanigan was not disabled. At step 1 the ALJ determined
that Lanigan had not engaged in substantial gainful activity
since his alleged onset in May 2009. At step 2 the ALJ identi-
fied Lanigan’s severe impairments as “degenerative disc
disease …, obesity, affective disorder, and anxiety disorder.”
And at step 3 the ALJ concluded that these impairments,
individually or in combination, do not satisfy a listing for
presumptive disability. The ALJ concluded that Lanigan’s
mental impairments do not cause two or more marked
limitations or one such limitation coupled with repeated
episodes of decompensation, and thus the paragraph B
criteria of listings 12.04 and 12.06 were not satisfied. The ALJ
acknowledged that Lanigan’s mental impairments do cause
moderate restriction in his activities of daily living and
moderate difficulty in social functioning. The ALJ reasoned,
however, that Lanigan must not have any marked limita-
tions because he was working part time in a retail environ-
ment, cares for his cat and dog, prepares meals daily, vacu-
ums, helps with laundry, drives, shops in stores, manages
money, and sees family regularly.
8 No. 16-2894
In assessing Lanigan’s RFC, the ALJ found Lanigan’s tes-
timony to be “generally credible” but rejected his statements
concerning the intensity, persistence, and limiting effects of
his mental illness. The ALJ reasoned that although Lanigan
described severe problems being in public, he “actually
works in a retail store[] about 15–22 hours a week” and has
sustained other work that would require some social interac-
tion “with no evidence that the work activity caused his
symptoms to flare-up or made him need emergency treat-
ment.” The ALJ also noted that while the record provides
“some support” for Lanigan’s testimony about his social
limitations and anxiety in public, Brian Eggener, a treating
psychiatrist, had assigned a GAF score of 65 to 70 in March
2012. This means, the ALJ posited, that Lanigan has only
mild symptoms and limitations. And even when Lanigan
was having suicidal ideations, the ALJ noted, his GAF score
was 71 upon discharge from the hospital. Moreover, the ALJ
asserted, the physician who approved Lanigan’s release said
he was not showing signs of depression or anxiety. The ALJ
commented that the record lacks “opinions from treating or
examining physicians indicating that the claimant is disa-
bled or even has limitations greater than those determined in
this decision,” and said he placed “great weight on the
opinions of the State agency medical consultants that the
claimant can sustain light to medium work” because those
opinions are “consistent with the record as a whole.” The
ALJ concluded that Lanigan’s RFC matched the hypothetical
given to the vocational expert. At step 4, then, the ALJ found
that Lanigan could not perform his past work but at step 5
concluded that he could work one of the jobs identified by
the vocational expert.
No. 16-2894 9
II. Discussion
Because the Appeals Council denied review, the ALJ’s
decision is the final word of the Commissioner of Social
Security. Scrogham v. Colvin, 765 F.3d 685, 695 (7th Cir. 2014).
The district court’s decision is reviewed de novo, so we’re
directly reviewing the ALJ’s decision. See Yurt v. Colvin,
758 F.3d 850, 856 (7th Cir. 2014). We will uphold that deci-
sion if it is supported by substantial evidence in the record.
Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014).
On appeal Lanigan argues that the hypothetical RFC
posed to the vocational expert—“hypothetical” in name only
because the ALJ assigned that very same RFC to Lanigan—is
flawed and caused the vocational expert to overstate the
available jobs that Lanigan can perform. Lanigan identifies
two flaws: First, the ALJ failed to lay a foundation for certain
limitations described in the hypothetical, including that he
might be off task up to 10% of the workday (but not more)
and that he is able to maintain “frequent” (rather than just
“occasional”) contact with coworkers and the public. Sec-
ond, Lanigan says, the hypothetical failed to account for his
moderate limitations in concentration, persistence, and pace.
See O’Connor–Spinner v. Astrue, 627 F.3d 614, 619–20 (7th Cir.
2010).
We agree with Lanigan that the ALJ’s hypothetical is not
supported by substantial evidence. See Ehrhart v. Sec’y of
Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992)
(stating the rule that a hypothetical question must be sup-
ported by medical evidence in the record). The ALJ instruct-
ed the vocational expert to evaluate a hypothetical person
who would “be off task up to 10% of the work day, in addi-
tion to regularly scheduled breaks.” Significantly, the voca-
10 No. 16-2894
tional expert testified that persons who will be off task less
than 10% of the workday are capable of maintaining full-
time employment. But those who will be off task more than
10% of the time, the expert acknowledged, will be incapable
of maintaining competitive employment and thus are disa-
bled. Lanigan argues that the ALJ had no basis to conclude
that he wouldn’t be off task more than 10% of the time,
especially given his unrebutted testimony that he was taking
unscheduled breaks (sometimes for 20 minutes) three to five
times during his five-hour shifts at Michaels. At that rate it’s
likely Lanigan would be off task more than 10% of a typical
workday.
The Commissioner responds that the ALJ’s 10% calcula-
tion was supported by the state-agency psychologists, who
opined that Lanigan demonstrated adequate ability to
sustain concentration and had only moderate—not
marked—difficulty in various functional areas. But the
Commissioner’s position is unpersuasive for two reasons.
First, the ALJ made no effort to “build an accurate and
logical bridge,” see Beardsley v. Colvin, 758 F.3d 834, 837 (7th
Cir. 2014), between the ”no more than 10%” finding and the
psychologists’ general assessment that Lanigan exhibits
moderate difficulty in areas like the “ability to maintain
attention and concentration for extended periods” and the
“ability to perform activities within a schedule.” An ALJ
need not address every piece of evidence, but he must
establish a logical connection between the evidence and his
conclusion. O’Connor–Spinner, 627 F.3d at 618. That did not
happen here.
Second, the ALJ did not explain why he gave more
weight to the opinions of the state-agency psychologists than
No. 16-2894 11
he did to Lanigan’s long-time counselor, Carrie Paisar.
Edmund Musholt, one of the reviewing state-agency psy-
chologists, opined that Lanigan’s claim that he cannot pay
attention for more than a few minutes is “only partially
credible because exams show his activities and interests
involve adequate ability to sustain concentration and social
interaction.” But Dr. Musholt did not identify, and thus the
ALJ had no way of knowing, what “activities and interests”
Lanigan supposedly was tackling adequately. Perhaps
Lanigan was succeeding at “activities and interests” relevant
to competitive employment, or he might have been excelling
at wholly irrelevant tasks, e.g., caring for his pets or vacu-
uming the house. See Stark v. Colvin, 813 F.3d 684, 688 (7th
Cir. 2016) (concluding that the claimant’s “persistence in
struggling through household chores despite her pain does
not mean, as the ALJ extrapolated, that she can manage the
requirements of the work-place” because a person perform-
ing chores, unlike an employee, has more flexibility “and is
not held to a minimum standard of performance”); Hill v.
Colvin, 807 F.3d 862, 865, 869 (7th Cir. 2015) (warning against
equating the activities of daily living—like babysitting,
caring for pets, going to church, visiting with family mem-
bers, and doing household chores—with those of a full-time
job). On this record there is no way to know. In addition,
Dr. Musholt’s assessment of Lanigan’s credibility differs
from that of Esther Lefevre, the psychologist who actually
examined Lanigan in June 2012. True, Dr. Lefevre did not
fully credit Lanigan’s account of his physical limitations, but
she did not say anything suggesting skepticism about his
report of significant mental limitations.
Further, Dr. Musholt’s assessment dates to March 2013,
before Lanigan’s involuntary commitment in June 2013, and
12 No. 16-2894
nothing is said about how long Dr. Lefevre spent examining
Lanigan in 2012. In contrast, the records from Paisar, who
had been seeing Lanigan weekly or biweekly for roughly
two years, recount that in July 2013 Lanigan had “talked
about being fearful of what he might do if he gets angry and
‘blacks out’” again and was “frustrated with not being able
to remember time periods.” The counselor’s opinion is more
recent than those of the state-agency consultants, and it
corroborates Lanigan’s own account of serious difficulties
with concentration. See Clifford v. Apfel, 227 F.3d 863, 870 (7th
Cir. 2000) (“[M]ore weight is generally given to the opinion
of a treating physician because of his greater familiarity with
the claimant’s conditions and circumstances.”). Yet the ALJ
seized on just one of Lanigan’s many sessions with Paisar—
when Lanigan had reported enjoying a day outdoors with a
friend—and from that single session concluded that “in-
creasing his activity outside of the house” had improved
Lanigan’s symptoms “rather than caused anxiety attacks or
other problems.” That selective reading of two years of
treatment notes is not persuasive. See Larson v. Astrue,
615 F.3d 744, 751 (7th Cir. 2010) (having “symptoms that
‘wax and wane’ [is] not inconsistent with a diagnosis of
recurrent, major depression”); Bauer v. Astrue, 532 F.3d 606,
609 (7th Cir. 2008) (a claimant with a chronic disease like
bipolar disorder “is likely to have better days and worse
days,” and even if “half the time she is well enough that she
could work,” she still “could not hold down a full-time job”).
Similarly, the ALJ’s conclusion that Lanigan could main-
tain frequent (instead of only occasional) contact with
coworkers is not supported by the record. The distinction
matters because the vocational expert testified that someone
who is limited to occasional contact with coworkers and has
No. 16-2894 13
the hypothetical’s other limitations cannot maintain compet-
itive employment. The ALJ reasoned that although Lanigan
described severe problems being in public, he “actually
works in a retail store[] about 15–22 hours a week” and has
sustained other work that would require some social interac-
tion “with no evidence that the work activity caused his
symptoms to flare-up or made him need emergency treat-
ment.”
We have cautioned ALJs not to draw conclusions about a
claimant’s ability to work full time based on part-time
employment. See Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir.
2011) (explaining that a claimant’s “brief, part-time em-
ployment” did not support the conclusion “that she was able
to work a full-time job, week in and week out, given her
limitations”); Larson, 615 F.3d at 752 (“There is a significant
difference between being able to work a few hours a week
and having the capacity to work full time.”). That is especial-
ly true when, as here, the claimant’s employer is accommo-
dating him. See Larson, 615 F.3d at 752. At the hearing Lani-
gan testified that his supervisor at Michaels was aware of his
mental illness and “tolerant of it.” Instead of acknowledging
the employer’s commendable generosity, the ALJ assumed
that Lanigan’s work performance was no different than any
other employee’s. Equally troubling, the ALJ failed to men-
tion that Lanigan had been on the job for just six weeks, far
too short a time to infer anything about his prospects of
maintaining even part-time employment. See Jelinek, 662 F.3d
at 812; Larson, 615 F.3d at 752. And, finally, Lanigan’s testi-
mony directly contradicts the ALJ’s assertion that his work
activity never “caused his symptoms to flare-up.” Lanigan
testified that the very purpose of his frequent breaks was to
make sure his “emotions [were] in check.” And he said that
14 No. 16-2894
on Black Friday he “melted down on the floor” and “went in
the back for over a half hour just to get away from every-
body.”
Thus, as Lanigan contends, the ALJ’s hypothetical in-
cludes assumptions about his RFC that simply lack support
in the record. And, as Lanigan further argues, there is a
second serious flaw in the hypothetical: it fails to account for
his moderate limitations in concentration, persistence, and
pace. See O’Connor–Spinner, 627 F.3d at 619 (“Among the
limitations the [vocational expert] must consider are defi-
ciencies of concentration, persistence and pace.”). We have
said that an ALJ must explicitly address those limitations in
the hypothetical unless one of three exceptions applies:
(1) the vocational expert was independently familiar with
the claimant’s medical file; (2) the hypothetical adequately
apprised the vocational expert of the claimant’s underlying
mental conditions; or (3) the hypothetical otherwise ac-
counted for the limitations using different terminology. Id. at
619–20.
None of the exceptions applies here. As for the first, the
Commissioner does not contend that the vocational expert
examined Lanigan’s medical records, even if he might have
reviewed information about Lanigan’s employment history.
And though the vocational expert was present when
Lanigan testified at the hearing, that testimony was too
limited to provide a complete and full picture of his mental
limitations. Regarding the next two exceptions, the Commis-
sioner argues that the ALJ’s hypothetical effectively com-
municated, in different words, the idea that Lanigan had
experienced “moderate difficulties in concentration, persis-
tence, or pace.” We cannot agree. The hypothetical begins by
No. 16-2894 15
positing a person capable of performing “simple, routine,
and repetitive tasks.” These terms refer to “unskilled work,”
which the regulations define as work that can be learned by
demonstration in less than 30 days. See 20 C.F.R. §§ 404.1568,
404.1520.
We have explained that the speed at which work can be
learned is unrelated to whether a person with mental im-
pairments—i.e., difficulties maintaining concentration,
persistence, or pace—can perform such work. See Yurt,
758 F.3d at 858–59 (rejecting the notion that “confining the
claimant to simple, routine tasks and limited interactions
with others adequately captures temperamental deficiencies
and limitations in concentration, persistence, and pace”);
Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009); Craft v.
Astrue, 539 F.3d 668, 677–78 (7th Cir. 2008). The Commis-
sioner also argues that the hypothetical about “off-task”
behavior informed the vocational expert about Lanigan’s
moderate difficulties in the domain of concentration, persis-
tence, or pace. As we’ve noted, however, to the extent that
the 10% calculation was flawed, so was the hypothetical. See
Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir. 2004) (“For all
of the same reasons that the RFC fell short, the hypothetical
question, which was based entirely on that RFC[,] did as
well.”).
Additionally, the Commissioner argues that even if the
ALJ’s hypothetical was flawed, Lanigan waived any chal-
lenge to it by not objecting to the vocational expert’s testi-
mony during the hearing. The Commissioner relies on
Donahue v. Barnhart, which holds that claimants must raise
objections to a vocational expert’s testimony at the hearing.
279 F.3d 441, 446 (7th Cir. 2002). But Lanigan is not challeng-
16 No. 16-2894
ing the vocational expert’s testimony. Rather, he is challeng-
ing the lack of a substantial basis for the ALJ’s characteriza-
tion of Lanigan’s mental RFC in the hypothetical questions
he posed to the vocational expert.
Accordingly, we REVERSE the decision upholding the
ALJ’s denial of benefits and REMAND to the agency for
further proceedings.