In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2228
RONNIE L. WINSTED, JR.,
Plaintiff‐Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:17‐cv‐00137‐MJD‐WTL — Mark J. Dinsmore, Magistrate Judge.
____________________
ARGUED JANUARY 24, 2019 — DECIDED FEBRUARY 8, 2019
AS AMENDED ON DENIAL OF REHEARING APRIL 3, 2019
____________________
Before MANION, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. Ronnie Winsted applied for disa‐
bility insurance benefits and supplemental security income
claiming disability based on numerous conditions, including
degenerative disc disease, osteoarthritis, and anxiety. An ad‐
ministrative law judge denied benefits, finding that Winsted
could work with certain limitations. After the district court
2 No. 18‐2228
upheld this denial, Winsted appealed, arguing the ALJ did
not consider his difficulties with concentration, persistence,
and pace. We agree—the ALJ did not adequately explain how
the limitations he placed on Winsted’s residual functional ca‐
pacity accounted for the claimant’s mental difficulties, so we
remand to the agency.
I. Background
Winsted was 42 years old when he applied for benefits,
asserting an onset date of October 2010. Although he initially
alleged he became disabled in 2005, two prior applications al‐
leging this onset date were denied and deemed administra‐
tively final.
Winsted suffers from multiple physical impairments,
mostly associated with his previous work in hard labor as an
industrial truck driver, a highway maintenance worker, and
an operating engineer. MRIs taken in 2010 and 2011 showed
he had focal, isolated degenerative disc disease. Other tests
revealed osteoarthritis, mild carpal tunnel syndrome in his
hands, and cavus (high‐arched) foot that he treats with special
shoes.
Winsted complained of shortness of breath in May 2011
and was diagnosed with acute bronchitis and chronic obstruc‐
tive pulmonary disease (“COPD”). Although he wheezed at
times, he often responded well to medication. Throughout the
relevant period, Winsted sometimes complained of wheez‐
ing, but often his lungs were clear. A pulmonary function test
in 2013, however, showed Winsted had moderate obstructive
lung disease and possibly restrictive lung disease.
Winsted began seeing an internist, Dr. Nedu Gopala, for
back pain in August 2013. The doctor prescribed medication
No. 18‐2228 3
for Winsted’s breathing, chest pain, back pain, and anxiety.
At appointments throughout 2013 and into March 2015, Win‐
sted’s range of motion in his arms and legs alternated from
full, to limited. He maintained a chronic cough, mild short‐
ness of breath, and wheezing, though a 2014 pulmonary func‐
tion test did not show any evidence of lung obstruction.
To address stress‐related heart issues, Winsted sought
mental‐health treatment in 2012. A therapist diagnosed him
with a panic disorder, posttraumatic stress disorder, and ma‐
jor depressive disorder. Winsted had a guarded attitude,
“very little insight,” “below average” intellect, and was as‐
signed a Global Assessment of Function (“GAF”) of 51, indi‐
cating he had moderate difficulty in social and occupational
functioning.1 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994).
In his therapy appointments, Winsted regularly complained
about altercations with neighbors.
Later that year, Winsted sought treatment from a psychia‐
trist, who diagnosed major depressive disorder and assigned
a GAF of 45, indicating a serious impairment in social or oc‐
cupational functioning. AM. PSYCHIATRIC ASS’N, supra. The
psychiatrist reported that Winsted was tense, anxious, “very
restless,” and moderately depressed. He prescribed medica‐
tion for anxiety and depression and continued to treat Win‐
sted.
1 The GAF, which assesses an “individual’s overall level of func‐
tioning,” Craft v. Astrue, 539 F.3d 668, 676 n.7 (7th Cir. 2008), no longer is
widely used by psychiatrists and psychologists, but it was sometimes re‐
ferred to in social security disability hearings during Winsted’s proceed‐
ings. See Price v. Colvin, 794 F.3d 836, 839 (7th Cir. 2015).
4 No. 18‐2228
Between September 2013 and February 2015, Winsted’s
mental health fluctuated. In September 2013, Winsted’s psy‐
chiatrist reported that his affect was appropriate, his mood
was not depressed, and “on the whole [he was] doing better.”
But two months later, Winsted’s affect was anxious, his mood
was depressed, he was “feeling more irritable, anxious, and
restless,” and he suffered panic attacks. At a therapy session
in July 2014, a therapist reported Winsted’s “symptoms of de‐
pression and worry impair overall functioning,” and in Au‐
gust and November 2014, he was “mildly depressed.” But in
February 2015, Winsted presented with an appropriate affect
and a not‐depressed mood. The same was true in April 2015,
though Winsted reported he sometimes felt “tense and anx‐
ious” and stress continued to cause him to “become over‐
whelmed.”
The disability application also triggered an examination in
2013 from an agency psychologist, Dr. Steven Marlow, who
diagnosed Winsted with major depressive disorder, a gener‐
alized anxiety disorder, and a panic disorder. Specifically, he
reported Winsted “has a[n] avoidant, hostile, and easily dis‐
tracted attitude.” Dr. Marlow determined Winsted had below
average levels of mental control, understanding and memory,
and concentration; poor levels of persistence; and he did not
do well in social situations.
A state‐agency physician, Dr. George Siderys, also exam‐
ined Winsted in 2013 and opined he had a mild functional im‐
pairment. This included: “mild decrease in range of motion,”
pain that would be “expected to cause him problems with
prolonged standing, walking, or heavy lifting,” and a history
of heart difficulties that would cause him to “wear out if he
participated in prolonged walking or lifting.”
No. 18‐2228 5
In connection with Winsted’s disability claim, treating
physician Dr. Gopala completed a physical residual func‐
tional capacity (“RFC”) questionnaire in early 2015 and re‐
ported Winsted suffered from hypertension, COPD, and back
pain, and described Winsted’s prognosis for back pain as
“poor.” He determined Winsted had a “painful range of
movement” and was incapable of performing even “low
stress” work. Dr. Gopala also wrote that Winsted’s symptoms
would affect his attention and concentration frequently; he
could walk only about one block; and he could sit or stand for
only 15 minutes at a time.
One of the therapists at the center where Winsted received
treatment, Jessica Nevill, filled out a mental RFC question‐
naire in April 2015. She opined Winsted had marked impair‐
ments in his abilities to: relate to other people, respond to su‐
pervision, respond to work pressures, and respond appropri‐
ately to changes in the work setting. She wrote Winsted
would miss work three to four days per month because of his
impairments.
After the Social Security Administration denied Winsted’s
application, he had a hearing before an ALJ. Winsted testified
he used an inhaler twice a day, slept with a CPAP machine,
used a nebulizer for breathing every three months, and con‐
tinued to smoke a half‐a‐pack of cigarettes per day. He said
he could not grip a two‐liter bottle with his left hand. Due to
the pain in his knees and feet, he said he could stand for only
a few minutes and, even then, he could not stand still. He also
said he could walk only a few blocks before needing to stop
and catch his breath, and experienced chest pain three to four
times per week. He noted he has trouble getting along with
people and does not like to be around groups.
6 No. 18‐2228
After Winsted testified, the ALJ asked the vocational ex‐
pert (“VE”) three hypothetical questions. First, the ALJ asked
the VE to consider an individual of the same age, education,
and work experience as Winsted. He continued:
This hypothetical individual would be capable
of light work, but four hours maximum stand‐
ing and walking in an eight hour day, only oc‐
casional climbing of ramps, and stairs, but no
ropes, ladders, or scaffolds, only occasional bal‐
ancing, stooping, kneeling, crouching, and
crawling. Frequent, but not constant handling
and fingering bilaterally. This individual would
need to avoid concentrated exposure to breath‐
ing irritants, such as fumes, orders, dust, and
gasses, as well as wet, slippery surfaces, and un‐
protected heights and would further be limited
to only simply reaching, repetitive tasks, with
few workplace changes, no team work, and no
interactions with the public.
The expert determined such a person could work as a bench
assembler, electronics worker, or production assembler. In
the second hypothetical, the ALJ asked about an individual
with the same limitations as in the first hypothetical, but who
also “due to impair‐related symptoms, such as the need to lay
down during the day to relieve pain would be off task 20% of
the work day.” The VE replied that such an individual could
not sustain employment. Finally, the ALJ asked about a per‐
son with all the same limitations as provided in the first hy‐
pothetical, “but due to the frequency of bad days versus good
days, this individual would have two unscheduled absences
No. 18‐2228 7
per month.” Again, the VE answered, “there would be no
jobs.”
The ALJ conducted the Administration’s 5‐step analysis,
see 20 C.F.R. § 404.1520(a), § 416.920(a), and found Winsted
not disabled. At Step 1 the ALJ determined Winsted had not
engaged in substantial gainful activity since October 22, 2010.
At Step 2 the ALJ identified Winsted’s severe impairments as
degenerative disc disease of the lumbar spine, bilateral carpal
tunnel syndrome, osteoarthritis in his left knee, bilateral ca‐
vus foot, COPD, obstructive sleep apnea, obesity, an affective
disorder, and an anxiety disorder. At Step 3 the ALJ acknowl‐
edged Winsted had moderate difficulty with social function‐
ing and concentration, persistence, and pace because of his
mental‐health issues, but concluded these severe impair‐
ments did not meet a listing for presumptive disability. Be‐
tween Steps 3 and 4 the ALJ determined Winsted had the req‐
uisite RFC to perform light work with certain limitations (as
provided in the first hypothetical, and including being limited
to “simple, routine, repetitive tasks with few workplace
changes, no team work, and no interaction with the public”)
but his limitations precluded him from performing his past
relevant work (Step 4). At Step 5 the ALJ concluded, based on
Winsted’s age, education, work experience, and RFC, that he
was capable of successfully changing to other work.
Winsted appealed to the agency’s Appeals Council, which
denied review. He then sought judicial review, and the par‐
ties agreed to have a magistrate judge adjudicate this case.
See 28 U.S.C. § 636(c). That judge upheld the ALJ’s decision.
8 No. 18‐2228
II. Analysis
A. ALJ’s Evaluation of Winsted’s Limitations in Concen‐
tration, Persistence, and Pace
Winsted argues neither the ALJ’s RFC nor his first
hypothetical question properly accounted for the finding that
he has “moderate” difficulties with concentration,
persistence, and pace. The ALJ’s proposed limitations—that
Winsted perform only “simple, routine, repetitive tasks with
few workplace changes”—fails, in his view, to address his
concentration‐functioning deficits because “both the
hypothetical posed to the VE and the ALJ’s RFC assessment
must incorporate all of the claimant’s limitations supported
by the medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th
Cir. 2015).
Winsted’s argument here is correct. Again and again, we
have said that when an ALJ finds there are documented limi‐
tations of concentration, persistence, and pace, the hypothet‐
ical question presented to the VE must account for these lim‐
itations. Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018);
Varga, 794 F.3d at 814–15; OʹConnor‐Spinner v. Astrue, 627 F.3d
614, 620 (7th Cir. 2010); Stewart v. Astrue, 561 F.3d 679, 684
(7th Cir. 2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir.
2003); see also Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.
2004). We have also made clear that in most cases “employing
terms like ‘simple, repetitive tasks’ on their own will not nec‐
essarily exclude from the VE’s consideration those positions
that present significant problems of concentration, persis‐
tence and pace,” and thus, alone, are insufficient to present
the claimant’s limitations in this area. OʹConnor‐Spinner,
627 F.3d at 620; see Moreno, 882 F.3d at 730. Here, at Step 3 the
ALJ found Winsted’s moderate difficulties with
No. 18‐2228 9
concentration, persistence, and pace could cause problems
with concentration and following written instructions, as well
as stress with changes in his routine. And Winsted’s psychia‐
trist and therapist both remarked that stress caused Winsted
to “become overwhelmed” and his depression impaired his
overall functioning.
But the first hypothetical the ALJ posed to the VE did not
direct the expert to consider problems with concentration,
persistence, and pace, which is the hypothetical the ALJ relied
on for the RFC. Though particular words need not be in‐
canted, we cannot look at the absence of the phrase “moderate
difficulties with concentration, persistence, and pace” and
feel confident this limitation was properly incorporated in the
RFC and in the hypothetical question. See OʹConnor‐Spinner,
627 F.3d at 619. The ALJ may have thought, as the agency pro‐
poses, he was addressing Winsted’s concentration difficulties
by including limitations that would minimize social interac‐
tion. But that restriction could just have likely been meant to
account for Winsted’s moderate difficulty with social func‐
tioning—the ALJ acknowledged Winsted experiences anxi‐
ety, panic attacks, and irritability when he is around people.
Nothing in the hypothetical question and RFC, however, ac‐
counted for the ALJ’s discussion of how Winsted’s low GAF
scores reflect serious mental‐health symptoms or his mention
that Winsted often “appeared tense, anxious, and/or restless”
without interacting with other people. Additionally, where a
claimant’s limitations are stress‐related, as Winsted’s appear
to be, the hypothetical question should account for the level
of stress a claimant can handle. See Arnold v. Barnhart, 473 F.3d
816, 820, 823 (7th Cir. 2007); Johansen v. Barnhart, 314 F.3d 283,
285, 288–89 (7th Cir. 2002). But there was no restriction related
to stress in the RFC or hypothetical question.
10 No. 18‐2228
Notably, it appears the ALJ disregarded testimony from
the VE about a person with limitations in concentration, per‐
sistence, and pace. The ALJ asked two additional hypothetical
questions to the VE about an individual who would either be
off task 20% of the workday or would have two unscheduled
absences per month—seemingly having in mind someone
with “moderate difficulties with concentration, persistence,
and pace.” The VE responded that neither individual could
sustain employment. But these responses are not reflected in
the ALJ’s decision. Because the ALJ did not include Winsted’s
difficulties with concentration, persistence, and pace in the
hypothetical he did consider, the decision cannot stand.
B. ALJ’s Evaluation of the Medical Opinion Evidence
Winsted also challenges the evidentiary weight the ALJ
gave to four medical opinions, two from treating medical pro‐
fessionals (Dr. Gopala and Ms. Nevill) and two from state
agency doctors (examining psychologist Dr. Marlow and con‐
sultative examiner Dr. Siderys).
Before reaching the merits of this argument, we must ad‐
dress the agency’s contention that Winsted waived it. The
agency is not correct on this; Winsted never “knowingly and
intelligently relinquished” his claim, Wood v. Milyard, 566 U.S.
463, 470 n.4 (2012). That he developed the argument poorly
means at most he forfeited it. Brown v. Colvin, 845 F.3d 247,
254 (7th Cir. 2016).
Forfeited or not, this argument fails. In the decision, the
ALJ adequately articulated why he gave each opinion the
weight he did, entitling his decision, in this respect, to our def‐
erence. See Elder v. Astrue, 529 F.3d 408, 413, 416 (7th Cir.
2008). Starting with Dr. Gopala, the ALJ appropriately
No. 18‐2228 11
questioned the doctor’s conclusion—that Winsted had a pain‐
ful range of motion that made him incapable of engaging in
“low‐stress” work—in light of other record evidence. This in‐
cluded Dr. Gopala’s own notes, which showed Winsted reg‐
ularly had a full range of motion, no gross sensory or motor
deficits, fine motor skills within normal limits, and lungs that
“have often been clear.” And though treating physician’s
opinions, like Dr. Gopala’s, are usually entitled to controlling
weight, see 20 C.F.R. § 404.1527(c)(2); SSR 96‐2p,2 an ALJ may
discredit the opinion if it is inconsistent with the record.
See Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016); Camp‐
bell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); 20 C.F.R.
§ 404.1527(c)(2).
Next, Winsted argues the ALJ erred in giving little eviden‐
tiary weight to Ms. Nevill’s mental RFC assessment. But the
ALJ wrote he discounted Ms. Nevill’s report because she was
a non‐medical professional, and thus not an “acceptable med‐
ical source” See 20 CFR § 404.1513(a), § 416.913(a). Also, her
findings were “based solely on [Winsted’s] subjective com‐
plaints”—an appropriate reason for an ALJ to discount an
opinion, see Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.
2008). Additionally, he found Ms. Nevill’s report, like Dr. Go‐
pala’s, was inconsistent with Winsted’s medical‐health record
as a whole. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012)
(citing 20 C.F.R. § 404.1527(c)(2)‐(3)).
2 The treating‐physician rule, which was eliminated for claims
filed after March 27, 2017, see 20 C.F.R. § 404.1520c (2017), still applies to
Winsted’s earlier filed claim, see Gerstner v. Berryhill, 879 F.3d 257, 261
(7th Cir. 2018); 20 C.F.R. § 404.1527.
12 No. 18‐2228
Finally, Winsted claims the ALJ gave short shrift to the
two state examiners’ 2013 opinions, asserting the ALJ erred in
discussing the state psychologist’s evaluation “in one sen‐
tence” and the state physician’s opinion in a footnote. But as
the agency points out, the ALJ discussed these opinions
throughout the decision. The ALJ cited the state psycholo‐
gist’s findings when discussing Winsted’s mental‐health di‐
agnosis, and referred repeatedly to the state physician’s opin‐
ion throughout his discussion of Winsted’s gait, grip strength,
and scattered wheezing. The court applies a common‐sense
reading to the entirety of an ALJ’s decision. Rice v. Barnhart,
384 F.3d 363, 369 (7th Cir. 2004); Shramek v. Apfel, 226 F.3d 809,
811 (7th Cir. 2000). Here, the ALJ adequately articulated his
reasons for discounting these two opinions—both reports
were based on only one evaluation and largely reflected Win‐
sted’s subjective reporting. See Elder, 529 F.3d at 416; Rice, 384
F.3d at 371 (ALJs should rely on medical opinions “based on
objective observations,” not “subjective complaints.”);
20 C.F.R. § 404.1527(c)(i) (ALJs should consider “frequency of
examination” in weight it assigns opinion).
III. Conclusion
Because the ALJ’s hypothetical question to the vocational
examiner and the residual function capacity did not capture
one of Winsted’s most significant problems—his concentra‐
tion‐functioning deficits—we conclude further proceedings
are necessary on that issue only. We thus reverse the district
court judgment and remand this case to the Social Security
Administration.