Hortansia Lothridge v. Andrew Saul
7th Cir.
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1269
HORTANSIA D. LOTHRIDGE,
Plaintiff-Appellant,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:19-cv-00067-JVB — Joseph S. Van Bokkelen, Judge.
____________________
ARGUED NOVEMBER 17, 2020 — DECIDED JANUARY 5, 2021
____________________
Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
HAMILTON, Circuit Judge. Plaintiff Hortansia Lothridge
suffers from fibromyalgia, chronic obstructive pulmonary
disorder, asthma, hypertension, and several mental-health
conditions. After an administrative law judge denied her
application for disability benefits, a district judge remanded
her case for further explanation of how the ALJ considered
2 No. 20-1269
Lothridge’s periodic non-compliance with treatments. On
remand, the ALJ again denied the application, finding that
Lothridge could still perform light work with certain
limitations. On judicial review, a different district judge
upheld that determination, and Lothridge has appealed.
In assessing Lothridge’s impairments at step three of the
five-step disability analysis, the ALJ found moderate
limitations in concentration, persistence, and pace. In
determining her residual functional capacity at step four,
however, the ALJ failed to take those limitations into account.
This oversight was important because the jobs that the ALJ
determined that Lothridge could still perform would require
the ability to stay on-task for at least 90% of the workday and
would have little tolerance for tardiness or absences. The ALJ
made no determination one way or another whether
Lothridge is capable of meeting these requirements with her
deficits in concentration, persistence, and pace. We therefore
vacate the judgment and remand the case to the
Commissioner of Social Security.
I. Factual Background
Lothridge applied for disability insurance benefits and
supplemental security income in May 2013, when she was
about 33 years old. She asserted that she was disabled by
fibromyalgia and a host of other physical and psychological
problems. Before that, she had worked as a certified nurse
aide, a daycare worker, a cashier, and a telemarketer. She had
tried to earn her GED after dropping out of high school, but
she became frustrated after a week of classes and earned a
certified nursing assistant license instead. Hip and back pain
caused her to stop working in December 2009.
No. 20-1269 3
A. Treatment History
The ALJ found that Lothridge’s physical impairments
limited her to light work, with additional, common
limitations regarding climbing, posture, and environmental
limits. Lothridge does not challenge the evaluation of her
physical abilities. She challenges only the ALJ’s assessment of
her limitations in concentration, persistence, and pace, so we
say little about the physical limitations and her extensive
medical history on her physical impairments. We concentrate
on her mental-health history.
Before Lothridge stopped working in 2009, she saw a
psychiatrist in Nebraska for mood swings, anxiety, lack of
focus, and forgetfulness. The psychiatrist noted that
Lothridge had poor judgment and diagnosed her with mood
disorders, attention deficit disorder, and bipolar I disorder.
She also prescribed medication. Lothridge’s treatment and
prescriptions lapsed, however, because she was in and out of
the state with her family.
After Lothridge settled with her husband in Indiana, her
sister took her to a family doctor, Dr. Marilyn Whitney, to re-
establish care in October 2012. At her initial appointment,
Lothridge reported pain “all over my body” and multiple
psychiatric issues, including depression, anxiety, and
paranoia. Later she complained of continuing pain and
excessive sleeping. Dr. Whitney eventually diagnosed several
chronic conditions, including fibromyalgia, and prescribed
medication to control them.
In August 2013, Lothridge sought mental-health
counseling. At a screening appointment, she reported panic
attacks, sleep disturbances, anger, depression, anxiety, and
4 No. 20-1269
chronic pain that affected her moods. She reported that she
was a victim of childhood sexual abuse and thought about
suicide, though she had no active plans. She was afraid to be
alone or to drive alone, but she often self-isolated. A clinician
diagnosed bipolar I disorder and learning disabilities and
assessed significant problems with decision-making,
moderate problems with social functioning, and problems
with remote memory. Observing that Lothridge struggled
with taking her medication and did not understand or know
how to manage her symptoms, the clinician referred
Lothridge for in-home therapy.
Over the next two months, as Lothridge’s disability-
benefits application was being processed, two agency doctors
reviewed her file. Dr. Richard Wenzler, an internist, noted
that she had affective disorders and believed that her
allegations about the intensity, persistence, and limiting
effects of her impairments were substantiated by medical
evidence. Ultimately, though, he concluded that the record
lacked sufficient evidence to determine whether Lothridge
was disabled. Similarly, psychologist Dr. F. Kladder said the
evidence was not sufficient to draw conclusions about the
severity of her mental limitations.
In October, agency psychologist Dr. Glenn Davidson
conducted a mental-health examination. Lothridge arrived
late after calling the office twice for directions, and her cousin
accompanied her because she was afraid to drive alone. (She
had missed three prior appointments because she had
confused the times.) Lothridge said that she lived with her
children and did “some little bit of housework” but otherwise
“didn’t go anywhere or do anything.” Dr. Davidson noted
that she suffered from anxiety, depression, and chronic pain.
No. 20-1269 5
Her long-term memory seemed intact, but she had trouble
with immediate memory. She could not retain number
sequences beyond four digits forward and had problems with
delayed recall. Dr. Davidson diagnosed mood disorder and
post-traumatic stress disorder. He gave her a Global
Assessment of Functioning (GAF) score of 60, signaling
moderate difficulties with social and occupational
functioning. See Diagnostic and Statistical Manual of Mental
of Mental Disorders 34 (4th Ed. Text Rev. 2013).
A month later, in November 2013, Lothridge began in-
home mental-health therapy with psychiatric nurse
practitioner Tamara Reynolds. Lothridge was sad and
irritable, displayed a flat affect, struggled to maintain eye
contact, and cried or giggled when she was asked questions.
Reynolds noted that Lothridge’s memory was poor and that
she suffered from paranoia, depression, suicidal ideas,
flashbacks, agoraphobia, mood swings, and episodes of
elation accompanied by memory loss. Reynolds diagnosed
bipolar I disorder, depression, and post-traumatic stress
disorder, and she prescribed antidepressants and medication
for attention deficit disorder. She also checked a box
indicating that Lothridge had “significant functional
impairment” in the areas of daily living, interpersonal
functioning, adapting to change, occupational functioning,
and concentration, persistence, and pace. Reynolds also noted
that Lothridge had moderate problems with focus.
In early 2014, agency psychologist Dr. Donna Unversaw
re-evaluated Lothridge’s records and opined that she had
memory limitations, social-interaction limitations, and
sustained limitations in concentration and pace. Nonetheless,
she believed, Lothridge had the mental capacity to:
6 No. 20-1269
understand, remember, and carry-out simple
tasks; … relate on at least a superficial basis on
an ongoing basis with co-workers and
supervisors; … attend to task for sufficient
period of time to complete tasks; … [and]
manage the stresses involved with work.
In the meantime, Lothridge continued seeing Dr. Whitney,
who documented continuing complaints of pain, depression,
and anxiety, and who noted that Lothridge had begun to
suffer from migraines. Dr. Ehlich, a rheumatologist who was
treating Lothridge’s fibromyalgia, noted in 2014 that, in
addition to diffuse pain, Lothridge had headaches,
depression, anxiety, fatigue, and cognitive impairments.
Despite her compliance with treatment, he observed, her
condition was worsening. In April 2015, he wrote a note
saying that she would be unable to work for at least the next
year.
Another agency doctor, internist Dr. Xavier Laurente,
examined Lothridge in August 2015. She was then taking
antidepressants and anticonvulsants for fibromyalgia and
ibuprofen for headaches. Beyond his findings about
Lothridge’s physical health, Dr. Laurente indicated that
Lothridge could not travel without a companion or use public
transportation, but that she could shop and handle her
personal hygiene and finances.
Over the next year, Lothridge struggled to comply with
her treatment. She missed several appointments with her
family doctor. She temporarily stopped taking all her
medicine because she said it made her drowsy and she feared
it would kill her.
No. 20-1269 7
In March 2016, nurse practitioner Reynolds documented
poor concentration, panic attacks, depression, and irritability.
Lothridge was trying to address her stressors, Reynolds
noted, but she showed limited progress in applying coping
skills. In the following months, Lothridge’s depression
worsened. She struggled to get out of bed, to complete her
personal hygiene, and to clean her home. When Reynolds told
Lothridge that her therapy program would end in May of the
next year, she became distressed because she did not have a
driver’s license to attend in-person sessions. On Reynolds’s
advice, she applied to her clinic for intensive case
management services but was denied.
At a February 2017 appointment, Dr. Whitney observed
that Lothridge appeared bewildered and demonstrated poor
judgment, so she recommended ongoing psychiatric follow-
ups. Later, in November 2017, Lothridge attempted to restart
mental-health therapy. At a walk-in appointment, she sat in
the far corner of the room and faced the wall. She reported
chronic pain, fear of medication, flashbacks, trouble
connecting with others, and difficulty remembering events. A
clinician assessed a moderate degree of self-care impairment,
difficulty with decision-making, impaired social function,
and challenges with concentration. Further, Lothridge tended
to self-isolate, suffered from frequent panic attacks, and
sometimes could not get out of bed because of pain and
depression. She also had difficulties caring for her children.
B. Procedural History
An ALJ held a hearing on Lothridge’s disability claim in
June 2015. Lothridge, who was accompanied by family,
testified that she struggled with pain in her hands, shoulders,
back, and hips. She could not remember all the medications
8 No. 20-1269
she was taking. They dulled the pain but did not take it away
completely. She was able to shop sometimes but had to take
her children with her and often left mid-task when she was
overwhelmed. It took her six or seven attempts to pass her
driver’s test. Her children did most of the housework and,
when she sometimes supervised, she had to take frequent
breaks.
In September 2015, the ALJ found that Lothridge was not
disabled within the meaning of the Social Security Act.
Lothridge sought review in the district court, and Judge
Springmann remanded the case with instructions to the ALJ
to develop the record regarding Lothridge’s gaps in treatment
and to explain the weight given to her treating sources.
In September 2018, Lothridge appeared for a second
hearing before the same ALJ, again accompanied by family.
She testified about her gaps in mental-health treatment,
explaining that she had a “mixed” relationship with
providers. She had trusted Reynolds but struggled to find
another therapist after Reynolds left her clinic. Lothridge
struggled to attend in-person appointments because she
forgot the times and could not find transportation. Though
she had regained her driver’s license after a temporary
suspension, driving was painful, and she was afraid to be on
the road. (She had to pull over a few times on the way to the
hearing despite having a companion.) And she said had
stopped taking some of her medications for a while because
she thought they would kill her. She had not been able to cook
for years and struggled to complete simple household tasks.
She had a dog, but her children took care of it. She depended
more and more on her children, who took care of themselves,
and she could not go anywhere without them. She was in pain
No. 20-1269 9
throughout the hearing and, though she stayed for the
duration, she needed to have several questions repeated. The
ALJ ultimately found, however, that objective evidence was
not consistent with Lothridge’s account of the severity and
intensity of her symptoms and impairments.
A vocational expert testified about jobs Lothridge could
perform with her functional limitations. See 20 C.F.R.
§ 416.960(b)(2). With respect to mental limitations, the ALJ
directed the expert to assume a person with Lothridge’s age,
education, and work experience who could:
understand, remember, and carry-out simple
instructions and tasks. She can make judgments
on simple work-related decisions. She can
respond appropriately to occasional
interactions with supervisors and coworkers
[but] should avoid interactions with the general
public. She can respond appropriately to usual
work situations, and she can deal with routine
changes in a routine work setting.
The expert opined that, with these restrictions and her
physical limitations, Lothridge could work as a garment
sorter, mail clerk, or photocopy machine operator. But the
expert added that an employee who needed help leaving for
breaks or lunch could not retain these jobs, and late arrivals
and early departures would not be tolerated. The hypothetical
worker would also need to be on-task at least 90% of a
workday and could be absent only once a month.
Applying the familiar five-step analysis set forth in 20
C.F.R. § 404.1520, the ALJ again found that Lothridge was not
disabled. She concluded that Lothridge suffered from several
10 No. 20-1269
severe mental impairments, including bipolar I disorder,
depressive disorder, mood disorder, anxiety disorder,
obsessive-compulsive disorder, post-traumatic stress
disorder, and attention deficit hyperactivity disorder.
Critically, the ALJ found that these impairments caused
moderate limitations in understanding and applying
information, interacting with others, and maintaining
concentration, persistence and pace. But Lothridge could do
basic arithmetic and had some friends, the ALJ reasoned, and
she still drove, shopped in stores, and cared for herself and
her family. Without further elaboration, the ALJ adopted the
mental residual functional capacity that she had posited to the
vocational expert. From there, the ALJ adopted the vocational
expert’s conclusion that, although these limitations prevented
Lothridge from returning to the jobs she held in the past, there
were still plentiful positions she could perform despite them.
The Appeals Council denied review. Lothridge sought
judicial review, and a different district judge, Judge Van
Bokkelen, affirmed the denial of benefits in December 2019.
II. Analysis
We review an ALJ’s decision to determine if it is supported
by substantial evidence—evidence a reasonable mind might
accept as adequate to support a conclusion. See 42 U.S.C.
§ 405(g); Biestek v. Berryhill,139 S. Ct. 1148, 1154
(2019).
Lothridge’s principal argument is that the ALJ, in
assessing her residual functional capacity, did not account for
her difficulties with concentration, persistence, and pace.
Lothridge points to considerable evidence that she has
problems with concentration and memory and poor coping
skills, that she needs frequent breaks, that she sometimes
cannot get out of bed because she is depressed and fatigued,
No. 20-1269 11
and that she struggles to care for herself. Despite recognizing
some of these challenges, Lothridge says, the ALJ failed to
account for them sufficiently in assessing her functional
limitations. We agree.
The ALJ need not use any “magic words” in formulating
a person’s residual functional capacity, often called an RFC.
Crump v. Saul, 932 F.3d 567, 570(7th Cir. 2019). But an “RFC assessment must incorporate all of the claimant’s limitations supported by the medical record, including even moderate limitations in concentration, persistence, or pace.”Id.
(internal citations omitted). We have repeatedly cautioned that “someone with problems concentrating might not be able to complete a task consistently over the course of a workday, no matter how simple it may be.” Martin v. Saul,950 F.3d 369
,
373–74 (7th Cir. 2020) (collecting cases).
In Lothridge’s case, the residual functional capacity
finding is not supported by substantial evidence in this one
important respect. First, the finding appears inconsistent with
the ALJ’s earlier assessment of Lothridge’s “moderate”
limitations in concentration, persistence, and pace. Under
different circumstances, such an inconsistency may not be
fatal. But at step three of the disability analysis, in addressing
the so-called “listed” disabilities, see 20 C.F.R. Part 404,
Subpart P, App. 1, the ALJ acknowledged that Lothridge only
“sometimes finished what she started,” “got frustrated
easily,” “did not handle stress well,” and had “some
challenges with concentration”—even that she was distressed
during the hearing and needed to have questions repeated.
Yet the ALJ’s step-four finding on her residual functional
capacity a few pages later contained no corresponding
restrictions. It limited Lothridge to “simple instructions and
12 No. 20-1269
tasks with restricted interactions with others” without
addressing her ability to stay on task for a full workday or to
perform at the required speed. Cf. Martin, 950 F.3d at 374
(residual functional capacity that discussed claimant’s ability
to “meet production requirements” and need for flexibility
adequately captured limitations with concentration,
persistence, and pace). The ALJ’s formulation here says
nothing about whether Lothridge is capable of performing
work at a sustained pace over an entire workday. The
vocational expert seemed to recognize as much when she
clarified during the hearing, without prompting from the ALJ,
that a hypothetical worker with Lothridge’s other limitations
would need to remain on task for 90% of the workday to be
employable. The ALJ’s decision, however, did not address
one way or another whether Lothridge could meet those
requirements.
“The law does not require ALJs to use certain words, or to
refrain from using others, to describe the pace at which a
claimant is able to work.” Martin, 950 F.3d at 374. Nevertheless, the residual functional capacity analysis must say enough to enable a review of whether the ALJ considered the totality of a claimant’s limitations. See Crump,932 F.3d at 571
. The ALJ acknowledged here that Lothridge “had difficulty with some areas of understanding and remembering,” but the ALJ also said that further restrictions were not warranted because Lothridge was “generally cooperative” and “able to do simple arithmetic.” This reasoning fails to build the required “logical bridge” between evidence and conclusion. See, e.g., Villano v. Astrue,556 F.3d 558, 562
(7th Cir. 2009). Whether Lothridge is congenial or
able to add sums in a short-term encounter or examination
No. 20-1269 13
has little or no apparent bearing on whether she can maintain
pace or stay on task for an entire workday.
It is not a court’s role to displace an ALJ’s judgment by
making our own findings about the facts, but we cannot
uphold an administrative determination that failed to explain
the outcome adequately. Parker v. Astrue, 597 F.3d 920, 921(7th Cir. 2010). To put it another way, an internally inconsistent opinion by an ALJ is likely to fail to build a logical bridge between the evidence and the result. Dr. Unversaw’s opinion might have supported the limited restrictions, but the ALJ chose to accord it “little to no weight.” The ALJ’s findings about the jobs Lothridge could perform needed to account in a meaningful way for the earlier findings that recognized her difficulties with concentration, completing tasks, and managing stress. See Crump,932 F.3d at 571
. As we read the decision, the ALJ also cherry-picked and overstated the evidence that she cited to support her residual functional capacity finding. The ALJ emphasized, for example, Lothridge’s admissions in a subjective function report that she could drive, care for her children and pets, prepare meals, dress and groom herself, and shop. Yet the ALJ overlooked, or at least did not acknowledge and engage with, the limitations with those tasks that Lothridge included in that same report—such as the pain and fatigue those activities caused her, her need for frequent breaks, and her dependence on her children for daily living activities (including shopping, personal hygiene, and caring for pets). See, e.g., Craft v. Astrue,539 F.3d 668, 680
(7th Cir. 2008) (remanding because ALJ ignored claimant’s qualifications “as to how he carried out [daily living] activities”). What’s more, that report was submitted before Lothridge’s first hearing. Later medical 14 No. 20-1269 records and testimony suggested that her symptoms were becoming worse and that her work-related limitations were increasing. The ALJ also did not reckon with Dr. Ehlich’s documentation of Lothridge’s persistent cognitive difficulties, headaches, fatigue, depression, and anxiety, which were consistent with her fibromyalgia diagnosis. Nor did she mention nurse-practitioner Reynolds’s many assessments that Lothridge had poor concentration, major functional limitations, and a declining ability to care for herself, despite the intensive nature of that treatment relationship. An ALJ need not address every piece of evidence, but she may not ignore entire swaths of it that point toward a finding of disability. Denton v. Astrue,596 F.3d 419, 425
(7th Cir. 2010).
We are not persuaded by the Commissioner’s arguments
in defense of the ALJ’s decision. First, the Commissioner
argues that Lothridge demands a categorical rule to the effect
that an ALJ may never accommodate “moderate” limitations
in concentration, persistence, and pace with only a restriction
to simple instructions and tasks. We have explained already
that there is no such rule. Lothridge certainly emphasizes the
need for more restrictions based on the ALJ’s “moderate”
rating. But she also faults the ALJ for failing to evaluate how
long she could remain on task and perform at speed, despite
finding deficits in those areas.
Second, the Commissioner argues that Lothridge failed to
identify which additional limitations were supported by the
record. As the vocational expert testified, however, for
Lothridge to be employable, she would need to be able to stay
on task for at least 90% of the workday and to have minimal
tardiness and only one absence per month. The ALJ neither
cited evidence that Lothridge could meet these benchmarks
No. 20-1269 15
nor addressed the evidence that she could not. See Winsted v.
Berryhill, 923 F.3d 472, 477(7th Cir. 2019). The Commissioner proposes that the ALJ implicitly rejected that evidence by imposing no limitations beyond restricting Lothridge to simple tasks and decisions. But this attempt to supply a post- hoc rationale for the ALJ’s decisive findings runs contrary to the Chenery doctrine. See SEC v. Chenery Corp.,318 U.S. 80
, 87– 88 (2010); Parker,597 F.3d at 922
. The record also contains evidence of additional limitations—such as a need for frequent breaks and accommodations for poor concentration and focus—that the ALJ was obliged to consider. See Young v. Barnhart,362 F.3d 995
, 1002–03 (7th Cir. 2004). From her
decision, we are unable to ascertain whether she did. A
second remand is therefore needed.
Finally, Lothridge also argues that the ALJ erred by using
her non-compliance with treatment as evidence against the
severity of her symptoms. She argues that the ALJ should
have recognized that her non-compliance could be caused by,
or a symptom of, her mental illnesses. The ALJ discussed the
conservative nature of Lothridge’s treatment and her periodic
non-compliance with it, as directed by Judge Springmann’s
original remand. We do not read the ALJ’s second denial
decision as drawing any negative inferences about
Lothridge’s credibility on that basis. Rather, the ALJ
concluded that the evidence did not support Lothridge’s
testimony and statements about the severity and intensity of
her symptoms “regardless of adherence to treatment.”
Specifically, the ALJ cited “the medical evidence and her
reported activities of daily living” as the reasons she did not
believe Lothridge’s symptoms were disabling. The ALJ’s
discussion of noncompliance is not crystal clear, but we do
16 No. 20-1269
not read it as suffering from this second error that Lothridge
assigns.
In sum, the ALJ denied benefits based on finding a
residual functional capacity that did not account for
Lothridge’s significant mental limitations that the ALJ had
already identified. We therefore VACATE the district court’s
judgment and REMAND with instructions to remand to the
Commissioner for further proceedings consistent with this
opinion.
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