Joshua Lanigan v. Nancy A. Berryhill
2017 U.S. App. LEXIS 13526
| 7th Cir. | 2017Background
- Lanigan injured his back at work in 2009, later suffered a 2009 neck injury and was diagnosed with Type 2 diabetes in 2011; he has ongoing mental-health problems (depression, anxiety, bipolar features, dissociation/blackouts) and limited work history since 2009.
- He applied for SSI and DIB in March 2012; an ALJ found severe physical and mental impairments but denied benefits; Appeals Council denied review and the district court affirmed.
- Treating and examining records show frequent psychiatric treatment, suicidal attempts, involuntary hospitalization in 2013, recurrent blackout episodes, and counselor notes documenting concentration problems; two state-agency psychologists found moderate mental limitations.
- At the December 2013 hearing Lanigan testified he worked part-time (~5–22 hours/week) at a retail store with frequent unscheduled breaks (3–5 breaks per shift, sometimes ~20 minutes) and required coworker support for customer interactions.
- The ALJ adopted an RFC limiting Lanigan to low-stress, routine light work with only occasional interaction, occasional stooping/crouching/kneeling/crawling, and being off-task up to 10% of the workday; a vocational expert identified several jobs compatible with that RFC but said >10% off-task, need to leave workstation, zero interaction, or missing work >2/month would preclude employment.
- The Seventh Circuit found the ALJ’s RFC and hypothetical to the vocational expert lacked substantial evidentiary support (no logical bridge to the 10% off-task limit; improper weighting/ignoring of treating counselor records; failure to account for moderate deficiencies in concentration, persistence, and pace) and reversed and remanded.
Issues
| Issue | Lanigan's Argument | Commissioner’s Argument | Held |
|---|---|---|---|
| Whether the ALJ’s RFC (including "off-task up to 10%") was supported by substantial evidence | ALJ had no basis for the 10% figure given Lanigan’s testimony and treating records showing frequent unscheduled breaks and concentration problems | State-agency psychologists’ opinions support moderate limitations and the ALJ’s RFC | RFC unsupported: ALJ failed to build a logical bridge to 10% and improperly downplayed treating counselor’s more recent records; remand required |
| Whether the ALJ adequately accounted for moderate limitations in concentration, persistence, and pace in the vocational hypothetical | Hypothetical failed to capture deficiencies in concentration/persistence/pace and so misled the vocational expert | Hypothetical (simple, routine tasks; off-task allowance) sufficiently conveyed limitations | Held for Lanigan: hypothetical did not adequately account for these limitations and no exception (expert familiarity or different terminology) applied |
| Whether part‑time, accommodated work supports ALJ’s finding of ability to sustain full-time competitive employment | Part-time, short-tenure, accommodated work (six weeks) does not show capacity for full-time work; employer accommodations and claimant’s testimony undermine ALJ’s inference | Commissioner relied on work activity and state consultants to justify RFC | Court rejected ALJ’s inference from brief, accommodated part-time work to full-time capacity |
| Whether Lanigan waived challenge by not objecting to VE testimony at hearing | Challenge is to the adequacy of the RFC/hypothetical, not to the VE’s testimony; no forfeiture | Commissioner cites Donahue requiring contemporaneous objection to VE testimony | Court held no waiver: Lanigan challenges the ALJ’s RFC basis, not the VE’s credentials or answers |
Key Cases Cited
- O’Connor–Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010) (vocational hypothetical must account for concentration, persistence, and pace or an exception must apply)
- Beardsley v. Colvin, 758 F.3d 834 (7th Cir. 2014) (ALJ must build an accurate, logical bridge between evidence and conclusion)
- Jelinek v. Astrue, 662 F.3d 805 (7th Cir. 2011) (brief part-time work does not demonstrate ability to sustain full-time employment)
- Larson v. Astrue, 615 F.3d 744 (7th Cir. 2010) (distinguishing household activities/part-time work from full-time employment; employer accommodations limit probative value)
- Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014) (appellate standard and limitations of simple, routine task descriptions to capture pace deficits)
- Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000) (treating source opinions generally entitled to more weight; significance of longitudinal treating records)