Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
TRISTAN D.1, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 4:25-cv-00023-TWP-KMB
)
FRANK BISIGNANO, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION ON COMPLAINT FOR JUDICIAL REVIEW
Plaintiff Tristan D. applied for disability benefits and supplemental security income from
the Social Security Administration ("SSA") on August 23, 2022, alleging an onset date of July 12,
2022. [Dkt. 9-2 at 12.] Administrative Law Judge Cristen Meadows (the "ALJ") issued a decision
on February 1, 2024, concluding that Tristan was not disabled and therefore not entitled to receive
the requested benefits. [Dkt. 9-2 at 23.] 	T h e Appeals Council denied Tristan's request for review
on December 6, 2024. 	[Dkt. 9-2 at 2.] 	On February 7, 2025, Tristan timely filed this civil action
asking the Court to review the denial of benefits according to 42 U.S.C. § 405(g) and 28 U.S.C. §
1361. 	[Dkt. 1.]
This matter was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Fed.
R. Civ. P. 72(b) for a Report and Recommendation as to the appropriate disposition of the pending
1 To protect the privacy interests of claimants for Social Security benefits, and consistent with the
recommendation 	of 	the 	Court 	Administration 	and 	Case 	Management 	Committee 	of 	the
Administrative Office of the United States Courts, the Southern District of Indiana has opted to
use only the first names and last initials of non-governmental parties in its Social Security judicial
review opinion.
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motion. 	For the reasons detailed herein, the Magistrate Judge recommends that the District Judge
REVERSE and REMAND the Commissioner's decision finding that Tristan was not disabled.
I. STANDARD OF REVIEW
"The Social Security Administration (SSA) provides benefits to individuals who cannot
obtain work because of a physical or mental disability." Biestek v. Berryhill, 139 S. Ct. 1148, 1151
(2019). 	Disability is the inability "to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months."
Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018) (citing 42 U.S.C. § 423(d)(1)(A)).
When an applicant appeals an adverse benefits decision, this Court's role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ's decision. 	Stephens, 888 F.3d at 327. 	"[S]ubstantial evidence" is "evidence that 'a
reasonable mind might accept as adequate to support a conclusion.'" Zoch v. Saul, 981 F.3d 597,
601 (7th Cir. 2020) (quoting Biestek, 139 S. Ct. at 1154). 	"Although this Court reviews the record
as a whole, it cannot substitute its own judgment for that of the SSA by reevaluating the facts, or
reweighing the evidence to decide whether a claimant is in fact disabled." 	Stephens, 888 F.3d at
327. 	Reviewing courts also "do not decide questions of credibility, deferring instead to the ALJ's
conclusions unless 'patently wrong.'" 	Zoch, 981 F.3d at 601 (quoting Summers v. Berryhill, 864
F.3d 523, 528 (7th Cir. 2017)). 	"[E]ven under deferential standard of review for social security
disability cases, an [ALJ] must provide a logical bridge between the evidence and [the]
conclusions." 	Jarnutowski v. Kijakazi, 48 F.4th 769, 773 (7th Cir. 2022) (internal quotations
omitted).
The SSA applies a five-step evaluation to determine whether the claimant is disabled.
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Stephens, 888 F.3d at 327 (citing 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4)). The
ALJ must evaluate the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has
a severe impairment; (3) whether the claimant's impairment meets or equals one
of the impairments listed by the [Commissioner]; (4) whether the claimant can
perform [the claimant's] past work; and (5) whether the claimant is capable of
performing work in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000), as amended (Dec. 13, 2000) (citations
omitted). 	"If a claimant satisfies steps one, two, and three, [the claimant] will automatically be
found disabled. 	If a claimant satisfies steps one and two, but not three, then [the claimant] must
satisfy step four. 	Once step four is satisfied, the burden shifts to the SSA to establish that the
claimant is capable of performing work in the national economy." 	Knight v. Chater, 55 F.3d 309,
313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant's residual
functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable
impairments, even those that are not severe." 	Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ "may not dismiss a line of evidence contrary to the ruling." Id. 	The ALJ uses
the RFC at Step Four to determine whether the claimant can perform the claimant's own past
relevant work and if not, at Step Five to determine whether the claimant can perform other work.
See 20 C.F.R. § 404.1520(a)(4)(iv), (v).
If the ALJ committed no legal error and substantial evidence exists to support the ALJ's
decision, the Court must affirm the denial of benefits. 	Stephens, 888 F.3d at 327. 	When an ALJ's
decision does not apply the correct legal standard, a remand for further proceedings is usually the
appropriate remedy. 	Karr v. Saul, 989 F.3d 508, 513 (7th Cir. 2021). 	Typically, a remand is also
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appropriate when the decision is not supported by substantial evidence. 	Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 355 (7th Cir. 2005).
II. BACKGROUND2
Tristan was 55 years old when he applied for disability benefits. 	[Dkt. 9-3 at 3.]
He previously worked as a Direct Skill Professional. 	[Dkt. 9-6 at 12.]
The ALJ 	followed 	the five-step 	evaluation 	set 	forth 	by 	SSA in 	20 C.F.R. 	§
404.1520(a)(4) and concluded that Tristan was not disabled. 	Specifically, the ALJ found as
follows:
• 	At Step One, Tristan has not engaged in substantial gainful activity since July 12, 2022, the
alleged onset date. [Dkt. 9-2 at 15.]
• 	At Step Two, Tristan has the following severe impairments: degenerative disc disease,
scoliosis, major depression disorder, generalized anxiety disorder, and post-traumatic
stress disorder. [Id.]
• 	At Step Three, Tristan does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments. [Id.]
• 	After Step Three but before Step Four, Tristan has the RFC "to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) except he is further limited to avoiding
all exposure to hazards of unprotected heights or dangerous moving machinery; never
driving commercially; performing low stress jobs, defined as jobs with only occasional
decision making required and only occasional changes in the work setting or duties;
never performing work requiring a specific production rate, such as assembly line work
or work that requires hourly quotas; occasionally having brief interaction with the
general public, coworkers, or supervisors; and never performing joint tasks with no over
the shoulder supervision." [Id. at 17.]
• 	At Step Four, Tristan is unable to perform any past relevant work. [Id. at 21.]
• 	At Step Five, relying on testimony from the vocational expert ("VE"), and considering
Tristan's age, education, and RFC, there were jobs that existed in the national economy
that Tristan could have performed through the date of the decision, including a kitchen
helper, counter supply worker, and house attendant cleaner. [Id. at 22.]
2 The relevant evidence of record is set forth in the Parties' briefs and need not be repeated here.
Specific facts relevant to the disposition of this case are discussed below as necessary.
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III. DISCUSSION
Tristan raises four issues with several subparts for the Court's review: (1) the ALJ erred by
rejecting well-supported opinions of the examining medical sources; (2) the ALJ erred in her
consideration of the state agency opinions; (3) the RFC fails to properly accommodate all of
Plaintiff's conditions; and (4) the subjective symptom analysis was patently wrong because the
ALJ improperly relied on her own lay determination of Plaintiff's symptoms. 	[Dkt. 12 at 1-2.]
The undersigned begins with Tristan’s argument that the RFC analysis does not address evidence
bearing on his ability to remain on task and maintain regular attendance, which the undersigned
considers to be dispositive.
A. 	Whether the RFC Properly Accommodates All of Tristen's Conditions
Tristan argues that the ALJ ignored abnormal findings that undermine the RFC analysis,
particularly evidence of difficulties with concentration, persistence, and pace that suggest he
would be off task for at least part of the workday. [Dkt. 12 at 18.] In support, Tristan points to
opinions of his treating physician since December 2022, Dr. Boersma, who opined that Tristan
would be off task approximately 10% of a typical workday and would miss an average of four
days of work per month. [Id.; dkt. 9-7 at 112.] Tristan also cites treatment notes from consulting
phycologist Dr. Mayle reflecting that Tristan's recent memory was marginal, [dkt. 9-7 at 94], as
well as Tristan's hearing testimony that his daily pain is a six or seven out of ten and that he
sometimes has to stop and leave grocery stores due to panic attacks, [dkt. 9-2 at 83].
Most significantly, Tristan relies on the hearing testimony of the vocational expert. [Dkt.
12 at 18.] At the hearing, the ALJ asked whether jobs would be available for an individual who
would be off task 20% of the workday or absent from work two days per month. [Dkt. 9-2 at 89.]
The vocational expert testified that no competitive employment would be available under either
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scenario. 	[Id.] 	Tristan contends that the ALJ committed reversible error by failing to address
this vocational testimony in the RFC determination and by failing to address off-task time or
absenteeism at all in the written decision. [Dkt. 12 at 19.]
In response, the Commissioner argues that the ALJ reasonably evaluated the medical
evidence and found that limitations related to off-task behavior or absenteeism were inconsistent
with the overall severity of Plaintiff’s mental impairments. [Dkt. 14 at 16.] The Commissioner
contends that, having rejected the evidence supporting such limitations, the ALJ was not required
to address evidence regarding off-task or absenteeism. [Id.] With respect to Tristan’s argument
that the ALJ should have addressed the vocational expert’s responses to the ALJ’s hypotheticals,
the Commissioner relies on Catherine D. v. O’Malley, 2024 WL 4002574, 2024 U.S. Dist. LEXIS
156312 (S.D. Ind. Aug. 30, 2024), for the proposition that posing hypotheticals to a vocational
expert does not obligate the ALJ to make findings on every domain referenced in those
hypotheticals. [Id.]
In reply, Tristan reiterates that despite the evidence he presented, the ALJ never addressed
whether he could meet on-task or attendance requirements necessary for sustained employment.
[Dkt. 15 at 10.] Tristan argues that this omission is reversible error because his mental limitations
prevent him from sustaining work activities over time, as required to remain employed. [Id.]
The RFC is "the individual's maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis," meaning eight hours per day for
five days per week. SSR 96-8p, 1996 SSR LEXIS 5, 1996 WL 374184, at *2 (July 2, 1996). An
ALJ need not use any "magic words" when formulating a claimant's RFC. Crump v. Saul, 932
F.3d 567, 570 (7th Cir. 2019). However, "the ALJ must explicitly account for all of a claimant's
limitations in [his] hypothetical [to the vocational expert], including limitations in concentration,
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persistence, or pace, unless the vocational expert has independently reviewed the medical record."
DeCamp v. Berryhill, 916 F.3d 671, 675 (7th Cir. 2019). The Seventh Circuit Court of Appeals
has 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 Tristan's case, the RFC is not supported by substantial evidence in this one important
respect. The record contains several indications that Tristan's mental health symptoms interfere
with his concentration, persistence, and pace ("CPP"). For example, Dr. Mayle's treatment notes
reflect deficits in recent memory. 	[Dkt. 9-7 at 94.] 	Tristan also testified that he experiences
immense pain on a daily basis, he constantly has to readjust himself while sitting, spends most of
his days lying in bed, and that panic attacks sometimes require him to stop and leave grocery
stores. 	[Dkt. 9-2 at 81-84.] 	Regarding CPP, the ALJ found that Tristan has "mild difficulties
based on his admitted ability manage his personal finances, drive, and watch television for
extended periods." [Dkt. 9-2 at 16.]
Though the ALJ fully discounted his opinions, Tristan's treating physician since 2022, Dr.
Boersma, opined that Tristan would be off task approximately 10% of a typical workday and
would miss an average of four days of work per month. [Dkt. 9-7 at 112.] The ALJ discounted
Dr. Boersma's opinion because "[w]hile the record does support a degree of limitation with social
interaction and the ability to adapt, there is no support in the treatment record, other than
subjective allegations for a need for time off task or missed workdays, particularly if he is limited
to low stress environments, no production rates or hourly quotas, and only occasional and brief
interaction with others." [Dkt. 9-2 at 21.]
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At the administrative hearing, the ALJ specifically asked the vocational expert whether
competitive employment would be available for an individual who would be off task 20% of the
workday or absent from work two days per month. 	[Dkt. 9-2 at 89.] 	The vocational expert
testified that no jobs would be available under either scenario. [Id.] Despite that questioning, the
ALJ's decision does not specifically address off-task time in any manner at any point in the
decision. Under these circumstances, the Court agrees with Tristan that the ALJ erred by failing
to explicitly consider off-task time whatsoever. Lothridge v. Saul, 984 F.3d 1227, 1234 (7th Cir.
2021) ("As the vocational expert testified, however, for [Claimant] 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 [Claimant] could meet these
benchmarks nor addressed the evidence that she could not."); Crump v. Saul, 932 F.3d 567, 570
(7th Cir. 2019) ("The VE opined that a person so limited would lack the functional capacity to
sustain any employment. But the ALJ failed to incorporate this opinion anywhere in the RFC,
leaving the RFC altogether uninformed by considerations of off-task time or unplanned leave.").
Here, as in other cases, it "appears the ALJ had reason to believe Plaintiff might be off
task at least [20]% of the time, or there would be no reason to have posed [the] hypothetical to
the VE." Gregory W. v. Saul, No. 19 CV 6848, 2020 U.S. Dist. LEXIS 148754, 2020 WL
4816075, at *5 (N.D. Ill. Aug. 18, 2020); see also Drew T. v. Kijakazi, No. 1:21-cv-1844-MG-
JRS, 2022 WL 4591456 at *21(S.D. Ind. Sept. 30, 2022) ("The ALJ seemed to recognize
[Claimant's] CPP challenges with respect to staying on task when, in formulating an additional
hypothetical for the VE, the ALJ incorporated the additional limitation of a person being off task
(20% of the workday)…"). Yet, in this case, the ALJ's decision neglected to offer any analysis
of off-task time, meaning that there is no logical bridge to follow. Jacob D. v. Kililo Kijakazi,
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No. 20-cv-0554, 2021 WL 3674610, at *12-15 (N.D. Ill. Aug. 19, 2021) ("[T]he ALJ included
no off-task discussion or finding or in her decision . . . . This is error, as there is no logical bridge
to follow to any conclusion about off-task time.").
By itself, the ALJ's decision to discount Dr. Boersma's views might not be cause for
vacating the decision, "but when combined with the ALJ's disregard of the highly relevant opinion
of the VE—that an individual with [Tristan's] limitations who needed to be off-task 20% of the
time was not employable—the resulting RFC formulation does not hold up." 	See Crump, 932
F.3d at 570; cf. Spring W. v. Saul, No. 20 C 1864, 2021 U.S. Dist. LEXIS 115055, 2021 WL
2529615, at *6 n.5 (N.D. Ill. June 21, 2021) ("[N]o doctor opined that [Plaintiff] would require
an off-task time limitation, so [Plaintiff's] argument that the ALJ should have included an off-
task time limitation, lacks merit."). The record also contains evidence of additional limitations—
such as memory issues and pervasive panic attacks—that the ALJ was obliged to consider
regarding potential absenteeism. See Young v. Barnhart, 362 F.3d 995, 1002-03 (7th Cir.
2004). From the ALJ's decision, we are unable to ascertain whether she did. The undersigned
believes that this requires remand.
The Commissioner’s reliance on Catherine D. v. O’Malley, 2024 WL 4002574 (S.D. Ind.
Aug. 30, 2024), is unavailing. In Catherine D., the ALJ affirmatively found that the claimant did
not have off-task or attendance limitations, and the vocational hypotheticals at issue were not tied
to unresolved functional findings in the RFC. Id. at *26. Here, by contrast, the ALJ raised off-
task behavior and absenteeism at the hearing, elicited testimony that those limitations would be
work-preclusive, but then failed to make any determination as to whether Tristan could meet
those requirements. 	That analytical gap is precisely what the Seventh Circuit found to be
reversible error in Lothridge, where the ALJ posed hypotheticals involving off-task time and
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absences but failed to confront the vocational expert’s responses in the RFC analysis. 984 F.3d
at 1233.
The Court is "unable to trace the reasoning as to why the ALJ ultimately hypothesized an
absenteeism accommodation to the VE but did not include such analysis" into her decision. Drew
T., 2022 WL 4591456, at *20-21. Evidence in the record from Tristan's treating physician, his
consulting physician, and his own subjective testimony cast serious doubts on Tristan's ability to
sustain employment for forty hours per week and five days per week. 	Indeed, the vocational
expert’s testimony established that even modest limitations in off-task behavior or absenteeism
would be work-preclusive, but the ALJ’s decision contains no finding regarding Tristan’s ability
to remain on task for a full workday or to maintain regular attendance. Without such findings,
the Court cannot trace the path of the ALJ’s reasoning or determine whether the RFC adequately
captures Tristan’s mental limitations. See Lothridge, 984 F.3d at 1234; Crump, 932 F.3d at 570.
Accordingly, the undersigned believes that remand is required so that the ALJ may explicitly
evaluate and explain whether Tristan can meet the basic on-task and attendance requirements of
competitive employment, and, if so, how that conclusion is supported by the record.
B. 	Other Arguments
The Parties disagree about the other issues raised by Tristen in his opening brief. Having
found that it is necessary to recommend remand for the reasons detailed above, the undersigned
declines to substantively address the Parties' remaining arguments. Either Party may raise those
arguments on remand if appropriate to do so.
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IV. CONCLUSION
For the reasons detailed herein, the Magistrate Judge RECOMMENDS that the District
Judge REVERSE and REMAND the Commissioner's decision finding that Tristan was not
disabled. Any objections to this Report and Recommendation must be filed in accordance with 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P 72(b). The failure to file objections within 14 days of this
Order will constitute a waiver of subsequent review absent a showing of good cause for that failure.
Counsel should not anticipate any extension of this deadline or any other related briefing
deadlines.
So RECOMMENDED.
Distribution:
All ECF-registered counsel of record via email
Date: 1/28/2026
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