Timothy A. Delong v. ANDREW M. SAUL, Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 6, 2020
Decided February 3, 2021
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL S. SCUDDER, Circuit Judge
No. 19-3259
TIMOTHY A. DELONG,
Plaintiff-Appellant,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:18-cv-02709-DLP-SEB
Doris L. Pryor,
Magistrate Judge.
ORDER
Timothy Delong seeks Social Security disability benefits based on a host of
physical and mental impairments, including memory loss and cognitive decline. An
administrative law judge denied his application, concluding that Delong had
exaggerated his cognitive disabilities and that, despite his impairments, he could
perform light work with some limitations. The district court affirmed. On appeal,
Delong contends that the ALJ erred by crediting a medical expert over an examining
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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psychologist, and by failing to account for his limitations in concentration, persistence,
and pace. We find, however, that the ALJ made no reversible procedural mis-steps and
that her decision was supported by substantial evidence. We therefore affirm.
I
Delong applied in March 2010 for Social Security benefits, alleging disability
dating back to June 2008, based on memory loss and back pain. He previously had
worked in a warehouse for 15 years until it closed. Delong had to show that he became
disabled no later than June 2014, his last date insured. See 20 C.F.R. § 404.130; 42 U.S.C.
§§ 413, 423. The record, however, is not limited to evidence beginning in 2008.
See 20 C.F.R. § 416.945(a)(1) (agency considers all relevant evidence); Pepper v. Colvin,
712 F.3d 351, 364 (7th Cir. 2013).
Delong’s reports of memory loss and cognitive decline began in 2010, when he
visited neurologist Thomas Nukes. Dr. Nukes diagnosed Delong’s memory loss as
“likely secondary to anxiety/depression.” At a follow-up encounter, he noted Delong’s
“good memory during normal conversation” and reiterated that his faulty memory may
be from anxiety or depression, not “actually premorbid.” Without a clear diagnosis, the
doctor decided to refrain from any medications at that time. He conducted a cognitive
test, but he thought that Delong did not “try and apply full effort.”
Around that time, in April 2010, consulting psychologist Robert Blake examined
Delong for the agency. Dr. Blake noted that Delong took care of his autistic son, drove
himself to the appointment, and focused well during their two-hour visit A cognitive
exam revealed no “significant problems with concentration [or] memory” but suggested
trouble with math and abstracting. Dr. Blake also administered a memory test,
however, which showed “low average” auditory memory and “extremely low” visual
memory, visual working memory, immediate memory, and delayed memory. Dr. Blake
opined that Delong’s “ability to work will be moderately affected by his memory
problem.” He also noted, however, that the results of the memory test might have been
“significantly affected” by Delong’s “difficulty understanding directions,” despite the
fact that “they were explained to him … many more times than the test protocol calls
for.” Dr. Blake thought that Delong’s lack of understanding “suggests that his
extremely low score on this item is generally indicative of the level of his problem, even
though it may not at all have to do with visual/spatial memory.”
Also in 2010, another agency psychologist, Dr. Ken Lovko, reviewed Delong’s
records and assessed his mental functioning. Using a check-box form, Dr. Lovko
recorded that Delong had “moderate” limitations in remembering detailed instructions
and in concentration, persistence, and pace. He opined that Delong could “remember

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and carry out simple tasks without special considerations in many work environments,”
and focus “for sufficient periods of time to complete tasks.”
Based on that medical record and an administrative hearing, an ALJ denied
Delong’s application for benefits. But the Appeals Council remanded the decision for
further development of the record.
In 2013, another agency psychologist, Dr. Steven Herman, examined Delong and
noted inconclusive results on cognitive tests. According to Dr. Herman’s records,
Delong sported a “bizarre haircut” and was an “extremely poor historian—unless he
was being asked about his pain … or his functional abilities.” Delong’s responses to test
questions were “similarly bizarre” and indicative of malingering: he could not name a
letter, had “no idea” why we wash clothes, and said Monday follows Tuesday. On a
memory test, he missed 23 questions, a failure rate “significantly greater than chance.”
Because of the “poor effort” and “strong indication of … malingering,” Dr. Herman
could not draw conclusions about Delong’s cognitive functioning “other than that he
appeared to be purposefully attempting to present himself as far more impaired (and
unrealistically so) than he truly is.” He diagnosed malingering, somatization, and
schizoid traits and suggested psychotherapy.
Delong also visited two treating neurologists. The first, Dr. Caryn Vogel, treated
Delong for several years. In 2013 she observed normal affect but impaired short-term
memory and concentration. Despite Delong’s continued complaints about declining
memory and concentration, Dr. Vogel repeatedly observed normal cognitive
functioning and thought content. Delong consistently refused recommendations for
psychological studies or treatment.
In 2014, Dr. Nirav Bigelow (the second neurologist) assessed Delong for both
cognitive ability and malingering. During the cognitive test, Delong’s “attention was
adequate” and he “attempted all tasks,” though Dr. Bigelow had to repeat the
instructions multiple times. Dr. Bigelow noted that Delong “appeared to be
exaggerating symptoms” and that he had to administer one part “three different times
due to fluctuations in [Delong’s] responses to simple questions.” The results showed
that Delong’s attention, concentration, visual memory, working memory, and long-term
recall were “significantly impaired.” The assessment on possible malingering, however,
resulted in a score that was “far above the recommended cutoff score … for the
identification of suspected malingering.” It suggested that Delong’s reports of
“psychosis, low intelligence, and amnesia appear[] to be dishonest and exaggerated.”
Dr. Bigelow warned that “the results of this evaluation should be interpreted with

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caution.” He nonetheless diagnosed Delong with a mild intellectual disability,
depression, symptoms of schizophrenia, and anxiety.
In 2014, the ALJ denied Delong’s application for a second time, and the Appeals
Council denied his request for review. Delong appealed, and the district court vacated
the decision, ruling that the ALJ failed to give a good reason for discounting Dr. Blake’s
opinion, and did not properly instruct the vocational expert about Delong’s moderate
limitations in concentration, persistence, and pace.
A different ALJ presided on remand. At a hearing in 2018, Delong testified that
he received no mental health treatment or counseling during the relevant disability
period (2008 to 2014). Though he could not remember the names of his medications, he
knew that he took an antidepressant three times a day and that he was on medication
for his cholesterol and restless leg syndrome. He testified that he drives his son to
school every day for 30 minutes, can otherwise sit for a few minutes at a time, and has
no problems standing or lifting up to 10 pounds. He described problems dealing with
others and remembering names and numbers.
A licensed psychologist, Dr. James Brooks, testified at the hearing as an impartial
medical expert. After reviewing the full record, Dr. Brooks concluded that, although
Dr. Blake’s 2010 opinion described “moderate possible effects on [Delong’s] ability to do
work,” the balance of the record did not support that assessment. He highlighted the
evidence of malingering from Dr. Herman, Dr. Vogel, and Dr. Bigelow. When evidence
of malingering exists, as it did in Dr. Bigelow’s case, Dr. Brooks testified that one must
refrain from any interpretation “because the results are considered to be invalid.”
Dr. Brooks also noted that the record contained no evidence of an actual cognitive
disorder, and that the extent of malingering “makes it difficult to judge the presence of
any actual psychiatric disorder.” He concluded that Delong had mild limitations in
concentration, persistence, and pace and in understanding, remembering, and applying
information, and moderate limitations in relating to others and in adapting in a work
setting. He opined that Delong could follow simple directions but should have limited
contact with coworkers and none with the public.
The ALJ then asked a vocational expert to consider a hypothetical person with
Delong’s age, education, work experience, and limitations on mental functioning, with
the following additional restrictions: take breaks in the morning, at lunch, and in the
afternoon; perform simple, routine tasks, requiring no more than short, simple,
repetitive instructions; sustain concentration for two hours at a time, eight hours in a
workday; persist and maintain pace for two hours at a time, eight hours in a workday;
make simple work-related decisions with few workplace changes; have no contact with

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the general public; and have no more than occasional contact with supervisors and
coworkers. The expert opined that this person could not perform Delong’s past work in
a warehouse, but could work as a merchandise marker, routing clerk, or collator.
Applying the five-step analysis, see 20 C.F.R. § 404.1520(a), the ALJ determined
that Delong’s depression, anxiety, personality disorder, borderline intellectual
functioning, and degenerative disc disease were severe impairments but that none met
the criteria of a listing. See C.F.R. Pt. 404, Subpt. P, App. 1. In assessing Delong’s ability
to work, the ALJ gave some weight (unspecified) to Dr. Blake’s 2010 opinion that
Delong has moderate problems with mental math and abstracting, but discounted his
assessment of Delong’s “extremely low memory” because Dr. Blake did not have the
benefit of the full record and did not adequately consider Delong’s malingering during
the memory test. The ALJ afforded “great weight” to Dr. Brooks’s opinion because he
reviewed the complete record, heard Delong’s testimony, “explained discrepancies in
the record,” and properly “identified flaws pertaining to other relevant medical
opinions.” The ALJ went beyond Dr. Brooks’s recommended functional limitations,
however, because she found that Delong was “better suited for simple, repetitive, and
routine tasks.” She gave “some weight” to the agency’s psychological consultants,
including Dr. Lovko, and to a report from Delong’s wife. And she credited
Dr. Bigelow’s 2013 report because it contained “pertinent evidence” and was
“consistent” with the restrictions warranted by the record.
The ALJ then determined that Delong has the residual functional capacity (RFC)
to perform light work with the limitations noted above, and that, although Delong
could not perform any past relevant work, he could do other jobs in the national
economy. The ALJ was skeptical of Delong’s claims of cognitive impairments and
memory loss, noting several times that his mental diagnoses were inconclusive because
of his poor effort and malingering. Even so, she accounted for “subjective symptoms of
memory loss, diminished comprehension, and occasional disorientation” when
assigning a “more restrictive” RFC than the one Dr. Brooks recommended. In a
thorough opinion, the district court affirmed the denial of benefits.
II
We review the ALJ’s decision to ensure that it is supported by substantial
evidence, understood as evidence that a reasonable mind might accept as adequate to
support a conclusion. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
A
Delong argues that the ALJ failed to provide good reasons for giving more
weight to the opinion of Dr. Brooks, the non-examining medical expert, than to

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Dr. Blake’s 2010 opinion that Delong had “severe” visual processing and memory
problems that would “moderately affect” his ability to work. As a result, he argues,
there is no “logical and accurate bridge” between the evidence and the ALJ’s
conclusion.
We see no such flaw in the ALJ’s opinion. She explained cogently why she was
disregarding the opinion of her agency’s examining physician, Dr. Blake. See Beardsley
v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014); see also 20 C.F.R. § 404.1527(c)(1) (examining
physician’s opinion generally given more weight than non-examining). An ALJ is “not
required to credit the agency’s examining physician in the face of a contrary opinion
from a later reviewer or other compelling evidence.” Beardsley, 758 F.3d at 839. This ALJ
discounted Dr. Blake’s opinion for the compelling reason that it “failed to adequately
consider the claimant’s malingering presentation.” The ALJ documented that finding
with extensive references to the record. She buttressed that finding by noting that
Dr. Blake did not have the benefit of the full record. The record supports her: Dr. Blake
examined Delong only once, in 2010, whereas Dr. Brooks “reviewed [the] complete
record” and heard Delong’s testimony firsthand. See Stage v. Colvin, 812 F.3d 1121, 1125
(7th Cir. 2016) (ALJ should not rely on outdated opinion).
Further, Delong is incorrect that the ALJ gave the same faulty rationale for
discounting Dr. Blake’s opinion that the district court “previously deemed improper
and worthy of remand.” In the vacated decision, the first ALJ deemed Dr. Blake’s test
results altogether invalid. This time, in contrast, the ALJ correctly explained that
Dr. Blake’s examination results may not have accurately reflected Delong’s memory
functioning. That tracks Dr. Blake’s explanation of the results, which, he said, “may not
at all have to do with visual/spatial memory.” (Notably, the ALJ accepted Dr. Blake’s
assessment of Delong’s other cognitive abilities, including his difficulty with mental
math and abstraction.) Beyond that, the second ALJ provided additional reasons that
were absent from the vacated decision. She explained that Dr. Blake’s one visit with
Delong provided only a “limited” view of the medical history. (Indeed, as the district
court observed, “a good percentage of the medical evidence … came after Dr. Blake’s
opinion.”) And the ALJ highlighted that Dr. Blake’s failure to consider whether Delong
was malingering during his testing.
Delong tries to deal with the malingering problem by contending that the ALJ
overlooked evidence that the malingering was itself the product of his mental
impairments. He seems to argue that Dr. Blake believed that Delong’s inability to follow
directions resulted from a psychological problem, and that the ALJ “ignored”
Dr. Herman and Dr. Bigelow’s records, which allegedly corroborate that opinion. But
the ALJ was not required to read that much into Dr. Blake’s statement that Delong’s

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inability to follow directions was “indicative of his problem.” And although the
examining doctors suggested that his malingering might be the product of a
psychological disorder, the ALJ did not err by refusing to follow up further on this
possibility, nor did she “cherry pick” the evidence. No doctor opined that a
psychological disorder caused the malingering. And, as the ALJ noted, there were no
records “related to inpatient admissions for psychiatric instability” or “outpatient
counseling to regulate … emotions or build coping skills.” Further, when formulating
the RFC, the ALJ expressly considered “impairments that may not affect cognition as
much but would affect performance, for example, depression, anxiety, and personality
disorder.” In any case, Delong’s argument about a psychological cause for his
malingering does not undermine the ALJ’s conclusion that he was malingering and
therefore does not have the severe memory problems on which his claim for benefits is
largely based.
B
Delong next argues that the ALJ’s hypothetical questions to the vocational expert
and the related RFC determination did not address his deficits in concentration,
persistence, and pace. He contends that the ALJ failed to account for the 2010
“checkbox” opinion of Dr. Lovko, the agency’s psychologist, that Delong had a
moderate limitation in that area. The omission is especially egregious, Delong contends,
because the district court’s 2016 remand order directed the ALJ to inform the vocational
expert about the moderate limitation.
Delong fails to recognize, however, that on remand, the new ALJ assessed a
mild—not moderate—limitation in concentration, persistence, and pace. (She was not
bound by the earlier ALJ’s finding in this respect.) In making that determination, the
ALJ did not ignore Dr. Lovko’s evaluation; she gave it “some weight.” But she gave
“great weight” to Dr. Brooks’s opinion, which was based on the entire record, including
evidence developed after 2010. Moreover, substantial evidence supports the assessment:
As the ALJ explained, Dr. Brooks assessed only a “mild limitation” in concentration,
Dr. Herman noted adequate attention during testing, and Delong’s “attention and
concentration were not severely impaired when presenting for routine medical
appointments.” Though Delong “struggled with mental status exercises,” the ALJ
observed that “he demonstrated the concentration and focus to complete simple tasks
with reasonable pace and persistence.” She also noted that he “remained attentive to the
interview process” and has the attention to drive his son to school. Because the ALJ
reasonably concluded that Delong has a mild limitation in this area, the ALJ did not err in
failing to account for moderate limitations in the RFC.

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Furthermore, both the RFC and the questions posed to the vocational expert
accounted for mild limitations in concentration, persistence, and pace. See Moreno v.
Berryhill, 882 F.3d 722, 730 (7th Cir. 2018) (ALJ must explicitly account for all claimant’s
limitations in hypothetical, including those in concentration, persistence, or pace). The
RFC states that Delong requires breaks in the morning, midday, and afternoon; could
maintain pace and sustain concentration for just two hours at a time and on only short,
simple, repetitive tasks; and must avoid “workplace changes” to distract him. Delong
argues that none of those restrictions address his limited concentration or account for
Dr. Lovko’s opinion; specifically, he asks for more breaks and a certain amount of time
off task. But even if the record could support such limitations, there is nothing that
compels them. The ALJ’s restrictions go beyond what Dr. Lovko suggested for a
moderate limitation in this area. (He suggested Delong could carry out any simple tasks
without special considerations and stated, vaguely, that Delong could attend to tasks
for “sufficient periods of time.”) And, even though the vocational expert testified that
non-impaired workers can sustain focus for two hours, that point does not help Delong:
Non-impaired workers can sustain focus for at least two hours, whereas the RFC limits
Delong’s sustained attention to two hours at a time.
We AFFIRM the judgment of the district court.

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