Jesse Streikus v. MARTIN J. O’MALLEY, Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 6, 2023
Decided March 7, 2024
Before
JOEL M. FLAUM, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2484
JESSE STREIKUS,
Plaintiff-Appellant,
v.
MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, Fort Wayne Division.
No. 1:20-CV-366
Michael G. Gotsch, Sr.,
Magistrate Judge.
O R D E R
Jesse Streikus, who was in a car accident, unsuccessfully applied for disability
benefits. Because the Administrative Law Judge (“ALJ”) properly accounted for
Streikus’s limitations in concentration, persistence, and pace in determining the residual
functional capacity (“RFC”) and in the hypothetical posed to the vocational expert, we
affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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I. F ACTUAL B ACKGROUND AND PROCEDURAL HISTORY
A.
On September 23, 2017, Streikus was involved in a car accident in which he
sustained a minor head injury and possible concussion. Following the accident, Streikus
reported severe headaches that lasted several hours and prevented him from getting
things done. Streikus also complained of worsening memory and slowing in mental
processes. While MRIs of Streikus’s brain were unremarkable, doctors diagnosed
trigeminal neuralgia (a chronic pain disorder) and post-concussion syndrome. Over the
next couple of months, Streikus was treated with various prescription medications as
well as nerve blocks. His treating neurologist, Seth Cahn, M.D., also referred Streikus to
a neuropsychologist based on concerns that his post-concussion symptoms were
aggravated by his preexisting depression, anxiety, and panic attacks.
In December 2017, Streikus was evaluated by a neuropsychologist, Wendell
Rohrer, Ph.D., who could not quantify any significant cognitive struggles for Streikus.
Dr. Rohrer noted that test results indicated Streikus was either not putting forth enough
effort or was purposefully magnifying his difficulties. Dr. Rohrer also opined that
Streikus had a “very strong overall recovery capability,” but Streikus’s extreme decline
in his activities of daily living post-accident “present[ed] a very complicated recovery
course.”
The following month, January 2018, assailants attacked Streikus with baseball
bats. Although he was left with a golf ball-sized hematoma on the back of his head,
medical imaging showed no abnormalities. In February 2018, Dr. Cahn spoke with
Streikus about the January assault and the results of the neuropsychological assessment.
They discussed the fact that Streikus’s poor effort on the neuropsychological assessment
could be due to Streikus’s “honest belief” that he was cognitively worse-functioning
than he actually was, or that he had become “hypersensitized to his symptoms,
resulting in exaggerated debility.” Dr. Cahn advised Streikus that pharmacologic
treatment alone was not likely to have much of a benefit for him as compared to
combination therapy, including counseling and stress management techniques.
Dr. Cahn referred Streikus to the Bowen Center for psychiatric evaluation. There,
Streikus reported that following the January assault, he had trouble understanding. On
examination, however, Streikus exhibited fair judgment and insight, and good intellect
and concentration.

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No. 22-2484 Page 3
The following month, Streikus was again assaulted, sustaining multiple punches
and kicks to the head, back, and abdomen. While Streikus had a small scalp hematoma
and was not sure if he lost consciousness, imaging of his head again showed no
abnormalities. On examination, Streikus was alert and displayed normal speech and
coordination; he was ultimately discharged.
Streikus returned to Dr. Cahn in June 2018, complaining of daily headaches that
worsened throughout the day. Dr. Cahn advised Streikus do something out of the
house, including either a low-pain part-time job or volunteer work. Dr. Cahn also
referred Streikus to the Diamond Headache Clinic in Chicago.
Three months later, in September 2018, Streikus attended his initial evaluation
with the clinic. Streikus was administered intravenous pain medication, advised to keep
a headache calendar and take prescription medications, and to follow certain sleep,
exercise, and diet recommendations.
Throughout 2018, Streikus visited the emergency department numerous times
for issues related to his headaches. Streikus also continued his treatment at the Bowen
Center through August 2019. During this time, Streikus’s depression and anxiety were
largely improved or under control. He reported not experiencing any pain during his
visits in 2019 and he exhibited fair insight and judgment and good attention and
concentration throughout his exams.
In November 2019, Streikus visited his primary care provider, Nurse Practitioner
Andrew Vorhis, concerning his headaches. Nurse Practitioner Vorhis started Streikus
on prescription pain medicine and asked him to follow-up in the coming months.
B.
On November 8, 2017, Streikus applied for disability insurance benefits, alleging
disability beginning September 23, 2017. Streikus’s application for disability insurance
benefits was reviewed by state agency physicians at the initial level and on
reconsideration, and each time, Streikus was determined to not be disabled.
Following a hearing, an ALJ issued a decision likewise affirming the denial of
benefits on February 3, 2020. Applying the familiar five-step analysis, see 20 C.F.R.
§ 404.1520(a), the ALJ determined at Step One that Streikus had not engaged in
substantial gainful activity during the relevant period. At Step Two, the ALJ found
severe impairments, including degenerative disc disease of the cervical and lumbar
spine, status post concussion, headaches, major depressive disorder, anxiety, and post-

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traumatic stress disorder, but concluded at Step Three that these impairments did not
meet or medically equal the severity of one of the impairments in the Listings. Next, the
ALJ found that Streikus had the RFC to perform light work as defined in 20 C.F.R.
§ 404.1567(b), with—as relevant here—the following mental limitations:
work that can be learned in 30 days or less, with simple
routine tasks; routine workplace changes; simple work-
related decisions; is able to remain on task in two-hour
increments; with occasional interaction with coworkers,
supervisors, and no interactions with the general public.
At Step Four, the ALJ also concluded that Streikus was unable to perform his
past relevant work. Nonetheless, at Step Five, relying on testimony from a vocational
expert, the ALJ determined that other jobs existed in significant numbers in the national
economy that Streikus could perform. The ALJ thus concluded that Streikus was not
disabled.
The Appeals Council denied Streikus’s request for review, making the ALJ’s
decision the final decision of the Commissioner. 20 C.F.R. § 404.981. Streikus then
sought judicial review. A magistrate judge, presiding with the parties’ consent under 28
U.S.C. § 636(c), upheld the decision.
II. A NALYSIS
We review de novo a district court’s judgment affirming the denial of disability
benefits but apply the deferential “substantial evidence” standard when reviewing the
ALJ’s decision. Sevec v. Kijakazi, 59 F.4th 293, 297 (7th Cir. 2023); Butler v. Kijakazi, 4 F.4th
498, 501 (7th Cir. 2021). Evidence is substantial when it is sufficient for a reasonable
person to conclude that it supports the decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154
(2019); Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009). The standard demands more
than a scintilla of evidentiary support but is less demanding than the preponderance of
the evidence standard. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). While a
reviewing court looks at the whole record, it must “not reweigh the evidence, resolve
debatable evidentiary conflicts, determine credibility, or substitute [its] judgment for
the ALJ’s determination so long as substantial evidence supports it.” Gedatus v. Saul, 994
F.3d 893, 900 (7th Cir. 2021).
On appeal, Streikus argues that the ALJ failed to properly account for his
moderate limitations in concentration, persistence, and pace in the RFC and in the
hypothetical to the vocational expert. Streikus believes that the ALJ erred in three

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respects: (1) the ALJ did not incorporate leave and off-task restrictions into the RFC and
hypothetical as needed to accommodate Streikus’s headaches; (2) the ALJ improperly
limited him to simple, routine tasks, which Streikus contends is insufficient under Yurt
v. Colvin; and (3) the ALJ relied on Streikus assisting with the care of his children in
formulating the RFC in violation of the Beardsley doctrine.
A.
Streikus first contends that the ALJ failed to adequately discuss the impact of his
headaches on his ability to concentrate, persist, and maintain pace. Streikus argues that
this was an error because his headaches “clearly relate to ‘on task’ and ‘absence’
limitations.” As the Commissioner points out, however, Streikus did not raise this
argument before the district court, and thus has waived it. See, e.g., Jeske v. Saul, 955 F.3d
583, 597 (7th Cir. 2020) (noting that de novo review does not prevent the court from
finding an argument not raised before the district court waived).
Even if we subsume this contention within Streikus’s general argument that
leave and off-task considerations should have been factored into the RFC, the record
does not reflect that such limitations are necessary. To support his argument, Streikus
directs us to a variety of medical records referencing his headaches, including records
from his visits to Dr. Cahn, Nurse Practitioner Vorhis, the emergency room, and
Diamond Headache Clinic. While these records note Streikus’s complaints of headaches
and migraines and the treatment he received for them, they do not describe limitations.
Streikus bears the burden of not just establishing the existence of his condition but the
specific limitations affecting his capacity to work. See, e.g., Durham v. Kijakazi, 53 F.4th
1089, 1096 (7th Cir. 2022) (noting that the claimant bore the burden of establishing that
her tachycardia would impede her ability to work or required limitations beyond those
set forth by the ALJ); Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005) (claimant bears
the burden of showing that she has impairments that affect her ability to work and
pointing to various diagnoses and complaints is insufficient to establish the existence of
a functional limitation); 20 C.F.R. § 404.1512(a). The medical evidence Streikus points to
fails to carry this burden.
In addition, the ALJ extensively discussed Streikus’s testimony concerning his
headaches. The ALJ found Streikus’s reported limitations were inconsistent with the
medical record. In particular, the ALJ noted that Streikus denied experiencing
headaches at times and exhibited poor effort on certain cognitive testing. For support,
the ALJ pointed to Dr. Cahn’s statement that Streikus was possibly underperforming
because of Streikus’s belief that he was cognitively worse off or because he had allowed

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himself to become hypersensitized to his symptoms. The ALJ also acknowledged Dr.
Cahn’s recommendation that Streikus get a part-time job or do volunteer work. The ALJ
noted this recommendation suggested that Streikus maintained a functional capacity
that exceeded his subjective reports. The ALJ also explained that Streikus’s clinical
reports failed to document any considerable functional deficits beyond those included
in the RFC.
Despite Streikus’s medical records and testimony about his headaches,
substantial evidence did not support off-task and absence limitations. Accordingly, the
ALJ did not err by failing to include such limitations in the RFC or hypothetical to the
vocational expert.
B.
Next, Streikus relies on this court’s holdings in Yurt v. Colvin, Varga v. Colvin, and
Crump v. Saul to argue that the ALJ’s RFC determination and hypothetical to the
vocational expert did not encompass his issues with concentration, persistence, and
pace. Specifically, Streikus maintains that the RFC limitation to “simple routine tasks” is
insufficient under Yurt v. Colvin, 758 F.3d 850 (7th Cir. 2014), to encompass those issues.
He also argues that the ALJ failed to take into account leave and off-task considerations
in contravention of Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019). Accordingly,
Streikus contends that, contrary to Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015), the
ALJ’s RFC and hypothetical to the vocational expert fail to incorporate all of his
limitations.
The RFC refers to “the claimant’s ability to do physical and mental work
activities on a regular and continuing basis despite limitations from [his] impairment.”
Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). When determining the RFC, an ALJ
must incorporate all of a claimant’s functional limitations supported by the medical
record. See Varga, 794 F.3d at 813; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010);
Crump, 932 F.3d at 570; 20 C.F.R. § 404.1545(a); SSR 96-8p. Furthermore, if an ALJ relies
on testimony from a vocational expert, the hypothetical question the ALJ poses to the
vocational expert must incorporate all of the claimant’s limitations supported by the
medical evidence in the record. Varga, 794 F.3d at 813.
We have repeatedly explained that there is “no magic words requirement” in
crafting the RFC and hypothetical, as long as they adequately account for the claimant’s
demonstrated limitations found in the record. Crump, 932 F.3d at 570; Moreno v.
Berryhill, 882 F.3d 722, 730 (7th Cir. 2018), as amended on reh’g (Apr. 13, 2018). In the cases
Streikus points to—Yurt, Crump, and Varga—that was not the case. In Yurt, we held that

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the ALJ’s failure to include the limitations outlined in the state agency psychologist’s
assessment in the hypothetical constituted error. 758 F.3d at 859. Then in Varga, we
found reversible error where the ALJ’s hypothetical did not incorporate all of the
limitations supported by the medical record—particularly those found by the
consulting psychologists. 794 F.3d at 814. Similarly, in Crump we determined that an
RFC limiting the claimant to “simple, routine, repetitive tasks with few workplace
changes” did not adequately account for the claimant’s limitations in concentration,
persistence, or pace, in part because the ALJ had given “short shrift” to the claimant’s
treating psychiatrist’s opinion that the claimant was unable to perform reliably in the
workplace. 932 F.3d at 568–71.
Here, however, the ALJ adequately accounted for the limitations found by the
state agency psychologists. Dr. Hill, who reviewed Streikus’s diagnoses, symptom
allegations, and medical records at the initial level of review, opined that Streikus was
moderately limited in understanding, remembering, and carrying out detailed
instructions, but was not otherwise significantly limited in understanding, memory,
concentration, persistence, or pace. Dr. Unversaw reviewed the evidence at the
reconsideration level and affirmed Dr. Hill’s findings.
In crafting the RFC, the ALJ accounted for Streikus’s limitations with detailed
instructions by restricting Streikus to unskilled work with simple routine tasks, simple
work-related decisions, and only routine workplace changes.1 The ALJ further limited
Streikus to jobs requiring that he remain on task for two-hour increments to account for
his capabilities with focusing. Streikus maintains that “’remain on task in two hour
increments’ is actually a non-limitation” in relation to concentration, persistence, and
pace because it is “the minimum requirement of unskilled work that is not reflective of
someone with impaired concentration.” But Streikus has not identified any authority
stating that a concentration limitation cannot be the same as the minimum expectation
for unskilled work, nor are we aware of any. In his briefing, Streikus does not point to
any evidence demonstrating that he requires greater limitations than those identified in
the RFC; nor, for that matter, does Streikus articulate what additional limitations are
needed. Jozefyk v. Berryhill, 923 F.3d 492, 498 (7th Cir. 2019) (noting that it is unclear
what kinds of work restrictions might address the claimant’s limitations because he
hypothesizes none). Even when asked at oral argument, Streikus’s counsel could not
1 “Unskilled work” refers to work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time, usually within 30 days. 20 C.F.R.
§ 404.1568(a).

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identify what specific limitations the ALJ should have included or the evidence
supporting them.
While it is true that both the RFC and hypothetical to the vocational expert must
incorporate all of a claimant’s limitations supported by the record, Yurt, Varga, and
Crump assist Streikus only if the RFC and hypothetical failed to account for all of his
limitations. That simply is not the case here. The ALJ reasonably relied on the state
agency psychological consultants who translated their findings into an RFC. None of
Streikus’s treating providers opined that he had limitations related to concentration,
persistence, and pace. Additionally, Streikus is unable to identify what additional
limitations should have been included in the RFC.
C.
Lastly, Streikus asserts that the ALJ’s reliance on his helping care for his children
violates the Beardsley doctrine. In Beardsley v. Colvin, we noted that an ALJ may consider
a claimant’s daily activities in judging disability but must not equate those activities
with the challenges of daily employment in a competitive environment. 758 F.3d 834,
838–39 (7th Cir. 2014). There, we held that the ALJ’s determination that the claimant
could perform more demanding work was not supported by substantial evidence
where the ALJ’s main reason for discounting the claimant’s physical limitations was the
care she provided her mother. Id. Here, however, the ALJ referenced Streikus’s ability to
care for his children in reference to the ALJ’s assessment of Streikus’s ability to
concentrate, persist, or maintain pace in the paragraph B analysis at Step Three. As the
ALJ pointed out, the limitations identified in the paragraph B analysis “are not a
residual functional capacity assessment but are used to rate the severity of mental
impairments” at Steps Two and Three, while the mental residual functional capacity
assessment used at Steps Four and Five “require[] a more detailed assessment of the
areas of mental functioning.” Because the ALJ did not consider Streikus’s ability to care
for his children as part of the RFC assessment, nor did the ALJ equate Streikus caring
for his children with being able to perform in a competitive work environment, we see
no violation of the Beardsley doctrine.
AFFIRMED.

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