Hafermann v. Commissioner of Social Security

Filing 32

MEMORANDUM AND ORDER that the Commissioner of Social Security's decision is affirmed. Ordered by Senior Judge Warren K. Urbom. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL S. HAFERMANN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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4:12CV3204

MEMORANDUM AND ORDER ON
REVIEW OF THE FINAL DECISION
OF THE COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION

Michael S. Hafermann filed a complaint against the Commissioner of the
Social Security Administration1 on September 26, 2012. (ECF No. 1.) Hafermann,
who is proceeding pro se, seeks a review of the Commissioner’s decision to deny his
applications for disability insurance benefits under Title II of the Social Security Act
(the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (SSI)
benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. See 42 U.S.C. §§
405(g) and 1383(c)(3) (providing for judicial review of the Commissioner’s final
decisions under Titles II and XVI). The Commissioner has filed an answer to the
complaint and a transcript of the administrative record. (See ECF Nos. 11-14.) In

1

On February 14, 2013, Carolyn W. Colvin was appointed to serve as
Acting Commissioner of the Social Security Administration; shortly thereafter, she
was automatically substituted as a party in this case pursuant to Federal Rule of
Civil Procedure 25(d). (See Notice of Substitution, ECF No. 17.)
1

addition, the parties have filed briefs in support of their respective positions. (See
Pl.’s Br., ECF No. 16; Def.’s Br., ECF No. 26; Pl.’s Reply Br., ECF No. 30.) I have
carefully reviewed these materials, and I find that the Commissioner’s decision must
be affirmed.

I.

BACKGROUND

Hafermann filed applications for disability insurance benefits and SSI benefits
on February 6, 2009. (Transcript of Social Security Proceedings (hereinafter “Tr.”)
at 221-231.) The applications were denied on initial review, (id. at 113-114, 151159), and on reconsideration, (id. at 116-117, 161-170). Hafermann then requested
a hearing before an ALJ. (Id. at 172-173.) The hearing was held on February 1,
2011, (e.g., id. at 64), and, in a decision dated February 24, 2011, the ALJ concluded
that Hafermann “has not been under a disability, as defined in the Social Security Act,
from June 1, 2008, through the date of this decision,” (id. at 57 (citations omitted);
see also id. at 47-58). Hafermann requested that the Appeals Council of the Social
Security Administration review the ALJ’s decision. (E.g., id. at 5-6.) This request
was denied, (see id. at 1-3), and therefore the ALJ’s decision stands as the final
decision of the Commissioner.

II.

SUMMARY OF THE RECORD

On a Disability Report form, Hafermann claimed that he became disabled on
January 1, 2002, due to heart disease with two stent placements, cellulitis, recurrent
illness, chronic pain, dizziness, nausea, fever, chills, headaches, left leg swelling, left
leg redness, a chronic infection of the left leg, chronic diarrhea, episodes of sweating,
abdominal and groin pain, chest pain, left shoulder impingement, and arthritis. (Tr.
2

at 266.) He later amended his alleged onset date to June 1, 2008. (E.g., id. at 68.)
He was 46 years old at the time of the hearing before the ALJ, and he has completed
“4 or more years of college.” (Id. at 68, 276.) He has work experience as a bundle
hauler, forklift driver, laborer, lawn care worker, school bus driver, telemarketer,
telephone interviewer and temporary worker. (Id. at 267, 281, 352-355.)
A.

Medical Evidence

Before I summarize the evidence in the medical record, I must address two
preliminary matters.
First, my summary will emphasize the medical records cited by the parties in
their briefs. Hafermann’s briefs include lengthy descriptions of medical findings;
however, he provides few citations to the relevant pages of the transcript. (See, e.g.,
Pl.’s Br. at 9, ECF No. 16 (arguing, without providing citations to the administrative
record, that the ALJ erred by failing to consider evidence of“episodes” that allegedly
occurred in March, June, September, and November 2004; January and October 2005;
September and November 2006; and January 2009). See also, e.g., Pl.’s Reply Br. at
4-8, ECF No. 30.) I shall make a diligent effort to identify the records that
correspond to Hafermann’s arguments, but Hafermann must bear the risk that I will
be unable to locate the evidence upon which he relies. Cf., e.g., King v. Astrue, 564
F.3d 978, 979 n.2 (8th Cir. 2009) (noting that the claimant has the burden of showing
that he or she is disabled through step four of the sequential analysis used to analyze
social security disability claims).
Second, the parties dispute whether records that predate the alleged onset date
are relevant. Hafermann argues that medical records dating back to July 15, 1996,
must be considered. (See Pl.’s Br. at 8, 11, ECF No. 16.) The Commissioner
maintains that medical records predating Hafermann’s alleged onset date (i.e., June
3

1, 2008) were considered in connection with Hafermann’s past applications for
benefits, but they are not relevant to the present case. (See Def.’s Br. at 17, ECF No.
26.) I will consider the records predating the alleged onset date “in combination with
new evidence for the purpose of determining if the claimant has become disabled”
since the denial of his most recent prior application. Hillier v. Social Security
Administration, 486 F.3d 359, 365 (8th Cir. 2007). See also Pirtle v. Astrue, 479
F.3d 931, 934 (8th Cir. 2007) (“We have previously found that the ALJ may consider
all evidence of record, including medical records and opinions dated prior to the
alleged onset date, when there is no evidence of deterioration or progression of
symptoms.”). I note, however, that the transcript includes no medical records dated
prior to February 2005. (See Tr. at 648-49, 652, 654.) Records produced more
recently do occasionally describe Hafermann’s medical history, and these statements
of medical history sometimes include references to medical events that predate 2005.
(See, e.g., Tr. at 809 (consisting of a medical record dated July 8, 2010, that describes
Hafermann’s 2004 heart attack).)

I have taken note of these references to

Hafermann’s past medical history during my review of the record.2

2

I note in passing that the fact that the transcript lacks documents dating
back to 1996 does not amount to a failure to develop the record. E.g., 42 U.S.C. §
423(d)(5)(B) (“In making any determination with respect to whether an individual
is under a disability or continues to be under a disability, the Commissioner of
Social Security shall consider all evidence available in such individual’s case
record, and shall develop a complete medical history of at least the preceding
twelve months for any case in which a determination is made that the individual is
not under a disability.”). Also, Hafermann has not submitted for my consideration
any new, material evidence that was not included in the administrative record.
See, e.g., Duncan v. Astrue, No. 11-555, 2012 WL 763566, at *26 (D. Minn. Feb.
14, 2012) (describing circumstances where a court may properly remand a claim
for consideration of new evidence).
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Kyle Haefele, M.D., examined Hafermann on February 10, 2006, and noted
that he had been having issues with recurrent cellulitis. (Tr. at 672.) Hafermann’s
“white count” was found to be elevated during a previous check, so additional blood
work was ordered. (Id. See also id. at 690-91.) Dr. Haefele diagnosed coronary
artery disease, stable angina, hypercholesterolemia, and weight gain. (Id. at 672.)
On March 1, 2006, Hafermann visited the BryanLGH Heart Institute for a
follow-up. (Tr. at 522.) It was noted that Hafermann “had stents placed in the ostial
dominant circumflex in August 2004,” and that he “had rather profoundly elevated
LDL cholesterol and has been on 80 mg of Lipitor since.” (Id.) Laboratory results
obtained on February 17, 2006, showed that he was “doing about his baseline.” (Id.)
Hafermann was diagnosed with dyslipidemia and coronary artery disease, and he was
instructed to continue with his medications, “make some therapeutic lifestyle
changes,” and return for a follow-up in one year. (Id.)
On April 6-7, 2006, Hafermann was admitted to the BryanLGH Medical
Center’s emergency room with complaints of chest discomfort. (E.g., Tr. at 627.)
Hafermann’s prior cardiac history was noted to include an “angioplasty/ intracoronary
stent placement to the circumflex coronary artery in August 2004” and a “normal
Cardiolite Scan in January 2006.” (Id.) An echocardiogram taken on April 6 showed
a regular sinus rhythm with no acute ischemic changes, and cardiac enzymes were
negative. (Id.) Also, chest x-rays revealed stable “heart and mediastinal silhouettes,”
normal vessels, and clear lungs. (Id.) The records state,
On April 7, 2006, the patient underwent Cardiolite Stress Test which
showed no evidence of ischemia or scar; left ventricular chamber size is
normal without reversible cavity dilation; gated wall motions study
shows wall motion in all segments with calculated injection fraction of
52%. He then underwent a CT angiogram of the chest which showed no
evidence of pulmonary embolus; non-specific appearing lymph note left
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hilum and questionably right hilum, need for further follow up or
assessment should be based on clinical grounds.
....
Patient remained stable during the course of his hospitalization. He had
no further complaints of chest discomfort or shortness of breath. His
activity was increased as tolerated. Continuous cardiac monitoring
showed a regular sinus rhythm with no ectopy.
(Id. at 627-28. See also id. at 494, 635, 637, 641.) Hafermann was discharged with
“instructions regarding activity, discharge medications, and further follow up.” (Id.
at 628.) His discharge diagnoses included atypical chest pain, arteriosclerotic heart
disease, hypertension, hyperlipidemia, chronic cellulitis, tobacco abuse, and “status
post appendectomy, left ankle surgery, and lymph node biopsy.” (Id. at 627. See also
id. at 438-447.)
An endoscopic study conducted on April 21, 2006, revealed a normal
esophagus, “[e]rythematous erosions in the antrum compatible with erosive gastritis,”
and “[e]rythema in the duodenal bulb compatible with duodenitis.” (Tr. at 435-36.)
It was noted that these “findings may have been contributing to [Hafermann’s]
atypical chest pain.” (Id. at 436.)
On April 28, 2006, Hafermann visited Robert Rauner, M.D., for a re-check of
his heart disease. (Tr. at 670.) Dr. Rauner noted that Hafermann had been admitted
to the hospital earlier that month for chest pain, but “his Cardiolite turned out okay
and his CT angiogram to rule out PE was also okay.” (Id.) Dr. Rauner also noted that
Hafermann “had one episode of chest pain since his dismissal from the hospital and
was relieved with 1 nitroglycerin.” (Id.) Hafermann reported that he was attempting
to walk at least 20 minutes per day and to stop smoking. (Id.) Dr. Rauner diagnosed
coronary artery disease, hypertension, hyperlipidemia, tobacco abuse, and possible

6

prediabetes; continued Hafermann’s prescriptions; and advised him to return for a
recheck in four months. (Id.)
Hafermann followed up with Tim Dalton, M.D., on August 25, 2006, regarding
his chest pain. (Tr. at 670.) Dr. Dalton noted that Hafermann’s depression, leg pain,
and overall condition were stable, and “his lipids have been doing fine.” (Id.) No
changes were made to his medications, and he was directed to follow up in three or
four months. (Id.)
On September 19, 2006, Hafermann visited the BryanLGH Medical Center
emergency room with complaints of headache, fever, chills, and a left leg infection.
(Tr. at 612, 614.) Hafermann reported that he has had “chronic flare-ups of cellulitis
in the legs for over ten years,” and his past flare-ups have been accompanied by
similar symptoms. (Id. at 614.) An examination revealed an area of “only minimal”
erythema around the left lower leg 10 centimeters by 10 centimeters in size. (Id.)
There was no surrounding redness, no warmth, and no drainage. (Id.) In addition,
there was a small area of erythema on the medial left knee. (Id.) The record states,
“Neither one of these areas looked like they could be a source for his fever, but he
states he has had similar symptoms in the past and has had fever with these minimal
symptoms, and he does not want it to get worse.” (Id.) Hafermann was treated with
Keflex and advised to follow up with his primary care physician. (Id. See also id. at
621-23.)
On October 2, 2006, Hafermann followed up with Dr. Dalton regarding his
cellulitis. (Tr. at 671.) Dr. Dalton noted that Hafermann had recently been seen in
the emergency room with cellulitis of the left lower extremity, which was
accompanied by headache, nausea, and “just feeling ill.” (Id.) His symptoms
“improved fairly quickly,” and he was asymptomatic at the time of Dr. Dalton’s
7

examination. (Id.) Hafermann denied night sweats, fatigue, decrease in appetite or
weight, bowel problems, or lymphadenopathy. (Id.) A lymph node exam revealed
“no palpable lymphadenopathy diffusely.” (Id.) Hafermann’s diagnoses included
leukocytosis, resolved cellulitis, hyperlipidemia, coronary artery disease, history of
stable angina, and tobacco dependence. (Id.) Lab tests were ordered, and Hafermann
was advised to continue working on smoking cessation. (Id.)
On November 20, 2006, Hafermann followed up with Dr. Dalton regarding his
cellulitis. (Tr. at 669.) Dr. Dalton noted that Hafermann was seen in the emergency
room on November 13 with cellulitis of the left lower extremity and an elevated white
blood cell count. (Id. See also id. at 593-610.) Hafermann reported “significant
improvement in his discomfort and erythema,” and mild or negative symptoms
otherwise. (Id.) Dr. Dalton diagnosed leukocytosis and resolved cellulitis, and noted
that Hafermann would be “set up with an hematologist if persistent with his recurrent
infection and leukocytosis.” (Id.)
On November 30, 2006, Hafermann visited Nathan Green, D.O., at the
Southeast Nebraska Cancer Center on a referral from Dr. Dalton “for further
evaluation of a mild leukocytosis.” (Tr. at 450.) Dr. Green’s evaluation states,
Mr. Hafermann has an abnormal CBC with a mild leukocytosis
associated with a normal differential. This comes in the clinical setting
of a patient with recurrent lower extremity cellulitis and intermittent
diffuse body aches. This patient also has a history of tobacco use.
Differential diagnosis is certainly quite broad; however, I think it is most
likely this represents a leukoid reaction secondary to chronic
inflammation or occult infection. He certainly could have contribution
from chronic tobacco use. Interestingly, his total white count has been
declining toward normal over the last three months. I think it is much
less likely that there is an underlying marrow disorder such as
lymphoproliferative disorder. I have sent laboratory testing today . . . .
I will plan to see Mike back in the office next week for the results of the
8

. . . studies. At that point we will determine if a marrow exam is
necessary.
(Id. at 452.) A record dated December 6, 2006, indicates that all of the lab work
ordered by Dr. Green was within normal limits, and there was no evidence of
malignancy. (Id. at 453.)
A three phase bone scan of Hafermann’s lower extremities taken on December
4, 2006, was normal, and delayed whole body images revealed minimal degenerative
uptake in Hafermann’s left shoulder and cervical spine. (Tr. at 592, 692.)
Hafermann visited the Bryan LGH Medical Center emergency room on
December 25, 2006, with complaints of leg pain. (Tr. at 570.) He was suffering a
fever, and an examination revealed groin tenderness, knee tenderness, and “a very
small area of erythema at the knee.” (Id. at 573.) He received medication in the
emergency room and was discharged on December 26 with a prescription for
Levaquin. (E.g., id. at 588.)
Hafermann visited Richard Gustafson, M.D., on December 29, 2006, to followup after his December 25 emergency room visit for cellulitis of the left leg. (Tr. at
668.) Dr. Gustafson noted that Hafermann has “had repeated bouts of this over the
last 10 years or so.” (Id.) He also noted that Hafermann “[p]resented Christmas Day
to E.R. with onset of pain, some redness around his ankle and knee and tenderness in
the inguinal area, had a fever of 102, elevated white count with left shift.” (Id.) He
had been taking his medication, and the redness and pain in his leg was resolving at
the time of Dr. Gustafson’s examination. (Id.) Hafermann was directed to finish his
course of medication and return if needed. (Id.)
Hafermann returned to the BryanLGH Heart Institute for a follow-up on March
22, 2007. (Tr. at 520.) It was noted that he was doing well, and he was advised to

9

continue with his present medications and “lifestyle changes.” (Id.)
On September 17, 2007, Hafermann visited Dr. Dalton for a follow-up. (Tr.
at 667.) Dr. Dalton noted that Hafermann had no recent bouts of cellulitis, but he had
a chronically elevated white count, continued intermittent myalgias and leg pain, low
back pain, mild reflux and epigastric pain, and chronic intermittent chest pain. (Id.)
Hafermann also complained of diarrhea over the past two to three weeks, “although
it’s not on a daily basis.” (Id.) An examination revealed “some mild muscle
tightness” in the back that mildly limited Hafermann’s range of motion, and “no signs
of recurrent cellulitis.” (Id.) Dr. Dalton encouraged smoking cessation, exercise, and
appropriate diet; ordered lab work; and instructed Hafermann to follow up “pending
lab results, otherwise in 3-4 months.” (Id.)
Hafermann next visited Dr. Dalton on March 17, 2008. (Tr. at 666.) Dr.
Dalton’s record states,
[Hafermann] has a hx of hypertension, hyperlipidemia, heart disease,
tobacco dependence. He also has some chronic pain issues as well as
depression. Things seem to be fairly stable from that standpoint
although during complete ROS he has numerous somatic complaints
although they are only mild and certainly not limiting him at this point.
He continues to smoke ½ pack per day and we’ve talked at length many
times about cessation. He has not been very active over the winter
months and is trying to get back into walking again. He has gained
some weight back. He most recently had some URI symptoms but that
seems to be improving. He has no pulmonary or C/V symptoms. He
had some back pain with some spasm but that’s improving as well. He
has continued intermittent diarrhea . . . . Denies any other acute
musculoskeletal complaints.
(Id.) Following an examination, Dr. Dalton diagnosed hyperlipidemia under good
control, hypertension borderline control, “CAD asymptomatic,” tobacco abuse,
“Depression fairly stable,” and “Numerous somatic complaints.” (Id.) Lab work was
10

ordered, Hafermann’s medications were continued, and Hafermann was directed to
follow up in four to six weeks. (Id.)
On April 21, 2008, Hafermann followed up with Dr. Dalton, who noted, “Lab
checked at last visit noted lipid panel to be in an ideal range other than his HDL is a
little suppressed at 36.” (Tr. at 665.) Hafermann’s white count remained elevated,
and he had complaints of upper respiratory infection symptoms “for the past 5-6
days” and some intermittent diarrhea. (Id.) Dr. Dalton diagnosed “Hypertension
controlled,” “Hyperlipidemia fairly well controlled,” “CAD stable,” “Depression
stable,” and “URI improving.” (Id.) He directed Hafermann to follow up in three
months. (Id.)
Hafermann followed up with Dr. Dalton again on July 28, 2008. (Tr. at 664.)
He reported that his GI symptoms improved slightly, but he still suffered occasional
diarrhea. (Id.) He also reported that he had been exercising regularly, and he was
experiencing left shoulder pain, left elbow pain, and left heel pain. (Id.) Dr. Dalton
diagnosed mild left shoulder impingement, left lateral epicondylitis, left plantar
fasciitis, hypertension, coronary artery disease, and tobacco dependence. (Id.) He
directed Hafermann to “[w]ork on stretching and strengthening exercises for the
above musculoskeletal complains,” “[w]ork on icing,” and recheck in two to three
weeks. (Id.) After completing four physical therapy sessions between September 8,
2008, and September 18, 2008, Hafermann reported that his only “main remaining
problem [was] minimal pain in the heel,” but this pain was continuing to improve.
(Id. at 540. See also id. at 534-39.)
On September 23, 2008, Hafermann visited the BryanLGH Medical Center and
reported intermittent chest discomfort radiating down both arms and into his
shoulders, along with sweating, nausea, and shortness of breath. (Tr. at 543.) It was
11

noted that he had a “history of a stent to his circumflex in 2004,” and a “negative
stress test in 2006.” (Id.) Clyde Meckel, M.D., performed a cardiac catheterization
on September 24, 2008, and discovered that Hafermann’s “left anterior descending
coronary artery ha[d] a severe 80% proximal stenosis just proximal to the origin of
the first diagonal branch which ha[d] a 60% ostial stenosis.” (Id. at 558.) Dr. Meckel
then performed a “[s]uccessful stenting of the 80% proximal left anterior descending
coronary artery lesion using two drug-eluting stents,” which left “no residual
stenosis,” and a “[s]uccessful balloon angioplasty of the first diagonal side branch
using kissing balloon technique,” which left “30% residual stenosis.” (Id. See also
id. at 545.)
On October 6, 2008, Dr. Dalton noted that Hafermann had been hospitalized
for chest pain on September 23, 2008, and treated by Dr. Meckel. (Tr. at 663.)
Hafermann presented no complaints of continuing chest pain to Dr. Dalton, but he did
complain of intermittent shoulder, back, elbow, hand, and foot pain. (Id.) He
reported that physical therapy provided “significant relief” of these complaints,
however. (Id.) Dr. Dalton diagnosed coronary artery disease status-post stent,
hypertension, hyperlipidemia, multiple somatic complaints, and dental infection. (Id.)
He prepared a note to excuse Hafermann “from work today,” and he directed
Hafermann to follow up in eight weeks. (Id.)
Hafermann visited the BryanLGH Heart Institute on October 17, 2008, and
reported recurrent chest pain. (Id. at 518.) A treadmill nuclear perfusion study “came
back normal.” (Id. at 517; see also id. at 463, 518.)
Hafermann followed up with Dr. Dalton on November 17, 2008. (Tr. at 662.)
Dr. Dalton noted that Hafermann had experienced some chest pain since his last visit,
and he had completed a Cardiolite stress test. (Id.) He also noted that the test showed
12

an ejection fraction of 64% and “no obvious . . . abnormalities.” (Id.) Hafermann
reported that a lower extremity infection “has been better,” and he was curious
whether the improvement might be attributed to the medication he had been taking
to treat a dental infection. (Id.) Dr. Dalton spoke with Hafermann about his chest
pain and noted that there “may be an anxiety component” to it. (Id.) He diagnosed
atypical chest pain, coronary artery disease, controlled hypertension, controlled
hyperlipidemia, tobacco dependence, depression, and anxiety, and he directed
Hafermann to follow up in two or three months. (Id.)
On January 12, 2009, Hafermann visited the BryanLGH Medical Center with
concerns about recurrent cellulitis in his left lower leg. (Tr. at 528.) It was noted that
Hafermann was last seen for this same issue on Christmas Day in 2006. (Id.)
Hafermann was treated and discharged with a prescription for Levaquin and
instructions to follow up with the Lancaster County Health Department. (Id. at 52933.)
On April 3, 2009, Glen Knosp, M.D., reviewed the medical records and
completed a physical residual functional capacity assessment. (Tr. at 716-24.) He
listed Hafermann’s primary diagnosis as coronary artery disease, his secondary
diagnosis as “atypical chest pain,” and his “other alleged impairments” as a history
of leukocytosis.

(Id. at 716.)

Dr. Knosp concluded that Hafermann could

occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand
and/or walk about 6 hours in an 8-hour workday, and sit for a total of about 6 hours
in an 8-hour workday. (Id. at 717.) He also found that Hafermann had no postural,
manipulative, visual, communicative, or environmental limitations. (Id. at 718-20.)
Dr. Knosp wrote,

13

Claimant is credible, however his infections do not meet the
durational considerations. He had stent/angioplasty but his remaining
chest pain has been determined to be non cardiac/atypical. Physical
therapy has resolved his recent c/o left elbow/shoulder which came
about when he started exercising aggressively. He remains with left heel
spur, which he also says has improved considerably. Claimant has had
condition which resolve [sic] quickly, although they are recurrent.
(Id. at 721. See also id. at 723 (summarizing medical records).)
Also on April 3, 2009, Lee Branham, Ph.D., completed a psychiatric review
technique form indicating that from January 1, 2002, through the date of the
assessment, Hafermann had no medically determinable psychiatric impairment. (Tr.
at 702.) Dr. Branham wrote,
Claimant did not allege psych. The disability file mentions the
possibility only of a mental condition. He has not seen a psych, has not
been prescribed psych medications, and has never been hosp for psych.
His ADL form presents his limitations as pertaining only to his physical
medical problems.
(Id. at 714.)
On April 14, 2009, Hafermann visited BryanLGH Medical Center-East with
complaints of left leg pain and redness. (Tr. at 747, 749.) Following an examination,
it was noted that Hafermann appeared to be suffering from early cellulitis, though he
was “nontoxic in appearance” and afebrile. (Id. at 725, 748.) He was prescribed oral
antibiotics and directed to keep a previously-scheduled appointment with Lancaster
County Health. (Id. at 748, 750.)
Notes from Lancaster County Health dated April 17, 2009, indicate that
Hafermann had been gradually feeling better since his ER visit on April 14. (Tr. at
742.) Hafermann sought a work note stating that he could only work 20 hours per
week. (Id.) The doctor wrote a note to Hafermann’s employer “for being absent this

14

week,” but he “was not willing to write . . . a letter for 20 hrs pr work week” because
he believed “client can work > hrs.” (Id. See also id. at 741 (which includes a note
from Arif A. Sattar, M.D., stating “Also, patient is asking [for] a note if we can give
him that he can only work part-time, which according to him he was requesting by a
caseworker. Patient is requesting that he can only work part-time based on his history
of cellulitis. I told him that based on just the history of cellulitis we cannot write the
letter that he can only work part-time.”).) Hafermann was given a prescription for
Lipitor and directed to follow up in one month. (Id. at 742.) The record indicates,
however, that Hafermann refused to make a follow-up appointment and was
“upset/swearing mad about not getting [a] work note.” (Id. See also id. at 741
(indicating that Hafermann refused to stay in the clinic for a vital check because “Dr.
Sattar upset him” and refused to follow up with a cardiologist because he was “sick
of being misdiagnosed and being ‘jerked around’”).)

Nevertheless, Hafermann

returned to the clinic on May 8, 2009, for lab work and to pick up medications. (Id.
at 741.)
On August 19, 2009, Jerry Reed, M.D., reviewed the medical record and
affirmed Dr. Knosp’s RFC assessment of April 3, 2009. (Tr. at 757-58.) Also on
August 19, 2009, Patricia Newman, Ph.D., reviewed the record and affirmed Dr.
Branham’s mental RFC assessment. (Id. at 756.)
On September 21, 2009, Hafermann visited the Lincoln Orthopaedic Center
with complaints of right foot pain. (Tr. at 759.) X-rays revealed a “small avulsion
type fracture” of the fourth toe without displacement. (Id. at 760.) The toe was
“buddy tape[d]” to the third toe, and Hafermann was advised to return if he continued
to have problems. (Id.)
On November 12, 2009, Hafermann visited the BryanLGH Medical Center
15

Emergency Department with complaints of “discomfort with movement.” (Tr. at
767.) Hafermann explained that he experienced the pain in his back, across his
shoulders, down his arms, and “at the bottom of [his] lungs” whenever he moved.
(Id.) His physician noted that Hafermann had previously “undergone percutaneous
transluminal coronary intervention with two stents placed to an 80 percent proximal
left anterior descending lesion using drug-eluting stents with no residual stenosis”
and “successful balloon angioplasty of the first distal side branch . . . leaving 30
percent residual stenosis.” (Id.) In addition to this, Hafermann reported that his
history included “a repair and a screw in the left ankle in 1980 with removal . . . in
1998,” and “an appendectomy and lymph node biopsy in 1978.” (Id. at 769.)
Hafermann said that the pain he was experiencing was “similar to his previous
anginal pain . . . for which had stents placed.” (Id. at 790.) He also complained of
“easy fatigability,” chronic cellulitis, arthritis, “muscle and joint pains,” and chronic
headaches, and he said he had “white blood cells diagnosis of possible cancer.” (Id.
at 769-70.) Hafermann’s initial set of cardiac enzymes were normal and his EKG
showed regular sinus rhythm with no acute ST to T wave changes; nevertheless, he
was admitted to the Progressive Care Unit for further evaluation. (Id. at 767.) A
transthoracic echocardiogram “showed normal left ventricular systolic function,
normal diastolic function and mild pulmonary hypertension,” and a “Lexiscan nuclear
perfusion stress test” produced “a normal myocardial perfusion imaging study with
no areas of ischemia or infarction identified.” (Id. at 768.) Hafermann’s physician
concluded that “his discomfort was likely secondary to acid reflux,” and “he was
initiated on a proton pump inhibitor.” (Id.) Hafermann was discharged home in
stable condition on November 13, 2009. (Id.)
Hafermann was transported by ambulance to the emergency room at BryanLGH
16

Medical Center on July 8, 2010. (E.g., Tr. at 816.) He reported that he was in a
basement doing exercise when he developed chest pain radiating into both arms. (Id.)
He also reported that he has had two heart attacks, though records indicated “that he
had a heart attack in 2004 but not when he presented with chest pain in 2008.” (Id.
at 809.) His past medical history was noted to include coronary artery disease, “nonST elevation acute myocardial infarction in 2004, hypertension, hyperlipidemia,
ongoing tobacco abuse, headaches, recurrent left lower extremity cellulitis,
gastroesophageal reflux disease and mild pulmonary hypertension.” (Id. at 810.)
Examinations and tests revealed no ischemia, no infarction, and “normal left
ventricular systolic function,” but there was “decreased tracer uptake in the inferior
wall, consistent with diaphragmatic attenuation artifact.” (Id. at 815.) A comparison
“to studies dated November 2009 and October 2008” revealed no significant changes.
(Id.) Hafermann was discharged with instructions to follow up with a primary care
physician in three to five days and obtain a routine cardiac evaluation in three
months. (Id. at 817.)
On July 15, 2010, Hafermann visited Jennifer Graham, P.A., for a posthospitalization follow-up. (Tr. at 827-28.) He reported suffering chest pain on
almost a daily basis, though it “does not last long.” (Id. at 827.) Hafermann was
referred to cardiology. (Id. at 828.)
On November 2, 2010, Hafermann visited Dr. Meckel at the BryanLGH Heart
Institute for an evaluation. (Tr. at 832.) Dr. Meckel wrote,
Michael S. Hafermann has been fairly stable since he was in the
emergency room in July and had a stress test that showed no evidence
of ischemia. He does have some occasional chest pain episodes that
happen with exertion that have been very consistent over the last several
years without clinical change. There will be some radiation to his arms,
but he has not had any severe chest pain episodes like he had in July.
17

We have done multiple stress tests on him over the last several years and
never found any evidence of ischemia for similar symptoms to this. He
denies paroxysmal nocturnal dyspnea, orthopnea or ankle edema.
Unfortunately, he does continue to smoke.
(Id.) Dr. Meckel diagnosed (1) chronic history of chest pain with some typical and
atypical features, (2) negative nuclear study in July 2010, (3) coronary artery disease,
status post left circumflex stenting in 2004 and left anterior descending coronary
artery stenting in 2008 and also balloon angioplasty of a small diagonal side branch
at that time, (4) ongoing tobacco abuse, (5) hyperlipidemia, and (6) hypertension.
(Id.) Dr. Meckel “strongly encouraged” Hafermann to stop smoking and noted that
a diagnostic coronary angioplasty could be considered if his chest pain symptoms
accelerate. (Id.)
B.

Hearing Testimony

During the hearing before the ALJ on February 1, 2011, Hafermann testified
that he was working approximately 20 hours per week as a telephone interviewer.
(Tr. at 69.) When asked how many hours he worked at a time, he responded,
“Usually I schedule to work five hours this week. I’m only scheduled to work four
hours a day. Just for four days this week . . . .” (Id. at 70.) He later clarified that he
usually works four days per week for five hours per day. (Id. at 92.) Hafermann said
that he earned “a B.A. from the University” in May 1986, and he attended law school
for one semester. (Id.) He received government assistance and lives with his mother.
(Id. at 70, 86.) When asked to describe “the most serious problem” that keeps him
from working full-time, Hafermann stated,
I would say it’s a combination of at least two things.
That’d be the recurring cellulitis, which is recurrent and
chronic infections in my left leg, although I believe it’s
pretty much spread throughout my body, including my
18

right side of my chest, the back of my head; and the heart
disease. I have high blood pressure, too. . . . I also have
arthritis in my left ankle; the same leg that I get the chronic
cellulitis in. . . . I also had a screw in that ankle that was
placed there in 1980, in my left ankle. That was placed
there to repair a fracture that was supposed to be taken out
at the time, but it never was. That was removed in June
2000.
(Id. at 73.) He described his head pain as being “always there,” but “not a typical
headache.” (Id. at 76.) He also said, however, that the head pains “just kind of come
and go,” and can be exacerbated by certain medication. (Id.) In addition, Hafermann
said that he suffers “normal headaches” that “will create pounding” approximately
three times per week. (Id. at 76-77.) He also suffers constant pain in his left leg and
right side. (Id. at 82-84.)
Hafermann testified that he gets a feeling “like a hangover” or “flu-like
feeling” that hinders his concentration, which he attributes this to his cellulitis. (Id.
at 77.) Initially, he said that these feelings occur at least once per month and tend to
be accompanied by diarrhea. (Id. at 78-79.) Later, however, he clarified that his pain
also causes breaks in his concentration on a weekly–if not daily–basis. (Id. at 92.
See also id. at 93 (explaining that Hafermann experiences problems with
concentration at least one day out of each workweek).)
Hafermann also testified that he is limiting to sitting for four or five hours in
a day because he has to sit with his leg curled up underneath him in order to avoid
throbbing in the back of his thigh. (Id. at 80.) He then has to alternate sitting and
standing. (Id. at 80-81.) He added that prolonged standing caused worse pain than
prolonged sitting, and he prefers not to stand for more than a few minutes. (Id. at 8990.) He also said, however, that he usually walks every day for about 20 minutes.

19

(Id. at 91.) Hafermann said that he cannot work more than part-time because his
cellulitis and chest pain become aggravated when he increases his work. (Id. at 8687.)
Hafermann testified that he suffered heart attacks in August 2004 and
September 2008, each of which resulted in the placement of stents. (Id. at 88.)
Hafermann’s mother also testified at the hearing. (E.g., id. at 98.) She stated
that Hafermann has been living with her for eight years, and based on her
observations she did not believe that he could maintain a full-time job. (Id. at 98-99.)
She explained that Hafermann wears out extremely easily, and his chest pain and leg
pain cause him problems. (Id. at 100-101.) She also said that she believed
Hafermann would work full time if he could. (Id. at 104-05.)
C.

Vocational Expert’s Testimony

During the hearing, the ALJ asked a Vocational Expert (VE) to consider an
individual with Hafermann’s “same age, education, and past work history,” along
with “any transferrable skills.” (Tr. at 108.) The ALJ added that this individual
“could lift up to 20 pounds on occasion, 10 pounds on a frequent basis; could, in an
eight hour day, sit for six hours and stand for two hours; and would have an
opportunity to alternate positions for short periods of time, perhaps hourly; he could,
occasionally, bend, stoop, kneel, crawl; and he should not be around heights; should
avoid hazards, such as open machinery; and should not be exposed to temperature
extremes; should avoid concentrated cold, heat; and also, avoid things like dust,
fumes, astringents.” (Id. at 109.) He then asked the VE, “With those limitation[s],
would he be able to do any of his past relevant work?” (Id.) The VE responded
affirmatively, and specified that the hypothetical claimant would be able to work as
a telephone solicitor. (Id.)
20

The ALJ then asked the VE, “[I]f we were to treat his testimony as fully
credible - - I think the most important of those was the fact that he can’t work more
than five hours per day, that’d take him out of competitive employment?” (Id. at 109110.) The VE responded affirmatively. (Id. at 110.)
In response to questioning from Hafermann’s counsel, the VE responded that
Hafermann’s concentration problems, headaches, flu-like symptoms, and chest pain
are all symptoms mentioned in Hafermann’s testimony that would preclude him from
employment. (Id. at 110-111.)
D.

The ALJ’s Decision

An ALJ is required to follow a five-step sequential analysis to determine
whether a claimant is disabled. See 20 C.F.R. § 404.1520(a); id. § 416.920(a). The
ALJ must continue the analysis until the claimant is found to be “not disabled” at
steps one, two, four or five, or is found to be “disabled” at step three or step five. See
20 C.F.R. § 404.1520(a); id. § 416.920(a) In this case, the ALJ proceeded to step
four and found Hafermann to be not disabled. (See Tr. at 52-57.)
Step one requires the ALJ to determine whether the claimant is currently
engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), (b); id. §
416.920(a)(4)(i), (b). If the claimant is engaged in substantial gainful activity, the
ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(i),
(b); id. § 416.920(a)(4)(i), (b). The ALJ found that Hafermann “has not engaged in
substantial gainful activity since June 1, 2008[,] the alleged onset date.” (Tr. at 52
(citations omitted).)
Step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. § 404.1520(c); id. § 416.920(c). A “severe impairment” is
an impairment or combination of impairments that significantly limits the claimant’s
21

ability to do “basic work activities” and satisfies the “duration requirement.” See 20
C.F.R. § 404.1520(a)(4)(ii), (c); id. § 404.1509 (“Unless your impairment is expected
to result in death, it must have lasted or must be expected to last for a continuous
period of at least 12 months.”); id. § 416.920(a)(4)(ii), (c); id. § 416.909. Basic work
activities include “[p]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling”; “[c]apacities for seeing, hearing,
and speaking”; “[u]nderstanding, carrying out, and remembering simple instructions”;
“[u]se of judgment”; “[r]esponding appropriately to supervision, co-workers and
usual work situations”; and “[d]ealing with changes in a routine work setting.” 20
C.F.R. § 404.1521(b); id. § 416.921(b). If the claimant cannot prove such an
impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. §
404.1520(a)(4)(ii), (c); id. § 416.920(a)(4)(ii), (c). The ALJ found that Hafermann
“has the following severe impairments: a history of stent placement in 2004, coronary
artery disease, erosive gastritis, leukocytosis and recurrent leg cellulitis.” (Tr. at 52
(citations omitted).)
Step three requires the ALJ to compare the claimant’s impairment or
impairments to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); id. §
416.920(a)(4)(iii); see also 20 C.F.R. Part 404, Subpart P, App’x 1. If the claimant
has an impairment “that meets or equals one of [the] listings,” the analysis ends and
the claimant is found to be “disabled.” See 20 C.F.R. § 404.1520(a)(4)(iii), (d); id.
§ 416.920(a)(4)(iii). If a claimant does not suffer from a listed impairment or its
equivalent, then the analysis proceeds to steps four and five. See 20 C.F.R. §
404.1520(a); id. § 416.920(a). The ALJ found that Hafermann “does not have an
impairment or combination of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. at 52 (citations
22

omitted).)
Step four requires the ALJ to consider the claimant’s residual functional
capacity (RFC)3 to determine whether the impairment or impairments prevent the
claimant from engaging in “past relevant work.” See 20 C.F.R. § 404.1520(a)(4)(iv),
(e), (f); id. § 416.920(a)(4)(iv), (e), (f). If the claimant is able to perform any past
relevant work, the ALJ will find that the claimant is not disabled. See 20 C.F.R. §
404.1520(a)(4)(iv), (f); id. § 416.920(a)(4)(iv), (f).

The ALJ concluded that

Hafermann “has the residual functional capacity to occasionally lift and carry up to
20 pounds and frequently lift and carry up to 10 pounds. The claimant can sit for up
to 6 hours and stand and walk for up to 2 hours in an 8 hour workday but needs to
alternate sitting and standing on an hourly basis and cannot work around heights and
needs to avoid hazards such as open machinery. He should not be exposed to
temperature extremes, dust, fumes and astringents.” (Tr. at 52-53.) The ALJ also
found that Hafermann “is capable of performing past relevant work as a telephone
solicitor,” which “does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity.” (Id. at 57 (citations
omitted).)

III.

STANDARD OF REVIEW

I must review the Commissioner’s decision to determine “whether there is
substantial evidence based on the entire record to support the ALJ’s factual findings.”

3

“‘Residual functional capacity’ is what the claimant is able to do despite
limitations caused by all of the claimant’s impairments.” Lowe v. Apfel, 226 F.3d
969, 972 (8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a)). See also 20 C.F.R. §
416.945(a).
23

Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997) (quoting Clark v. Chater, 75
F.3d 414, 416 (8th Cir. 1996)). See also Collins v. Astrue, 648 F.3d 869, 871 (8th
Cir. 2011). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion.” Finch v. Astrue,
547 F.3d 933, 935 (8th Cir. 2008) (citations and internal quotation marks omitted).
A decision supported by substantial evidence may not be reversed, “even if
inconsistent conclusions may be drawn from the evidence, and even if [the court] may
have reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010). Nevertheless, the court’s review “is more than a search of the record for
evidence supporting the Commissioner’s findings, and requires a scrutinizing
analysis, not merely a ‘rubber stamp’ of the Commissioner’s action.” Scott ex rel.
Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (citations, brackets, and internal
quotation marks omitted). See also Moore v. Astrue, 623 F.3d 599, 602 (8th Cir.
2010) (“Our review extends beyond examining the record to find substantial evidence
in support of the ALJ’s decision; we also consider evidence in the record that fairly
detracts from that decision.”).
I must also determine whether the Commissioner’s decision “is based on legal
error.” Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (quoting Lowe v. Apfel,
226 F.3d 969, 971 (8th Cir. 2000)). “Legal error may be an error of procedure, the
use of erroneous legal standards, or an incorrect application of the law.” Id. (citations
omitted). No deference is owed to the Commissioner’s legal conclusions. See
Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003). See also Collins, 648
F.3d at 871 (indicating that the question of whether the ALJ’s decision is based on
legal error is reviewed de novo).

24

IV.

ANALYSIS

Hafermann’s lengthy briefs recite dozens of arguments that, in Hafermann’s
view, warrant a remand. (See generally Pl.’s Br., ECF No. 16; Pl.’s Reply Br., ECF
No. 30.) I have considered these arguments, and I find none of them to be persuasive.
Several of Hafermann’s arguments are addressed below.
Hafermann argues first that the ALJ erred by failing to include “all of the
impairments which the claimant/plaintiff has alleged throughout the disability
determination process” in his step two findings. (Pl.’s Br. at 2, ECF No. 16.) More
specifically, he states that the ALJ erred by failing to identify left ankle arthritis and
hypertension as severe impairments. (See id. See also Pl.’s Reply Br. at 14-16, ECF
No. 30.) Hafermann also suggests that because a different ALJ who analyzed his
prior applications found that his arthritis and hypertension were severe impairments,
the ALJ who rendered the instant decision was bound by those findings. (Pl.’s Br. at
2, ECF No. 16 (citing 20 C.F.R. §§ 404.955, 416.1455, 404.981, & 416.1481).) I
conclude, however, that the ALJ who rendered the instant decision was not bound to
accept the findings of different ALJs who evaluated different applications that were
submitted by Hafermann at different times. Cf. Wilson v. Barnhart, 188 F. App’x
556, 557 (8th Cir. 2006). Moreover, the record includes no documentary evidence
or testimony indicating that Hafermann’s hypertension or left ankle arthritis
significantly limited his ability to do basic work activities since the alleged onset
date.4
4

To the extent that Hafermann argues that the ALJ ignored Hafermann’s
claim that arthritis was a severe impairment, his argument is belied by the record.
(See Tr. at 53.)
Also, I note in passing that Hafermann seems to take issue with the ALJ’s
25

Hafermann also argues that the ALJ erred by failing to list the September 2008
stent placements as severe impairments at step two. (Pl.’s Br. at 2, 10-11, ECF No.
16; Pl.’s Reply Br. at 13, ECF No. 30.) The ALJ included Hafermann’s history of
stent placement in 2004, but not his history of stent placements in 2008, in his step
two findings. (Tr. at 52.) I agree that this omission is puzzling. I note, however, that
the ALJ did find at step two that Hafermann’s coronary artery disease was a severe
impairment, and the ALJ specifically mentioned the September 2008 stent placement
and angioplasty during his discussion of the medical evidence. (See Tr. at 52, 55-56.)
Thus, I am not persuaded that the ALJ ignored or discredited evidence of
Hafermann’s 2008 stents. The ALJ also noted, correctly, that Hafermann’s “left
ventricular function” was “quite good” following the September 2008 procedures.
Under the circumstances, I find that the ALJ’s failure to include the 2008 stents in his
step two findings is harmless.5
In his reply brief, Hafermann argues at length that the ALJ erred by failing to
find that Hafermann suffered a second heart attack in September 2008. (Pl.’s Reply
Br. at 9-14, ECF No. 30. See also Pl.’s Br. at 10-11, ECF No. 16.) The record
establishes clearly, however, that although Hafermann did undergo stent placements
and a balloon angioplasty in September 2008, he did not suffer a heart attack at that

failure to list plantar fasciitis, shoulder impingement, and tennis elbow as severe
impairments. (See Pl.’s Br. at 29-31, ECF No. 16.) The record shows that these
problems were addressed successfully after a few physical therapy sessions, and I
am not persuaded that the ALJ erred by failing to incorporate them into his
analysis at any step.
5

Similarly, the ALJ’s statement that Hafermann was seen by Dr. Whitney
on November 2, 2010, when in fact he was seen by Dr. Meckel, is harmless error.
(See Pl.’s Br. at 5, ECF No. 16; Tr. at 56, 832.)
26

time. (E.g., Tr. at 809.)
Hafermann argues next that the ALJ erred by concluding that “[n]o infectious
disease specialist has opined that this condition is disabling.” (Pl.’s Br. at 3, ECF No.
16.) Hafermann states, “as far as [he] can recall,” he did see an infectious disease
specialist in “either November/December, 1997 or in October, 2001.” (Pl.’s Br. at 34, ECF No. 16.) There are no records from an infectious disease specialist in the
transcript, however.

Moreover, Hafermann admits that the infectious disease

specialist who allegedly examined him in 1997 or 2001 “claimed that this condition
was ‘No big deal.’” (Id. at 5.) Thus, even if I were to credit Hafermann’s allegation
that he did see an infectious disease specialist, his allegation is not in tension with the
ALJ’s conclusion that Hafermann’s cellulitis was not disabling.6
Hafermann argues that the ALJ erred by finding that Hafermann works four
hours per day, five days per week, when in fact he usually works five hours per day,
four days per week. (Pl.’s Br. at 6, ECF No. 16; Tr. at 53.) He also argues that the
ALJ erred by finding that he attended law school for one year (when in fact he
attended only one semester), and that “[m]edication has helped with depression.”
(Pl.’s Br. at 6, 21, ECF No. 16; Tr. at 53.) I agree with Hafermann that the ALJ’s
references to Hafermann’s work schedule, law school career, and depression
medication are inaccurate. Nevertheless, because there is no indication that the ALJ’s
decision would be different if these errors had not occurred, I find that the errors are

6

I note in passing that the ALJ also correctly observed that Hafermann’s
cellulitis responded favorably and quickly to conservative treatment, and
Hafermann’s treating physician refused to write a note stating that Hafermann
could only work part time due to his cellulitis. (See Tr. at 56-57, 741-42.) The
ALJ’s finding that Hafermann could perform his past relevant work despite his
cellulitis is supported by substantial evidence.
27

harmless. See, e.g., Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (“To show an
error was not harmless, Byes must provide some indication that the ALJ would have
decided differently if the error had not occurred.”).
Hafermann argues that the ALJ gave too much weight to Dr. Sattar’s refusal
to write a note stating that Hafermann could only work part time. (Pl.’s Br. at 23-27,
39-40, ECF No. 16.) I disagree. Although the ALJ’s summary of the medical
evidence does refer to Dr. Sattar’s unwillingness to write such a note, there is no
indication that the ALJ treated this as a medical opinion entitled to controlling–or
even substantial–weight. (See Tr. at 56-57.) Instead, the ALJ merely noted that the
doctor was unwilling to write such a note. This was not erroneous.
Citing 20 C.F.R. § 404.946 and 20 C.F.R. § 416.1446, Hafermann argues that
the ALJ erred by failing to notify him of “anything that might be questionable and .
. . might result in anything other than a wholly favorable decision.” (Pl.’s Br. at 15,
ECF No. 16.) By their terms, sections 404.946 and 416.1446 require the ALJ to
notify a claimant “if evidence presented before or during the hearing causes the
administrative law judge to question a fully favorable determination.” (Emphasis
added). Because Hafermann’s claims were denied initially and on reconsideration,
it cannot be said that the ALJ “question[ed] a fully favorable determination.” In
short, Hafermann’s reliance on sections 404.946 and 416.1446 is misplaced.
Hafermann also argues that the ALJ erred by failing to give reasons in support
of his finding that the plaintiff was not disabled at step three. (See Pl.’s Br. at 16-19,
20, 48-50, ECF No. 16 (citing, inter alia, Smith v. Heckler, 735 F.2d 312 (8th Cir.
1984)).

See also Pl.’s Reply Br. at 16-18, ECF No. 30.)

Notwithstanding

Hafermann’s arguments to the contrary, the record shows clearly that Hafermann did
not meet or equal any of the listings, and under these circumstances the ALJ was
28

under no obligation to elaborate upon his conclusions at step three. Karlix v.
Barnhart, 457 F.3d 742, 746 (8th Cir. 2006). This case is readily distinguishable from
Smith, 735 F.2d at 317-18, wherein (1) the ALJ erred by failing to find a severe
impairment at step two, which led to a “consequent failure to evaluate [the claimant’s]
impairment according to the Listing of impairments,” and (2) the record included
evidence that the claimant met the requirements of a listing.
Hafermann criticizes the ALJ’s finding that Hafermann is not credible “to the
extent that he alleges disability and the inability to perform any and all work activity.”
(Pl.’s Br. at 27, ECF No. 16 (quoting Tr. at 57).) In particular, he argues that the ALJ
erred by considering Hafermann’s part time work as a basis for discrediting his
testimony, (id. at 42-47), and by considering his pro se brief as evidence of his
“mental” capabilities, (id. at 32, 42; Pl.’s Reply Br. at 19, ECF No. 30). He also
argues that the ALJ erred by discrediting his complaints of right flank pain. (Pl.’s
Reply Br. at 14, ECF No. 30.)
“The credibility of a claimant’s subjective testimony is primarily for the ALJ
to decide, not the courts.” Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)
(quoting Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001)). “In assessing
a claimant’s credibility, the ALJ must consider: (1) the claimant’s daily activities; (2)
the duration, intensity, and frequency of pain; (3) the participating and aggravating
factors; (4) the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant’s work history; and (7) the absence of
objective medical evidence to support the claimant’s complaints.” Id. (citing, inter
alia, Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). “An ALJ who rejects
[subjective] complaints must make an express credibility determination explaining
the reasons for discrediting the complaints.” Id. (citation omitted) (alteration in
29

original). The ALJ need not explicitly discuss each of the foregoing factors, however.
Id. (quoting Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)). “It is sufficient if
[the ALJ] acknowledges and considers [the] factors before discounting a claimant’s
subjective complaints.” Id. (quoting Goff, 421 F.3d at 791) (alteration in original).
“If an ALJ explicitly discredits the claimant’s testimony and gives good reason for
doing so,” courts “will normally defer to the ALJ’s credibility determination.” Jones
v. Astrue, 619 F.3d 963, 975 (8th Cir. 2010) (quoting Halverson v. Astrue, 600 F.3d
922, 932 (8th Cir. 2010)).
In discrediting Hafermann’s testimony, the ALJ first reviewed the objective
medical evidence pertaining to his allegations and concluded that it did not support
his claims. (Tr. at 54-57.) The ALJ also noted that Hafermann’s treatments for his
cellulitis have been conservative, short, and successful, and no specialist has
indicated that cellulitis precludes Hafermann from all work. (Id. at 57.) Similarly,
the ALJ noted that Hafermann’s cardiologist has opined that his condition is stable,
and there is evidence that gastritis has contributed to his chest pain. In addition, the
ALJ observed that Hafermann was working part-time, that his writing ability
demonstrates that his “mental state” would permit him to perform his past relevant
work, and that the RFC assessment is “consistent with the findings of the State
Disability Determination Services.” (Id.) I find that the ALJ provided several good
reasons for discrediting Hafermann’s testimony, and therefore his conclusions are
entitled to deference. More specifically, I find that (1) it was appropriate for the ALJ
to consider Hafermann’s part time work when evaluating his credibility, e.g., 20
C.F.R. § 404.1571; 20 C.F.R. § 416.971; Douglas v. Barnhart, 130 F. App’x 57, 59
(8th Cir. 2005); (2) the ALJ did not err by noting that no physician has ever opined
that Hafermann was restricted from working, e.g., Young v. Apfel, 221 F.3d 1065,
30

1069 (8th Cir. 2000); and (3) the ALJ did not err by finding that Hafermann’s writing
exhibited “a mental state showing his capability mentally of performing his past
relevant work,” (Tr. at 58).7
Hafermann also argues that it is irrelevant that he lives with his mother and
receives food stamps; that the ALJ improperly considered this evidence as part of a
“veiled attempt at some sort of ‘Motivational assessment’”; and that the ALJ erred by
discrediting his mother’s testimony based on her “pecuniary interest.” (Pl.’s Br. at
28-29, 34-37, 47, ECF No. 16 (citing, inter alia, Smith v. Heckler, 735 F.2d 312, 317
(8th Cir. 1984)).) In support of his arguments, Hafermann relies on the Eighth
Circuit’s statement in Smith that the Commissioner’s decision must be reversed and
remanded if the ALJ fails to make credibility determinations about the subjective
testimony of family members. 735 F.3d at 317. Here, however, the ALJ did make a
specific determination that Hafermann’s mother was not credible “for many of the
same reasons” that undermined Hafermann’s credibility. (Tr. at 57.) The ALJ also
noted, appropriately, that Hafermann’s mother “clearly has a pecuniary interest in the
outcome of the case.” (Tr. at 57.) See Choate v. Barnhart, 457 F.3d 865, 872 (8th
Cir. 2006). In short, the ALJ assessed the mother’s credibility in accordance with
7

Hafermann argues that the ALJ’s consideration of his written brief as
evidence of his mental capability to work is inconsistent with Reinhart v.
Secretary of Health and Human Services, 733 F.2d 571, 573 (8th Cir. 1984), and
Smith v. Heckler, 735 F.2d 312, 318-19 (8th Cir. 1984), which state that an ALJ
cannot reject a claimant’s subjective complaints solely on the basis of personal
observations made during the hearing. (See Pl.’s Br. at 42, ECF No. 16.) Here,
however, the ALJ did not reject Hafermann’s subjective complaints based solely
on his observation about the quality of the pro se brief Hafermann submitted
following the hearing. Furthermore, it seems to me that Hafermann’s writing does
tend to undermine his testimony that his pain causes him to suffer significant
difficulties in concentration.
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Smith v. Heckler and provided good reasons for discounting her testimony.
Finally, Hafermann argues that the ALJ’s RFC findings–particularly those
pertaining to Hafermann’s ability to lift and to sit–are not supported by substantial
evidence; that the ALJ made “no mention of the testimony” of the VE; and that the
ALJ failed to include all of Hafermann’s impairments in his hypothetical question to
the VE. (Pl.’s Br. at 22-23, 33, 47, ECF No. 16; Pl.’s Reply Br. at 9, 21, 24-25, ECF
No. 30.) I disagree. The ALJ determined Hafermann’s RFC based on all of the
relevant evidence, including the medical records, observations of treating physicians,
and the testimony of the witnesses (insofar as their testimony was deemed credible).
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). See also 20 C.F.R. §
404.1545; id. § 416.945. I find that the particular limitations specified by the ALJ are
supported by substantial evidence. Furthermore, the ALJ’s hypothetical question
included all of the limitations that were identified by the ALJ in his RFC assessment,
and therefore the VE’s testimony constitutes substantial evidence in support of the
Commissioner’s decision. See Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir.
2005) (“A hypothetical question is properly formulated if it sets forth impairments
‘supported by substantial evidence in the record and accepted as true by the ALJ.’”).
I find that the ALJ’s failure to specifically discuss the VE’s testimony is harmless
under the circumstances presented here.
IT IS ORDERED that the Commissioner of Social Security’s decision is
affirmed.
Dated August 20, 2013.
BY THE COURT

______________________________________
Warren K. Urbom
United States Senior District Judge
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