Haferbecker v. Astrue
Filing
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DECISION AND ORDER affirming the decision of the Commissioner; signed by Judge William C Griesbach on 07/05/2011. (cc: all counsel, via US mail to Timothy Haferbecker)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TIMOTHY MICHAEL HAFERBECKER,
Plaintiff,
v.
Case No. 10-C-806
MICHAEL ASTRUE,
Defendant.
DECISION AND ORDER
In this action Plaintiff Timothy Haferbecker challenges the decision of the Commissioner
of Social Security to deny disability benefits. On February 13, 2009, Plaintiff had a hearing before
an administrative law judge (“ALJ”) who ultimately found Plaintiff not disabled. Plaintiff appealed
and the Appeals Council denied review. Plaintiff argues that his chronic pain and depression render
him disabled. In support of his claim, Plaintiff has submitted new documentation from his treating
psychiatrist. But Plaintiff’s argument and documentation fail to demonstrate that the ALJ’s denial
of benefits was unreasonable. Accordingly, and for the reasons given below, the decision of the
Commissioner will be affirmed.
I. Background
Plaintiff was forty-nine years old at the time of the hearing. (Transcript of Proceedings,
“Tr.”, Dkt. 15 at 23.) He was 73 inches tall and weighed 255 pounds. (Tr. 11.) He most recently
worked full time in 2005 for Fabrication Express where he was responsible for cleaning metal
products that came off a fabrication line. In that position he regularly worked eight hours a day,
standing the entire time. (Tr. 25-26.) Plaintiff held this position while he was incarcerated at a
minimum security prison where, apparently, Plaintiff was eligible for work-release privileges. Prior
to his imprisonment – on a conviction for drunk driving – Plaintiff held a number of other jobs. (Tr.
27.) He worked for Modern Plastics where he packaged product , cleaned, and performed quality
control. (Tr. 27.) He also worked for Chuck’s Radiator as a lead mechanic and, before that, he
worked as a mechanic at Appleton Yellow Taxi. Both jobs required him to change positions
frequently, to lift items as heavy as a tire, and to perform multi-step mechanical work. (Tr. 28-29.)
After Plaintiff was released from prison in 2005 he began looking for work. (Tr. 31.) While
looking for full time employment he kept up with bills by doing odd jobs until at least 2008.
(Tr. 359.) Both Wisconsin’s Department of Vocational Rehabilitation and a temporary employment
service assisted in Plaintiff’s quest for a job. (Tr. 31.) Plaintiff testified that he applied for a number
of jobs, included work as a grocery boy. (Tr. 45.) As of the date of the hearing Plaintiff had been
unsuccessful in finding a full time position.
At the February 2009 hearing Plaintiff testified that he could not work because of back pain
and exhaustion from lack of sleep. (Tr. 32.) He also testified that he had received medical treatment
for carpal tunnel syndrome and fibromyalgia, and had some hearing loss on his left side. (Tr. 3641.) Plaintiff testified that he was depressed because he could not find work but he was not taking
any medications for his mood. (Tr. 48.) Despite these ailments Plaintiff explained that he was able
to take care of his mother by doing her dishes, cooking, and taking out her garbage. (Tr. 50.) He
was also able to go hunting. He testified that he had to use a crossbow instead of a regular bow.
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If he shot a deer he had to rely on the help of a friend to drag the deer in from the field but he was
able to gut and dress the carcass without assistance. (Tr. 42.)
This Court will briefly review Plaintiff’s medical documentation – which is included in the
transcript – that the ALJ had before him. X-rays of Plaintiff’s back, taken in June 2006, revealed
some spurring at C2-3, and to a lesser degree at C3-4, along with some degenerative spurring in the
lower dorsal spine. (Tr. 260.) Otherwise the x-rays reveal no abnormalities. (Id.) In July 2006, Dr.
Leonard, M.D. examined Plaintiff. Plaintiff complained of low back pain which he personally rated
a severity of five out of ten. (Tr. 261.) At the time Plaintiff was not taking any pain medication.
(Tr. 262.) Plaintiff told Dr. Leonard that he could walk for one mile, stand for forty-five minutes
and sit for thirty minutes at a time, and lift thirty pounds. (Tr. 262.) Dr. Leonard noted that while
Plaintiff had limited flexion (to forty-five degrees) in his dorsolumbar spine, Plaintiff’s flexion was
otherwise essentially normal. (Tr. 264.) Plaintiff also had normal grip strength and ability to do
fine finger dexterity and his mobility was good. (Tr. 264-65.) Dr. Leonard also opined that
Plaintiff’s estimates of his ability to walk for one mile, stand for forty-five minutes at a time, and
lift thirty pounds, were indeed reflective of Plaintiff’s abilities. (Tr. 266.)
Later in July 2006, Mina Khorshidi, M.D. reviewed Plaintiff’s medical records and opined
that Plaintiff could lift twenty pounds occasionally and ten pounds frequently, and could stand
and/or walk for six hours and sit for six hours in an eight-hour day. (Tr. 267-77.) In November
2006, Zhen Lu, M.D. reviewed the medical records and affirmed Dr. Khorshidi’s opinion. (Tr.
305.) In November 2006 Kathleen A. Clarke, Ph.D., examined Plaintiff. She opined that he could
“understand, remember, and carry out 3-step instructions if the tasks are visually demonstrated” but
she concluded that Plaintiff’s chronic pain would interfere with his concentration, attention, and
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pace. (Tr. 301.) Eric Edelman, Ph.D., later reviewed the evidence and opined that Plaintiff could
understand, remember, and carry out one and two-step instructions; interact appropriately with
supervisors and coworkers in an unskilled work setting; and maintain the attention and
concentration needed to perform unskilled work. (Tr. 322, 325-26.) While Dr. Edelman opined that
Plaintiff should limit public contact due to possible grooming issues (Tr. 326), Dr. Clark noted that
Plaintiff “is polite and would respond appropriately with supervisors and co-workers.” (Tr. 301.)
In March 2008, Plaintiff started taking prednisone, neurontin, and Tylenol for pain, and Effexor for
depression. (Tr. 343.) In October 2008, Plaintiff also started taking Percocet and Flexeril for pain
In light of the medical evidence of record and Plaintiff’s testimony the ALJ concluded that
“the claimant has not been under a disability within the meaning of the Social Security Act from
April 22, 2005 through the date of this decision [July 1, 2009]. (Tr. 8.) The ALJ recognized that
Plaintiff had several medically determinable impairments: degenerative spurring of the lumbosacral
spine, obesity, decreased hearing in the left ear, a depressive disorder, an anxiety disorder,
borderline intellectual functioning, dyslexia, drug and alcohol abuse in reported remission, carpel
tunnel syndrome on the left side, and fibromyalgia. (Tr. 11.) The ALJ concluded that such
medically determinable impairments, considered in combination, are severe. (Id.)
Ultimately the ALJ concluded that Plaintiff’s severe impairments did not meet or medically
equal one of the listed impairments in the Social Security regulations. (Id.) As for his Plaintiff’s
physical impairments, the ALJ noted that they did not cause an “inability to ambulate effectively”
or an inability to “perform fine and gross movements effectively.” (Id.) Regarding Plaintiff’s
mental impairments, the ALJ assessed both the “B” and “C” criteria for mental impairments but
found that Plaintiff’s impairments failed to meet either. The ALJ noted that Plaintiff was not taking
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any medication for depression or anxiety, had only moderate restrictions in activities of daily living,
only mild difficulties in social functioning, and only mild difficulties with concentration, persistence
and pace. (Tr. 12.) He had no episodes of decompensation. (Tr. 13.) Because Plaintiff did not have
at least two “marked” limitations (or at least one “marked” limitation combined with “repeated”
episodes of decompensation) the ALJ concluded that the “B” criteria was not met. Likewise the
ALJ concluded that the “C” criteria was not met because Plaintiff had no episodes of
decompensation and did not require a highly supportive living arrangement. (Tr. 13.)
The ALJ also analyzed Plaintiff’s residual functional capacity and found that Plaintiff could
perform the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The ALJ
credited the consultive psychologists who opined that Plaintiff could perform three-step instructions
(Tr. 15) and noted that Plaintiff was leading a “relatively active lifestyle” in that Plaintiff was
actively looking for work, could hunt with a crossbow and personally gut deers he shot, and was not
being cared for by other family members. (Tr. 14.) In assessing Plaintiff’s credibility the ALJ noted
the contrast between Plaintiff’s own representation of chronic conditions – dyslexia and
fibromyalgia – and the fact that he had been engaged in substantial gainful work activity until at
least 2004.
After assessing Plaintiff’s residual functional capacity (RFC) the ALJ concluded that
Plaintiff could preform the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b). A vocational expert testified that Plaintiff would be able to return to his past relevant
work, and the ALJ accepted such testimony. (Tr. 17.)
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II. Analysis
An ALJ’s conclusion of no disability is reviewed with deference and will be upheld if it is
supported by substantial evidence. Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th
Cir. 2010) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In reviewing the medical evidence of record and the Plaintiff’s own testimony, this Court
concludes that the ALJ’s conclusion is supported by substantial evidence. Three medical sources
examined Plaintiff and their opinions support the ALJ’s findings on the severity of Plaintiff’s
limitations. The ALJ also appropriately noted the disconnect between what Plaintiff is able to do
and Plaintiff’s own testimony on the severity of his pain.
In support of his lawsuit seeking review of the Commissioner’s determination of nondisability the Plaintiff submitted his original complaint and several letters to the Court. Plaintiff,
who is not represented by an attorney, has not filed a formal brief in support of his appeal but he did
submit a letter to the Court dated March 1, 2011 which the Court will treat as Plaintiff’s brief in
support of his complaint. (Dkt. 13.) In this letter/brief Plaintiff again alleges he is disabled and lists
the pain medication he takes. But his letter does not provide any detail as to why he believes the
ALJ’s determination is not supported by the evidence of record. The Commissioner filed a brief
on March 28, 2011. Since then three months have passed but Plaintiff has not filed a reply brief.
This Court will address certain additional evidence Plaintiff submitted on February 23, 2011.
On that date Plaintiff provided this Court with a letter from his treating psychologist, Dr. Beld and
related treatment notes. (Dkt. 12.) On its face the letter from Dr. Beld appears to support Plaintiff’s
claim of disability. Dr. Beld opines that Plaintiff “is in no way capable of even low-stress work,
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based solely upon his psychiatric status.” But upon closer examination Dr. Beld’s letter does not
undermine this Court’s conclusion that the ALJ’s determination of non-disability was supported by
substantial evidence. There are several reasons for this. First is the fundamental fact that the ALJ
never had an opportunity to review Dr. Beld’s letter or treatment notes, indeed the letter was dated
February 3, 2011 – some 18 months after the ALJ rendered his July 1, 2009 opinion. See Eads v.
Sec’y of HHS, 983 F.2d 815, 817 (7th Cir. 1993) (noting that an ALJ “cannot be faulted for having
failed to weigh evidence never presented to him.”) Second, Dr. Beld did not first start treating
Plaintiff until June 15, 2010, well after the ALJ had already made his decision. Thus the Dr. Beld’s
letter and treatment notes did not even address the time period at issue before the ALJ. See Schmidt
v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005) (noting that “new evidence is material only if it is
relevant to the claimant’s condition during the relevant time period encompassed by the disability
application under review.”) It is unclear whether Dr. Beld reviewed the same medical records the
ALJ reviewed, and it is unlikely that Dr. Beld’s diagnosis of Plaintiff has any bearing on the same
time period reviewed by the ALJ. Dr. Beld’s letter vaguely notes that Plaintiff “has been severely
ill since before our first visit in June of 2010” which provides little guidance on Plaintiff’s condition
during the relevant period of time. Third, Dr. Beld states that he only treats Plaintiff’s mental
conditions – not his pain – but Dr. Beld proceeds to offer an opinion on the effects of Plaintiff’s
pain on his ability to work. Fourth, Plaintiff told Dr. Beld that he has been looking for work for four
years, had resumed drinking despite having received thirteen DUIs, and had smoked marijuana –
behaviors that seem to confirm the ALJ’s own credibility conclusions. Finally, it is unclear to what
extent, if at all, Plaintiff’s decision obtain treatment from Dr. Beld could have been motivated by
Plaintiff’s difficulty in obtaining Social Security benefits. Dr. Beld’s treatment notes do indicate
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that Plaintiff “expressed frustration that he has not been granted Social Security benefits” and by
the time Plaintiff first visited Dr. Beld Plaintiff would have had an opportunity to review the ALJ’s
written determination that Plaintiff did not have a disability cognizable under Social Security
Regulations.
Ultimately, as noted above, this Court cannot conclude that the ALJ ignored or disregarded
Dr. Beld’s letter – indeed, the ALJ never had an opportunity to review the letter. Accordingly, this
Court will neither fault the ALJ for not considering Dr. Beld’s letter nor reverse the Commissioner’s
decision on that basis.
Setting aside Dr. Beld’s letter, I turn to the medical opinions that were actually before the
ALJ for consideration. In reviewing them I conclude that the ALJ reasonably relied on said
opinions. The ALJ accepted Dr. Clarke’s opinion that the Plaintiff could perform three-step
instructions because Dr. Clarke personally examined Plaintiff. Dr. Edelman, in contrast, did not
examine Plaintiff before opining that Plaintiff could only perform two-step instructions. See 20
C.F.R. § 404.1527(d)(1) (Generally, we give more weight to the opinion of a source who has
examined you than to the opinion of a source who has not examined you.). In concluding that the
Plaintiff could perform light work, the ALJ relied on the opinions of Drs. Khorshidi and Lu who
opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently, and could
stand and/or walk for six hours and sit for six hours in an eight our day. Such limitations seem even
more conservative than Plaintiff’s own assessment of his abilities. Recall that in 2006 Plaintiff told
Dr. Leonard that he could walk for one mile and lift thirty pounds. (Tr. 262.) Further recall that as
recently as 2005 Plaintiff had been working at Fabrication Express in a position where he was
required to stand a full eight hours a day. And the ALJ’s limitations are consistent with Plaintiff’s
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own description of hunting deer – a pursuit which involves walking, sitting, and some degree of
strength to dress the animal’s carcass.
The ALJ’s credibility determination is cemented by the readily apparent disconnect between
Plaintiff’s March 1, 2011 letter to this Court in which he contends that his pain prevents him from
doing “any type of . . . recreational activities” (Dkt. 13) and Plaintiff’s testimony regarding his
ability to go hunting, which certainly qualifies as a recreational activity. In assessing credibility the
ALJ also reasonably noted the dichotomy between Plaintiff’s self-professed pain level and the fact
that his mother stated he “continues to be able to perform house and car maintenance, do laundry,
and prepare meals.” (Tr. 12, 14.) Finally, Plaintiff’s testimony that chronic impairments such
dyslexia and fibromyalgia limited his ability to work is directly undermined by the fact that Plaintiff
did work until at least 2004. Thus, even assuming his impairments were chronic, they plainly did
not prevent him from working. The ALJ reasonably noted these specific examples to support his
conclusion that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of
his symptoms were not credible.
III. Conclusion
Substantial evidence supports the ALJ’s conclusion that Plaintiff was not disabled within
the meaning of the Act as of the date of the hearing. Even Plaintiff’s own testimony supports the
conclusion that he could do light work; indeed, he testified that he would “probably” be able to
work the same job he held with Fabrication Express if the job was again offered to him – a job that
required standing eight hours a day. (Tr. 45.) The ALJ’s conclusion is also supported by medical
opinions and the objective medical evidence. The ALJ cannot be faulted for failing to consider Dr.
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Beld’s letter, as that letter was never before the ALJ. For all of these reasons the decision of the
Commissioner is AFFIRMED.
SO ORDERED this
5th
day of July, 2011.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
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