Jens, Jeffrey L. v. Barnhart, Jo Anne B. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1377
JEFFREY L. JENS,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-C-400-S—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 11, 2003—DECIDED OCTOBER 10, 2003
____________
Before FLAUM, Chief Judge, and POSNER and
EASTERBROOK, Circuit Judges.
FLAUM, Chief Judge. Jeffrey Jens applied for Social Se-
curity benefits, alleging disability due to psoriasis, psoriatic
arthritis, and fibromyalgia. The Social Security Administra-
tion denied his application initially and upon reconsider-
ation. The Administrative Law Judge (“ALJ”) concluded
that Jens was not disabled, and the Appeals Council denied
Jens’s petition for review. The district court upheld the de-
nial of benefits, and also denied Jens’s request for a remand
pursuant to the sixth sentence of 42 U.S.C. § 405(g). Jens
2 No. 03-1377
now appeals to this court, arguing that the ALJ’s decision
to deny benefits was not supported by substantial evidence,
and further that the additional evidence submitted to the
district court merits a remand. We affirm.
I. Background
A. Jens’s Impairments
At the time of the ALJ’s decision, Jens was forty-six years
old. After Jens was diagnosed with psoriasis in January
1997, Dr. Richard Leer, his primary physician, referred him
to the Mayo Clinic for further evaluation. At the Mayo Clin-
ic, psoriatic arthritis in Jens’s right foot was confirmed by
X-ray. Jens was offered a right shoe insert, injection ther-
apy of both knees, and inpatient ultraviolet-B therapy. In
September 1997 Jens was admitted to the Mayo Clinic for
tar and ultraviolet-B therapy. At that time, Dr. Toshihiko
Maruta concluded that Jens had developed an affective dis-
turbance due to his physical impairments. Dr. Alan Duncan
opined that Jens “carries the clinical diagnosis of psoriatic
arthritis, causing significant knee discomfort and intermit-
tently preventing him from working.”
In April 1998 Dr. Leer found Jens’s psoriasis “under fair
control,” and noted that Jens suffered from insomnia. Jens’s
rheumatologist, Dr. Howard Swanson, concluded in July
1998 that Jens’s psoriasis “looks much better than last
year.” He further observed that Jens’s “pain is still out of
proportion to the exam lab or x-ray findings.”
In August 1998 agency psychologist Dr. Joseph Roe per-
formed a consultative psychological examination of Jens.
Dr. Roe concluded that Jens had an adjustment disorder
and noted that “pain appears to interfere with [Jens’s] abil-
ity to concentrate and think clearly.” In addition, agency
physician Dr. Michael Haase examined Jens and observed
No. 03-1377 3
that he suffered from psoriatic arthritis and depression, but
that his psoriasis was not severe.
Over the next two years, Jens continued to see Drs. Leer
and Swanson. In January 1999 Dr. Leer remarked that
Jens was “somewhat depressed,” and that Jens had “signifi-
cant psoriasis of the scalp and scattered areas of the trunk.”
In February 1999 Dr. Swanson noted that the psoriasis was
“moderate, but better than in the past.” Jens returned to
the Mayo Clinic in November 1999 where Dr. Duncan con-
cluded that Jens suffered from possible psoriatic arthritis
and myofascial pain syndrome.
Dr. Joseph Holt performed a consultative examination at
the request of the state agency in February 2000. Dr. Holt
noted that Jens’s medical problems included psoriasis, in-
somnia, lower extremity pain, and symptoms consistent
with mild depression. In his recommendations, Dr. Holt
opined that Jens’s “chronic pain appears to significantly im-
pact his abilities to physically interact on a daily basis,” but
that Jens is “able to sit quietly and do activities with his
upper extremities apparently with no difficulty.”
Jens returned to Dr. Leer in May 2000 for a periodic
health assessment. Dr. Leer noted that Jens had wide-
spread psoriatic lesions, but also that his sleep pattern was
“good” and his mental status was “entirely normal.” Dr.
Leer completed a functional capacity evaluation of Jens,
recommending that Jens is capable of performing sedentary
work for eight hours a day, forty hours a week.
B. Administrative Proceedings
Jens testified on his own behalf before the ALJ. Accord-
ing to his testimony, Jens manages the psoriasis by using
multiple tars and creams to keep his body moisturized, in
addition to using a “UVB home light” daily and soaking in
oil for one hour every three days. Although the psoriatic
4 No. 03-1377
plaques had once covered ninety percent of his body, only
ten percent of Jens’s body was affected at the time of the
hearing. Jens’s psoriatic arthritis “comes and goes,” requir-
ing him to take painkillers when necessary. The fibromy-
algia flares up “once or twice a week,” requiring him to take
a stronger painkiller and “pretty much just stay[] in a chair
or bed.” His hands “cramp up” often.
Regarding his daily activities, Jens testified that he
watches television or reads for six hours a day; he drives,
although not “very far;” he walks two or three hundred feet
at a time, with the benefit of a cane; he makes sandwiches;
he occasionally washes the dishes. Lastly, Jens testified
that he missed “probably two or three days a month” of
work due to his condition. Jens believes that these absences
led to the termination of his employment.
At the hearing, Dr. Andrew Steiner testified as a medical
expert. Dr. Steiner stated that the medical evidence demon-
strated treatment for joint pain, possibly related to psoriatic
arthritis; joint tenderness and aches possibly related to
myofascial pain syndrome and/or fibromyalgia; psoriasis;
and insomnia. Dr. Steiner stated that Jens’s physicians had
diagnosed Jens with mild depression and an adjustment
disorder. In addition, Dr. Steiner opined that Jens’s impair-
ments, considered alone or in combination, did not meet or
equal a listing in the Social Security Administration’s med-
ical listing of impairments.
The ALJ called vocational expert (“VE”) Joseph Thomas
to testify. The VE testified that he had reviewed Jens’s file,
and that Jens’s past relevant work was as a buyer planner
and a production scheduler. He classified both positions
as “sedentary, [and] semiskilled.” The ALJ asked the VE
to consider a hypothetical claimant of Jens’s age, education
and work experience, suffering from joint pain related to
psoriatic arthritis or fibromyalgia, psoriasis on the scalp
and elbows, insomnia, some depression, an adjustment dis-
No. 03-1377 5
order, and reduced concentration. The VE testified that
such a hypothetical individual could perform light, semi-
skilled work, including both of Jens’s past positions. The
ALJ then modified the hypothetical claimant to account for
a “further restriction of concentration or focus.” In regards
to the modification, the VE testified that the hypothetical
claimant would be unable to perform Jens’s former posi-
tions. The VE further testified that an excess of one day per
month of sick leave might preclude such an individual from
maintaining his employment.
In a July 2000 decision, the ALJ followed the five-step
sequential analysis set forth in 20 C.F.R. § 404.1520 for
the consideration of applications for Disability Insurance
Benefits. At step one, the ALJ found that Jens had not en-
gaged in substantial gainful activity since May 9, 1998, the
date that he alleged he became unable to work. Although
the ALJ found in step two that Jens “has the severe physi-
cal impairments of psoriasis, psoriatic arthritis, myofascial
pain, high blood pressure, and a chronic pain disorder,” he
found in step three that these impairments failed to meet
or equal the requirements of any listed impairment. The
ALJ also considered that Jens’s physicians had diagnosed
mild depression and an adjustment disorder, and noted that
Jens “often experiences deficiencies of concentration,
persistence or pace . . . [but] the claimant never experiences
episodes of deterioration . . . in work-like settings.” Thus,
the ALJ concluded that Jens’s mental impairments failed to
meet or equal the requirements of any listed impair-
ment. The ALJ assessed Jens’s residual functional capacity
(“RFC”), and found that the restrictions recommended by
Dr. Leer permitted basic work activity. The ALJ found that
Jens’s testimony and written statements were “not entirely
credible.” Finally, the ALJ concluded at step four that
Jens’s RFC did not preclude him from performing his past
relevant work as a buyer planner and production scheduler.
Thus, the ALJ did not need to reach step five, and he con-
cluded that Jens was not disabled.
6 No. 03-1377
II. Discussion
The issue before this court is whether the ALJ’s findings
were supported by substantial evidence, not whether Mr.
Jens is disabled. See Diaz v. Chater, 55 F.3d 300, 306 (7th
Cir. 1995). “Evidence is ‘substantial’ if it is sufficient for
a reasonable person to accept as adequate to support the
decision.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th.
Cir. 2002) (quoting Sims v. Barnhart, 309 F.3d 424, 428
(7th Cir. 2002)). “To determine if substantial evidence
exists, the court reviews the record as a whole but is not
allowed to substitute its judgment for the ALJ’s ‘by recon-
sidering facts, reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility.’ ” Cannon v.
Apfel, 213 F.3d 970, 974 (7th Cir. 2000) (quoting Williams
v. Apfel, 179 F.3d 1066, 1071-72 (7th Cir. 1999)). Rather, if
the findings of the Commissioner of Social Security are
supported by substantial evidence, they are conclusive.
Perkins v. Chater, 107 F.3d 1296 (7th Cir. 1997).
On appeal, Jens first challenges the ALJ’s conclusion that
Jens retains the RFC to perform his past relevant work,
alleging that his mental impairments preclude him from
doing so. In support of his argument, Jens claims that Dr.
Roe’s characterization of Jens’s concentration as “somewhat
poor” should have led the ALJ to find Jens incapable of
semiskilled work. Further, Jens argues that the ALJ
wrongly disregarded the VE’s conclusion that a hypothetical
claimant would be unable to perform Jens’s past relevant
work if that claimant was suffering from concentration
difficulties beyond those described in Dr. Leer’s functional
capacity evaluation of Jens.
Despite these assertions, we find the ALJ’s conclusion
that Jens remains capable of performing his past relevant
work supported by substantial evidence. The record reveals
that Jens did not complain of concentration problems to his
treating physician. Jens testified that he reads books and
No. 03-1377 7
watches television for six hours a day. In his written appli-
cation for disability insurance, he characterized his social
functioning as “ok.” Notably, the VE opined that a claimant
could perform Jens’s past relevant work, even if he strug-
gled with the mental impairments described in Dr. Leer’s
functional capacity of Jens: an adjustment disorder, depres-
sion, and pain disorder. The ALJ acknowledged that “the
claimant often experiences deficiencies of concentration,
persistence, or pace.” Even so, the ALJ concluded that these
deficiencies did not render Jens incapable of semiskilled
work. The record as a whole supports the ALJ’s conclusion
that Jens has the RFC to perform his past relevant work.
Next, Jens challenges the ALJ’s decision to the extent
that it relies on the VE’s categorization of Jens’s past rele-
vant work as sedentary. The VE testified that Jens’s past
relevant positions of buyer planner and production sched-
uler required sedentary and semiskilled functioning. Jens
argues that the buyer planner position actually requires
light exertion, and was therefore erroneously described as
sedentary. In support of this argument, he cites the Dictio-
nary of Occupational Titles (“DOT”), United States Depart-
ment of Labor, (4th ed. 1991) which classifies the position
of “purchasing agent” as requiring light exertion. However,
the ALJ was permitted to rely on the VE’s opinion, even if
the VE contradicted the DOT. Powers v. Apfel, 207 F.3d 421,
436 (7th Cir. 2000). And in this case, Jens’s actual re-
sponsibility as a buyer planner conformed to the VE’s tes-
timony. Jens reported that his work required him to stand
for one hour; walk for one hour; sit for six hours; and lift
less than one pound. These requirements qualify as “seden-
tary work,” rather than “light work,” in the agency’s regula-
tions. See 20 C.F.R. § 404.1567(a). Thus, as the VE’s testi-
mony reflected the nature of Jens’s work as it was actually
performed by him, the ALJ’s reliance on the VE’s testimony
was proper.
8 No. 03-1377
Jens further argues that the ALJ failed to adequately
question the VE regarding the impact of Jens’s absenteeism
on his RFC. As this court has noted, the ALJ must question
the vocational expert regarding every impairment set forth
in the claimant’s record to the extent that the impairment
is supported by the medical evidence. Herron v. Shalala, 39
F.3d 329, 333 (7th Cir. 1994). Jens’s claim of continuing
absenteeism was not an impairment supported by the medi-
cal evidence. Dr. Leer, Jens’s physician, opined that Jens’s
impairments would not preclude him from working a forty
hour week. In fact, no doctor commented that Jens’s im-
pairments currently prohibit him from attending work on a
regular basis, notwithstanding Jens’s history of inpatient
treatment at the onset of the psoriasis.
Next, Jens challenges the ALJ’s determination that Jens’s
testimony and written statements were “not entirely
credible.” According to Jens, this determination is flawed
because the ALJ did not specify which statements were in-
credible, nor did he provide an evidentiary basis for the
credibility finding. Pointing out these omissions, however,
does not demonstrate that the ALJ’s credibility finding
is not supported by substantial evidence. As this court has
previously stated, “because hearing officers are in the best
position to see and hear the witnesses and assess their
forthrightness, we afford their credibility determinations
special deference. We will reverse an ALJ’s credibility de-
termination only if the claimant can show it was patently
wrong.” Powers, 207 F.3d at 435 (internal quotations and
citations omitted). In this case, the record provides ade-
quate support for the ALJ’s credibility finding. Dr. Swanson
reported that Jens’s pain was out of proportion to his lab-
oratory findings; Jens did not complain to his physicians of
an inability to concentrate; Jens testified that he was able
to watch television and read for six hours a day; Jens’s
treating physician concluded that he was capable of work-
ing forty hours a week. In sum, Jens has not demonstrated
that the ALJ’s credibility finding is patently wrong.
No. 03-1377 9
Finally, Jens argues that the district court should have
granted his request for a remand pursuant to 42 U.S.C.
§ 405(g) for the consideration of a report by VE Richard
Willette. The report lists the tasks and skills required of
production clerks. It does not contain any specific informa-
tion about Jens or his personal capacity to accomplish the
tasks listed.
To merit a remand pursuant to the sixth sentence of 42
U.S.C. § 405(g), a claimant must show that “there is new
evidence which is material and that there is good cause for
failure to incorporate such evidence into the record in a pri-
or proceeding.” Evidence is “material” if there is a “reason-
able probability that the Commissioner would have reached
a different conclusion had the evidence been considered.”
Perkins, 107 F.3d 1296 (internal quotations omitted.) It is
highly unlikely that the ALJ or the Commissioner would
have reached a different conclusion had they had the bene-
fit of Mr. Willette’s report. The report merely details the
responsibilities of most buyer planners, whereas the ALJ
had already considered Mr. Jens’s testimony regarding
his actual responsibilities as a buyer planner. Further, the
report is not new for purposes of § 405(g) review. “ ‘New’
evidence is evidence ‘not in existence or available to the
claimant at the time of the administrative proceeding.’ ”
Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993)
(quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)).
Although the report had not yet been written at the time of
the ALJ’s decision, the information summarized in the re-
port had long been in existence. The report does not provide
a new perspective on the information that was available to
Jens before his hearing before the ALJ, and thus does not
meet the newness requirement of § 405(g). The district
court correctly denied Jens’s request for a sentence six
remand.
10 No. 03-1377
III. Conclusion
The ALJ’s decision is supported by substantial evidence.
Jens has not met his burden for a sentence six remand un-
der 42 U.S.C. § 405(g). Accordingly, the judgment of the dis-
trict court upholding the denial of benefits is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-03