Arnold, Steven v. Barnhart, Jo Anne ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3462
STEVEN ARNOLD,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No.05-C-006-S—John C. Shabaz, Judge.
____________
ARGUED JULY 12, 2006—DECIDED JANUARY 16, 2007
____________
Before COFFEY, RIPPLE, and SYKES, Circuit Judges.
COFFEY, Circuit Judge. Steven Arnold applied for
Disability Insurance Benefits and Supplemental Security
Income, claiming that his speed at performing tasks and
his ability to cope with stress are impaired from brain
damage he received at the time of his 1986 motorcycle
accident. He also claimed that due to his accident he is
prone to seizures and suffers from impaired short-term
memory and headaches. The Social Security Administra-
tion (SSA) denied Arnold’s application after a hearing
before an Administrative Law Judge (ALJ), who concluded
that Arnold was not disabled because he retains the
residual functional capacity to perform several jobs in the
Wisconsin area including machine cleaner, cleaner and
polisher, electro-cleaner, and steamer. Arnold appeals the
2 No. 05-3462
district court’s decision upholding that determination. He
contends that the ALJ’s decision is not supported with
substantial evidence and that the ALJ failed to determine
the credibility of four lay witnesses; failed to follow the
requirements of SSR 96-7p when determining the plain-
tiff ’s credibility; and failed to give proper weight to the
opinion of the examining psychologist, Dr. Hoffman. We
affirm.
I.
Arnold was 40 years old at the time of his hearing before
the ALJ. He graduated from high school in 1979. After-
wards he completed a technical program in automotive
maintenance, although he was unsuccessful at gaining
employment in an automotive-repair shop. During the
seven year span between his high school graduation and
his motorcycle accident in 1986, he worked seasonally as
a “pulp cutter,” splitting timber with a chainsaw, and his
annual earnings were anywhere from $1,400 to $6,000.
At the time of the accident Arnold was 25 and riding
his motorcycle without a helmet. He sustained closed-
head injuries as a result of his being thrown from his
motorcycle to the pavement. After undergoing brain
surgery he demonstrated memory problems but achieved
“excellent improvement” during his six weeks of rehabilita-
tion according to his treating psychologists. Upon dis-
charge Arnold had regained what the attending psycholo-
gists thought was “close to his pre-morbid range of cogni-
tive/intellectual abilities.” Three years later, though, he
began experiencing auras,1 which were followed on two
1
An “aura” is defined as:
An unusual sensation that is often a warning of an
impending migraine headache or a seizure, a sudden episode
(continued...)
No. 05-3462 3
separate occasions by “grand mal” epileptic seizures,
resulting in his uncontrollably and violently jerking his
body. Arnold visited the emergency room after the second
seizure and was prescribed Dilantin, a seizure-control
medication. Emergency room tests at that time showed
some softening and atrophy of his temporal lobes, and
doctors advised him that he might continue to have
seizures until the healing process had run its course.
Arnold received no further medical or psychological
treatment after 1989 because he lacked funds to pay
for health care or medical insurance, and he also stopped
taking seizure-control medication some time in the early
1990’s because “it did not agree with [him].”
In 2000 Arnold applied for disability benefits, claiming
that the suffering he endured from his head injury
caused him difficulty when called upon to concentrate and
when required to do so under pressure, which in turn
brought on nervous headaches that he feared could
precipitate a seizure if he did not take a break. Psycholo-
gist Marcus Desmonde examined him at the request of the
SSA. Tests performed by Dr. Desmonde confirmed a mild
to moderate “amnestic disorder,” or memory impairment.
1
(...continued)
of uncontrolled electrical activity in the brain, causing a
series of involuntary muscle transactions or a temporary
lapse of consciousness. An aura may consist of a strange
feeling, abnormal perceptions, or visual disturbances such as
seeing stars or flashes. For example, preceding the onset of
migraine pain, a person may experience a tingling sensation
or see zigzagging lights. When it precedes a seizure, an aura
may help identify the seizure’s focal point in the brain. It is
important to diagnose and treat the underlying disorder that
is causing the auras.
Am. Med. Ass’n, Complete Medical Encyclopedia, 210 (Jerrold B.
Leinkin & Martin S. Lipsky eds., 2003).
4 No. 05-3462
Dr. Desmonde thought that Arnold’s long absence from the
work-force might interfere with his ability to tolerate “the
stress and pressure of full-time, competitive employment”
and to interact appropriately with others. But Dr.
Desmonde concluded that Arnold could understand and
follow simple instructions and carry out tasks with
reasonable persistence and pace. In addition, two state
psychologists jointly reviewed his medical record and
concluded that Arnold was “not significantly limited” in
most work-related areas, including his ability to work
with others. Though characterizing him as “markedly
limited” in understanding, remembering, and executing
detailed instructions, the psychologists opined that
Arnold could handle “basic work stress.”
In administrative filings and his testimony before the
ALJ, Arnold related the effect of his impairment on his
work and other daily activities. He had continued to
work seasonally as a full-time pulp cutter for five years
after his accident (including two years after the onset of
his seizures). The range of his yearly earnings following
the accident varied between $1,300 and $4,900 and roughly
matched the range of his earnings before the
accident—$1,400 to $6,000. In 1990, during the off-season
for cutting pulp, he had attempted to work full-time as
a meat packer and as an auto mechanic, but had to quit
both jobs after one week because he would get tired
and experience headaches from being “pushed [too] hard.”
After 1991 he stopped returning to the seasonal work of
cutting pulp and explained that he gave up trying to work
for others because he could not handle the long hours
without frequent breaks and the pressure to produce on
a schedule.
Arnold testified that since approximately 1988, he has
worked for himself, repairing the automobiles of friends
and neighbors in his mother’s garage. His business grew
by word of mouth—according to the records he kept, he
No. 05-3462 5
took in only $700 from repairs in 1993, but earned between
$2,000 and $3,000 each of the subsequent years. He could
do anything from an oil change, to a brake repair, to an
engine overhaul on cars without fuel injection. He usually
worked up to five hours at a time at repairs without
getting tired and on occasion would work two five-hour
shifts in one day to get a job done. Nevertheless, he
averaged just 50 to 60 hours of paid work per month due
to down times in business.
Arnold testified that he slept eight hours a night and
took a nap daily of about one hour. He played computer
chess, owned and maintained his own car, which he drove
when shopping for groceries. He did some household
chores, although he would tire after about an hour of
vacuuming or sweeping and then rest for an hour. Arnold
testified that he continued to experience auras approxi-
mately once a month and was forced to lie down for several
minutes when they occurred to avoid a seizure. He was not
sure when he last had a seizure, although he thought he
had at least one in the five years before his hearing.
However, he added that, if the most recent event was
a seizure, it had been “milder than the other ones I had
earlier, because I think it’s finally healed up here.” To
avoid nervous headaches, seizures, and angry outbursts,
he said, he worked at a slow pace, taking breaks when-
ever he felt pressured, and taking a day off every couple
of weeks. When pressured, he explained, he sometimes
lost his temper and cursed out loud, occasionally while
in the company of others.
Four of his neighbors wrote letters to the SSA in sup-
port of Arnold’s application, and two of them appeared
at his hearing and testified. They generally agreed that
Arnold had attained a remarkable degree of success in
coping with his impairment, but only by rigidly structur-
ing his life to avoid stress. Crucial to that success, in their
opinions, was his ability to “walk away” from stressful
6 No. 05-3462
situations as often and for as long as he deemed necessary.
And although he got along well with those he knew, they
doubted his ability to behave appropriately with strangers
in a work setting. They added that “very rarely” would
he display an angry outburst. All four volunteered that
Arnold could not work in any competitive employment
setting due to deficits in his memory, concentration, and
his lack of ability to cope with stress.
A psychologist, Dr. Mary Louise Stevens, testified at the
hearing as a medical expert, after Arnold conceded that
she was qualified to give opinion testimony concerning
his medical condition. She based her opinion on the
medical records of Arnold’s treatment following his
accident and Dr. Desmonde’s report of his current
examination—but not the lay testimony of his neighbors,
which she deemed to be “subjective.” Dr. Stevens stated
that her opinion was tentative, however, because Arnold
had not seen fit to undergo a complete neuropsycho-
logical evaluation in the past eleven years, thus she recom-
mended a current neuropsychological evaluation.2 Based
on the records from twenty years ago documenting his
dramatic recovery during his hospital stay following the
accident, Dr. Stevens opined that Arnold’s impairment
fell short of meeting a listed impairment at the time of his
discharge. Although Dr. Stevens never personally exam-
ined Arnold, she reviewed all the available records and had
an opportunity to observe his conduct during the adminis-
trative hearing and tentatively concluded that during the
2
Over Arnold’s objection, the ALJ ordered a psychological
evaluation rather than the more-detailed neuropsychological
evaluation suggested by Dr. Stevens. But after reviewing the
psychological evaluation, Dr. Stevens came to the conclusion
that she no longer felt a more detailed evaluation was neces-
sary. Arnold nevertheless reiterated the objection in the district
court, but has abandoned it on appeal.
No. 05-3462 7
period for which he was seeking benefits Arnold was able
to perform simple, repetitive duties with low production
standards while in a low-stress environment. She acknowl-
edged Dr. Desmonde’s comment that Arnold might have
some difficulty tolerating work stress, and commented that
her assessment specifically took that limitation into
account by restricting him to low production standards and
a low-stress environment.
Finally, a vocational expert testified that a person with
the limitations described in Dr. Stevens’s tentative opin-
ion could work full-time as a pulp cutter or as one of
several types of cleaners, such as a machine cleaner,
cleaner and polisher, electro-cleaner, or steamer. If Arnold
was required to take precautions to avoid job-related
injuries caused by seizures, several thousand cleaner
positions would still remain available in Wisconsin. On
the other hand, as Arnold’s counsel inquired, if the in-
dividual had to take 15 to 30 minute breaks frequently
throughout the day, he would be unemployable.
After the hearing on May 1, 2001, psychologist Dr.
Robert Hoffman examined Arnold and administered an
intelligence test at the request of the ALJ. Dr. Hoffman
submitted a written report to the ALJ that confirmed
Dr. Desmonde’s diagnosis of an amnestic disorder, but
noted that Arnold’s overall intellectual performance was
significantly improved from the 1986 testing. Arnold’s
processing speed was in the bottom two-percent of his
peers, therefore Dr. Hoffman opined that he was “generally
slow at any task, diligently coping with his disability
via reductions in speed.” Arnold’s counsel told Dr. Hoffman
that Arnold’s neighbors reported that Arnold occa-
sionally displayed outbursts of anger, and on that basis
Dr. Hoffman opined that Arnold had “marked limitations”
in “respond[ing] appropriately to work pressures in a usual
work setting.” The ALJ sent Dr. Hoffman’s report to
Dr. Stevens for her opinion on whether it altered the
8 No. 05-3462
tentative opinion she gave at the hearing. Dr. Stevens
responded stating that her opinion was unchanged, and
further noted that Dr. Hoffman’s report satisfied her as
to the accuracy of her initial conclusion that Arnold
could perform simple, repetitive tasks with low produc-
tion in a low-stress work environment.
At the outset of his decision, the ALJ found that Arnold
met the insured status requirements of the Act only
through June 1994. In concluding that Arnold was not
under a disability prior to that time, the ALJ followed the
familiar five-step inquiry. See 20 C.F.R. § 404.1520. In the
first step the ALJ considers the applicant’s present work
activity. See id. § 404.1520(a)(4)(I). Second, the ALJ
weighs the severity of the applicant’s impairment. See id.
§ 404.1520(a)(4)(ii). The impairment or combination of
impairments must significantly restrict an applicant’s
physical or mental ability to perform basic work activities
or an ALJ should enter a finding of not disabled. See id.
§ 404.1520(a)(4)(c). Third, the ALJ decides whether the
impairment or combination of impairments meets or
equals an impairment listed within the regulations which
are conclusively disabling. See id. § 404.1520(a)(4)(iii).
If an ALJ is unable to make a disability determination in
the first three steps, then the process proceeds to an
assessment of the applicant’s residual functional capacity
(RFC). See id. § 404.1520(a)(4)(e). At the fourth step, the
ALJ determines whether the RFC prevents the applicant
from performing his or her past relevant work. See id.
§ 404.1520(a)(4)(iv). If not, in the fifth and final step the
ALJ uses the assessment of RFC to determine if the
applicant can make an adjustment to other work based
on the applicant’s age, education, and work experience. See
id. § 404.1520(a)(4)(v). In the last step, the burden is on
the Commissioner to demonstrate that the applicant is
capable of performing other work “in the national econ-
omy.” Butea v. Apfel, 173 F.3d 1049, 1054 (7th Cir. 1999).
No. 05-3462 9
Applying the five-step inquiry in this case, the ALJ
initially found that Arnold had not engaged in substantial
gainful activity since his alleged onset date of October
1988. This was two years after the accident and one
year before he began experiencing epileptic seizures.3
Second, the ALJ found that Arnold had been severely
impaired by an organic mental disorder resulting from his
brain injury. Third, the ALJ concluded that Arnold’s
mental impairment did not meet an impairment listed
in Appendix l, Subpart P, Regulation No. 4. At steps four
and five the ALJ found that Arnold had no past relevant
work but had the residual functional capacity to perform
other jobs available in the region. Although Arnold main-
tained that he was unable to work without frequent
breaks due to deficiencies in concentration, persistence,
and pace, the ALJ concluded that such a limitation was
inconsistent with the medical evidence and with Arnold’s
ability to work for several hours repairing automobiles.
II.
On appeal, Arnold challenges the ALJ’s finding at the
fifth step of the evaluation process where the ALJ found
that Arnold has the residual functional capacity to per-
form other jobs in the economy. He maintains that he
cannot handle stress in the workplace and that, based on
his experience servicing friends’ cars in his mother’s
garage, he needs to take frequent rest breaks.
Initially, the plaintiff argues that the ALJ should not
have disregarded the statements of his four neighbors. The
neighbors corroborated Arnold’s testimony that he only
3
Due to a typographical error, the ALJ’s decision says that
Arnold’s alleged onset date of disability is October 1998. The
correct year, 1988, was clear at the hearing.
10 No. 05-3462
had the stamina to work for short periods and that he
walked away from stressful situations. The ALJ wrote
that: “third parties testified that [Arnold] is unable to
stay on tasks, unable to handle stress, and withdraws
when he reaches his stress limit.” In Arnold’s view, the
ALJ failed to evaluate the credibility of this lay testimony
before rejecting it. A review of the record demonstrates
that the ALJ did not wholly reject the neighbors’ observa-
tions; but, he did recognize the limited significance of
such testimony. The only material issue was whether
Arnold’s impairment made the rest breaks psycho-
logically and medically necessary. Basing his determina-
tion on the opinion of Dr. Stevens, a medical expert, the
ALJ found that Arnold’s breaks were not medically
necessary. The four neighbors, two of whom had experience
with brain injured people,4 but none of whom were health
care professionals, were not competent to refute the
professional medical testimony. See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (evidence
4
Arnold suggests that the ALJ should have credited the lay
opinions rather than those of the doctors because the neighbors
had “extensive professional experience dealing with disabled
individuals and [one] in particular had extensive experience
working with brain injured people.” While one neighbor testi-
fied that he had worked in special education administration for
twenty years and “interacted in one way or another . . . with
probably 500 people with brain injury,” and the other testified
that he had been the Director for Senior Housing and Handi-
capped Housing for Catholic Charities for approximately twenty
years, neither neighbor’s experience qualified either of them to
render a medical opinion. See 20 C.F.R. §§ 404.1527(a)(2)
(defining “medical opinions” as statements by “acceptable med-
ical sources”), 404.1513(a) (medical sources include physicians,
psychologists, optometrists, podiatrists, and qualified speech-
language pathologists). Arnold concedes that neither was
proffered as an expert.
No. 05-3462 11
submitted by petitioner was not from an “acceptable
medical source” and so could not establish existence of
an impairment); Blum ex rel. Golay v. Comm’r of Soc. Sec.,
348 F.3d 124, 126 (6th Cir. 2003) (same); 20 C.F.R.
§ 404.1513(a).
Next, Arnold complains that the ALJ failed to follow the
requirements of Social Security Ruling 96-7p, which
outlines how an ALJ should go about assessing a claim-
ant’s credibility when his allegedly disabling symptoms
(such as pain or fatigue) are not objectively verifiable. In
a case such as this, the claimant offers medical evidence
that he suffers from a condition that might give rise to
disabling symptoms but, because of the subjective nature
of the symptoms, the ALJ’s finding of severity depends on
the claimant’s testimony. The plaintiff points out that
Ruling 96-7p requires that the ALJ make a finding on
whether Arnold’s statements concerning his symptoms
and their functional effects are credible. If his state-
ments about his pain or other symptoms are not sub-
stantiated by objective medical evidence, SSR 96-7p
requires the ALJ to consider all of the evidence in the
case record, including any statements by the individual
and other persons concerning the claimant’s symptoms.
See 20 C.F.R. § 404.1529; Social Security Ruling 96-7p.
Because the ALJ found that Arnold’s limitations could be
accommodated without the need for frequent breaks,
Arnold claims that the ALJ did not properly credit his
testimony.
Ruling 96-7p directs that an ALJ’s evaluation of the
credibility of a claimant:
must contain specific reasons for the finding on credi-
bility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s state-
12 No. 05-3462
ments and the reasons for that weight . . . . It is not
sufficient for the adjudicator to make a single,
conclusory statement that the individual’s allegations
have been considered . . . [nor is it] enough for the
adjudicator simply to recite the factors that are de-
scribed in the regulations for evaluating symptoms.
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)
(internal quotation marks and citations omitted); Social
Security Ruling 96-7p. Although a claimant can establish
the severity of his symptoms by his own testimony, his
subjective complaints need not be accepted insofar as they
clash with other, objective medical evidence in the record.
Carradine v. Barnhart, 360 F.3d 751, 764 (7th Cir. 2004)
(Coffey, J., dissenting). In addition:
the adjudicator must consider the entire case record,
including the objective medical evidence, the individ-
ual’s own statements about symptoms, statements
and other information provided by treating or examin-
ing physicians or psychologists and other persons
about the symptoms and how they affect the individ-
ual, and other relevant evidence in the case record.
Id. at 775 (quoting Social Security Regulation 96-7p).
Credibility determinations will not be overturned unless
they are clearly incorrect. Zurawski, 245 F.3d at 887;
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). As long
as the ALJ’s decision is supported by substantial and
convincing evidence, it deserves this court’s deference.
Sims v. Barnhart, 442 F.3d 536, 537 (7th Cir. 2006).
The record demonstrates that the ALJ did not totally
disregard Arnold’s account of his symptoms or their effects.
According to Arnold’s testimony, when he was under stress
or pressure, he suffered from headaches and could become
frustrated, tired, or even angry. He managed these condi-
tions by interrupting his work to rest. The ALJ found this
testimony believable, but after considering and weighing
No. 05-3462 13
all the evidence, rejected Arnold’s claim that his preferred
means of coping with his symptoms—taking frequent
breaks—was medically necessary. The compelling medical
evidence presented clearly established that frequent
breaks were not medically necessary and that any diffi-
culty that Arnold had in dealing with stress was accommo-
dated by his restricting his employment to low-stress work.
The ALJ properly relied on objective medical and other
evidence that sufficiently contradicted the credibility of
Arnold’s claims of disability. Based upon the neutral
expert medical testimony of Dr. Stevens, the ALJ found
that Arnold was capable of performing “simple, repetitive,
low production, low stress work tasks.” The ALJ also
found that Arnold’s own disclosure of his daily work
activities demonstrated that he had only mild restrictions
on his daily activities and mild to moderate difficulties
in maintaining concentration, persistence, or pace. Fur-
thermore, the ALJ considered Arnold’s prior work and
wage earning history5 and the testimony of lay persons
regarding his ability to stay on task and to handle stress.
On balance, the ALJ concluded that: “[t]he claimant’s
subjective complaints and functional limitations are
inconsistent with the record as a whole.” Thus, it is clear
to this court that the ALJ gave sufficient deference to
Arnold’s subjective claims in light of the record as a whole
to satisfy the requirements of Social Security Ruling 96-7p.
Finally, the plaintiff argues that the ALJ should have
given more weight to a single observation by a psycholo-
gist, Dr. Hoffman, that Arnold’s angry outbursts showed
a marked limitation in his ability to respond appropri-
5
As related above, the record shows that, both before and after
his accident, Arnold worked as a seasonal pulp cutter. He earned
between $1,400 and $6,000 annually before the accident and
between $1,300 and $4,900 after the accident.
14 No. 05-3462
ately to pressures in a work setting. He based this observa-
tion not on medical tests but on a report of Arnold’s
counsel that Arnold occasionally displayed angry out-
bursts. The plaintiff himself testified that his outbursts
of anger were triggered by stress. Nevertheless, another
expert, Dr. Stevens, was of the opinion that a work
limitation involving low production standards and a low-
stress environment accommodated the limitation noted
by Dr. Hoffman. Her conclusion was supported by two
state agency psychologists who believed that Arnold
could cope with “basic” stress and was not limited in his
ability to work with others. Because Dr. Hoffman’s opinion
was in conflict with the more convincing opinions of the
other medical experts, the ALJ was entitled to disregard it.
See White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005);
20 C.F.R. § 404.1527(d)(2).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-16-07