Kasberger, John M. v. Astrue, Michael J. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 22, 2007
Decided June 27, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3868
JOHN M. KASBERGER, Appeal from the United States
Plaintiff-Appellant, District Court for the Western
District of Wisconsin.
v.
No. 05 C 638
MICHAEL J. ASTRUE,
Commissioner, Barbara B. Crabb,
Defendant-Appellee. Chief Judge.
ORDER
John Kasberger applied for Supplemental Security Income in 2003 at age 20
based on his diagnoses of attention-deficit/hyperactivity disorder, panic disorder
with agoraphobia, social phobia disorder, and obsessive-compulsive disorder. His
application was denied by the Social Security Administration and again by an
administrative law judge. Kasberger filed a civil action in the district court,
arguing that he is presumptively disabled because he meets a regulation’s definition
of anxiety disorder, and that he cannot perform any work because of his condition.
The district court accepted a magistrate judge’s thorough report and
recommendation to deny relief, and this appeal followed. Because the ALJ’s
No. 06-3868 Page 2
decision is supported by substantial evidence, we affirm.
I. BACKGROUND
According to Kasberger’s testimony and the testimony of his mother before
the ALJ, he spends most of his time in his room using the computer or playing with
his dog. Until recently he was active in motocross racing and liked to spend his
spare time tinkering with his motorbike, but he has largely given up those
activities. He now leaves the house roughly once a week, usually with his mother,
whom he occasionally drives to work and accompanies to the grocery store. His
remaining hobbies include photography and visiting ruins and abandoned
buildings; he also has a part-time job mowing the lawn of a nearby restaurant.
Kasberger was educated to the eighth grade, largely in special educational settings,
and from then on was home schooled. During a school field trip at one point, he was
kicked by another student and sustained serious injuries; he was taking the
medication Ritalin at the time, and blames the drug for his inability to defend
himself. In recent years, he studied for the GED exam and performed well in
various subjects but stopped short of completing the course.
The medical evidence in the record includes the treatment notes and findings
of five experts, all of whom agree on the diagnoses of ADHD, panic disorder with
agoraphobia, social phobia disorder, and OCD. Kasberger’s general practitioner,
Dr. Howard Spegman, noted that Kasberger has difficulty interacting with other
people and frequently has panic attacks when out in public. He is also highly
particular about his appearance and the food he eats. Dr. Spegman tried
prescribing several different medications, including Efflexor, Zoloft, Paxil, and
BuSpar, but Kasberger either found them unhelpful or refused to try them for fear
that they would “mess me up.” Dr. Spegman certified for the Kasberger family’s
insurance purposes that Kasberger was “disabled,” but refused to fill out a mental
impairment questionnaire in support of Kasberger’s SSI application, stating that he
was not a psychologist or psychiatrist, and noting that Kasberger “had an
evaluation rather extensive [sic] by Harlan R. Heinz, Ph.D. of Heinz Psychological
Services, and I feel that this individual would be best qualified to fill out this
mental impairment questionnaire in its entirety.”
Dr. Heinz is a private practitioner who examined Kasberger in June 2003 at
the request of the Wisconsin state disability agency. Dr. Heinz performed a
“Mental Status Exam,” testing Kasberger’s memory, cognitive abilities,
concentration, and attention. He concluded his five-page report by stating that
Kasberger’s “ability to relate to his supervisor or co-worker would be poor. Level of
attention and concentration appeared average. Pace of work would likely be
average. Ability to cope with stress and change is poor.” In June and October 2003,
two psychologists working for the Wisconsin disability agency—Dr. Joan Warrior
and Dr. Roger Rattan—reviewed Kasberger’s medical file; Dr. Warrior completed a
Mental Residual Functional Capacity Assessment, and Dr. Rattan reviewed the
No. 06-3868 Page 3
assessment and concurred with Dr. Warrior’s findings. They analyzed Kasberger’s
file and concluded that while he has serious limitations in maintaining social
functioning, he does not have other marked limitations and hence is not disabled.
The fifth doctor was an independent psychologist, Dr. Michael Lace, who observed
Kasberger’s testimony at the hearing, briefly questioned him, and then opined that
Kasberger suffers from a presumptively disabling anxiety disorder under the Social
Security regulations.
After the ALJ concluded that Kasberger was not disabled, Kasberger filed
this suit under 42 U.S.C. § 405(g). When his claim was rejected, he appealed.
II. ANALYSIS
Kasberger challenges the ALJ’s findings—which we review directly, without
deference to the district court, Groves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998)—at
steps three and five of the five-step sequential analysis for determining whether an
individual is disabled. 20 C.F.R. § 416.920(a)(4). The ALJ held that Kasberger was
not performing substantial gainful activity (step one), that he had a severe mental
impairment (step two), that his impairment did not meet or equal one of the
regulations’ listings for presumptively disabling impairments (step three), that he
had no past relevant work experience (step four), and that he retained the ability to
perform some work (step five). We will affirm the ALJ’s conclusions so long as they
are supported by substantial evidence, meaning evidence that a reasonable mind
might accept as sufficient. See Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
At step three, Kasberger argues that his condition qualifies as an “anxiety
related disorder” that is presumptively disabling. See 20 C.F.R. § 404.1525(c); id.pt. 404, subpt. P, app. 1, § 12.06. In order to meet the listing, he must show that he
satisfies the criteria of both § 12.06A and B; it is undisputed that he meets section
A. Under § 12.06B, he must show two of the following: “1. Marked restriction of
activities of daily living; or 2. Marked difficulties in maintaining social functioning;
or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4.
Repeated episodes of decompensation, each of extended duration.”
Kasberger argues that he has marked limitations in social functioning and in
concentration, persistence, and pace. The ALJ agreed as to the former, but not the
latter, noting that although Dr. Lace testified that Kasberger had marked
limitations with concentration, persistence, or pace, this finding was at odds with
other medical evidence in the record. The two state consultants who reviewed
Kasberger’s file found no limitations in this area—but their views hold less weight
since they did not examine Kasberger, 20 C.F.R. § 416.927(d)(1), or even observe
him, as Dr. Lace did at the hearing. Nevertheless, Dr. Heinz, the only psychologist
who actually examined Kasberger, also found less than marked limitations as to
concentration, persistence, and pace. Dr. Heinz tested Kasberger on the exact types
of memory and intelligence indicators that the regulations specify for evaluating
No. 06-3868 Page 4
concentration, persistence, and pace, see 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00C3, and concluded that Kasberger had the “necessary attention and
concentration for the task at hand,” that his “[l]evel of attention and concentration
appeared average,” and that his “[p]ace of work would likely be average.”
Kasberger argues that the ALJ “played doctor” by favoring Dr. Heinz’s
conclusions over Dr. Lace’s. We cannot agree. The ALJ did exactly what she was
supposed to do when presented with competing medical evidence: she evaluated it
and favored the more persuasive evidence, namely the evidence given by the
examining psychologist. See id. § 416.927(d)(1); Gudgel v. Barnhart, 345 F.3d 467,
470 (7th Cir. 2003) (per curiam). Kasberger also contends that Dr. Lace’s testimony
was inherently stronger because Dr. Lace had access to Kasberger’s most recent
medical records through 2004, whereas Dr. Heinz evaluated Kasberger in June
2003. But the ALJ was not compelled to find that the most current evidence was
the most probative evidence. See Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir.
2004). Kasberger has not explained how his abilities as to concentration,
persistence, and pace changed after his exam with Dr. Heinz. Kasberger’s general
practitioner, Dr. Spegman, observed once in treatment notes in February 2004 that
Kasberger has “poor concentration skills,” but did not elaborate on this comment in
any way. Moreover, Dr. Spegman is not a specialist like Dr. Heinz, so his views on
this matter carry less weight, see 20 C.F.R. § 416.927(d)(5)—a point that Dr.
Spegman himself seemed to acknowledge when he refused to fill out a mental
impairment questionnaire and referred Kasberger’s lawyer to Dr. Heinz.
In sum, substantial evidence supports the ALJ’s conclusion that Kasberger
was not markedly limited as to concentration, persistence, and pace, and that he
therefore is not presumptively disabled at step three of the analysis.
Kasberger also argues that the ALJ erred at step five in calculating his
residual functional capacity (RFC)—the work he can still perform despite his
limitations—and in posing a hypothetical question to the vocational expert based on
the RFC. Both the RFC and the hypothetical must account for all of the plaintiff’s
medically determinable impairments. 20 C.F.R. § 404.1545(a); Young, 362 F.3d at1002–03. Kasberger contends that the RFC didn’t reflect his limitations as to
concentration, persistence, or pace, but the RFC specifies that Kasberger can only
perform “minimal industry standards for maintaining pace and persistence.” The
ALJ therefore incorporated these limits to as great an extent possible without
finding Kasberger presumptively disabled. Kasberger argues that the ALJ did not
include limitations on his ability to work without interruptions or mention his need
to take breaks, but again, the RFC covered these points by specifying “short breaks
to compose himself with no public contact.” Finally, Kasberger contends that the
ALJ wrongfully excluded any consideration of his difficulties with attending work
regularly and punctually. But the medical evidence suggesting such a limitation
was thin, so the ALJ did not need to incorporate it into the RFC. See Haynes v.
No. 06-3868 Page 5
Barnhart, 416 F.3d 621, 630 (7th Cir. 2005). Aside from the state consultant, who
checked a box on the mental RFC suggesting that this could potentially be a
problem for Kasberger, the only doctor who discussed the issue was Dr. Lace, who
stated at the hearing that while maintaining attendance could be difficult for
Kasberger, working in a supportive environment and not too far from home might
alleviate these concerns. The ALJ was not required to conclude from this evidence
that Kasberger was unable to work regularly or to show up on time—limits which
would essentially prevent him from working at all.
III. CONCLUSION
It is beyond dispute that Mr. Kasberger is afflicted by serious and
challenging mental impairments. The case before the ALJ could have plausibly
come out the other way. Yet that in itself is not enough for us to upset the ALJ’s
decision, because the substantial evidence standard carries with it “a zone of choice
within which the decisionmakers can go either way, without interference from the
courts. An administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.” Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quoting Baker v. Heckler, 730 F.2d
1147, 1150 (8th Cir. 1984)).
AFFIRMED.