Hofslein, Marjorie H v. Barnhart, Jo Anne B. , 172 F. App'x 116 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2006
Decided March 1, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-2649
Appeal from the United States
MARJORIE H. HOFSLIEN, District Court for the Western
Plaintiff-Appellant, District of Wisconsin
v. No. 04-C-822-S
JO ANNE B. BARNHART, John C. Shabaz,
Defendant-Appellee. Judge.
ORDER
Marjorie Hofslien appeals the district court’s order upholding the decision by
an administrative law judge (ALJ) to deny her application for social security
disability insurance benefits. She principally argues that the ALJ should have
accorded controlling weight to evidence from her treating psychiatrist. In this order
we address the merits of her contentions, and, in a separate published opinion
issued today, we clarify the weight due evidence submitted by a treating physician.
Hofslien is 55 years old, has a college education, and has worked most of her
career as an elementary school teacher. She stopped working in April 2001 and
maintains that she cannot return to work due to severe depression and an
obsessive-compulsive anxiety disorder. These conditions, she testified, have
rendered her thinking so “muddled” and “disorganized” that it takes her a week to
do what she used to do in a day. Feeling overwhelmed by the simplest things, she
No. 05-2649 Page 2
often needs to “shut down,” experiences near-daily panic attacks, and is unable to
get out bed about once a week. She was in counseling, with short breaks, from
before the time she says she became disabled through the time of her hearing. She
also started group therapy, but quit after three sessions. In July 2001 she saw a
psychiatrist, Dr. Peck, who diagnosed her with a depressive disorder, anxiety
disorder, obsessive-compulsive personality traits, and a cognitive disorder. He
prescribed anti-depressant and anti-anxiety medications and continued to see her
regularly through the time of her hearing, periodically changing or updating her
prescriptions as needed.
Hofslien has been evaluated by a host of medical professionals, and there is
no consensus regarding her fitness for work. Neuropsychologists reported that her
cognitive functioning was essentially normal. Two state agency psychologists,
reviewing the medical evidence in 2002, opined that despite her symptoms “the
overall file evidence does not document a complete inability to sustain all types of
work” and that she retained “the capacity to perform unskilled work.” Dr. Peck
however has repeatedly opined that she cannot work. A consulting psychiatrist, Dr.
Weggle, saw Hofslien once and agreed with Dr. Peck. But Dr. Weggle also assigned
Hofslien a “Global Assessment of Functioning” score of 54, indicating only moderate
limitations in social and occupational functioning.
A psychologist, Dr. Caillier, testified at the hearing as a medical expert. He
stated that the limitations Hofslien experienced in performing her daily activities
“appear to be volitional or voluntary . . . in other words, when she needs to do
something she does it.” As to the difficulties Hofslien reported in maintaining
concentration, persistence and pace, Dr. Caillier, opined that they too “appear to be
volitional.” He acknowledged that Hofslien had moderate restrictions in these
areas and in social functioning, but commented that she could still perform simple,
repetitive work involving no more than two-step directions, only minimal contact
with the public and supervisors, and no more than normal production standards.
The ALJ then asked the vocational expert (VE), who had listened to the testimony
and reviewed the record, if someone of Hofslien’s age and past work experience,
with the capacity for only such simple, repetitive work was employable. The VE
testified that teaching was out of the question, but added that those limitations
could be accommodated in several thousand jobs, including housekeeper, hospital
cleaner, and kitchen assistant.
Following the familiar five-step inquiry, see 20 C.F.R. § 404.1520, the ALJ
first found that Hofslien had not worked since April 2001. Second, the ALJ found
that Hofslien had been severely impaired by depression, obsessive-compulsive
anxiety disorder, and a cognitive disorder. In evaluating Hofslien’s mental
impairments, see 20 CFR 404.1520a; Part 404, Subpart P, Appendix 1, § 12.00, the
ALJ considered her testimony and the competing medical evidence and found that
No. 05-2649 Page 3
she had moderate but not severe restrictions in activities of daily living, social
functioning, and maintaining concentration, persistence or pace. Third, the ALJ
found that none of Hofslien’s impairments met or equaled a listed impairment in
Appendix 1, Subpart P, Regulation No. 4.
At steps four and five the ALJ found that Hofslien lacked the residual
functional capacity to return to teaching, but could perform other jobs available in
the region. To the extent Hofslien testified that her impairments completely
restricted her from working, the ALJ found her testimony “not wholly credible” due
to inconsistencies with the medical record, principal among them the opinions of Dr.
Caillier and the state agency psychologists. The ALJ also determined that Hofslien
had the RFC to perform “simple, repetitive work” involving at most “two-step
directions . . . minimal contact with the public, supervisors or coworkers and . . .
normal production standards” and no “assembly line work or work production
pressures.” See 20 CFR § 404.1545. The ALJ rejected Dr. Peck’s contrary opinion
that Hofslien was incapable of any work because it was inconsistent with the
opinions of Dr. Caillier and the state agency psychologists.
We will uphold an ALJ’s decision if it is supported by substantial evidence in
the record. See 42 U.S.C. § 405(g); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004). Evidence is “substantial” when it is “sufficient for a reasonable person to
accept as adequate to support the decision.” Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003) (internal quotations omitted).
Hofslien argues that the ALJ erred under the “treating physician rule” by not
according controlling weight to the opinion of Dr. Peck. On a number of forms he
completed, Dr. Peck assessed Hofslien’s functional abilities as “poor” in work
related areas and reported that she was incapable of working. The ALJ discounted
Dr. Peck’s opinion, however, because it conflicted with the opinions of Dr. Caillier
and the state agency psychologists.
As discussed in our separate published opinion in this case, a treating
physician’s opinion does not enjoy a presumption of correctness in a case like this
where evidence opposing it was introduced. Dr. Peck’s opinion that Hofslien’s
depression made her unemployable was undercut by the opinions of Dr. Caillier and
the state agency psychologists that she can perform some unskilled work in spite of
her symptoms. Accordingly, the ALJ properly discounted it.
Hofslien next argues that the hypotheticals the ALJ posed to the VE
improperly omitted a specific description of the mental limitations caused by her
psychiatric disorders. The hypotheticals posited an individual of Hofslien’s age,
education, work experience and depressive disorder, limited to “simple repetitive
work, involving no more than minimal contact with the public, supervisors, or co-
No. 05-2649 Page 4
workers, and should not involve more than normal production standards . . . [or]
any assembly line or . . . production pressures.” Hofslien contends that the ALJ
should have additionally based the hypotheticals on a person who was—as the ALJ
found she was—moderately restricted in her activities of daily living, in
maintaining social functioning, and sustaining concentration, persistence, and pace.
When an ALJ relies on a VE’s testimony, the hypothetical questions must
incorporate all of the claimant’s limitations supported by medical evidence in the
record. See Idoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); Kasarsky v.
Barnhart, 335 F.3d 539, 543 (7th Cir. 2003). But the hypotheticals here reflected
Hofslien’s moderate restrictions in social functioning by limiting social contact with
supervisors, co-workers, and the public. And they captured her moderate
restrictions daily living and maintaining concentration, persistence, and pace by
limiting production pressures and prohibiting assembly line work. Nothing more
was required.
Finally, Hofslien argues that the ALJ’s adverse credibility finding—“to the
extent she asserts her impairments restrict her from all work activity”—is not
supported by substantial evidence. An ALJ’s credibility determinations is entitled
to “special deference” because of her unique ability to observe and evaluate
testimony. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). But an adverse
credibility determination must be supported by reasons sufficiently specific to
enable meaningful appellate review, Brindisi v. Barnhart, 315 F.3d 783, 787 (7th
Cir. 2003), and not “patently wrong,” see Schmidt v. Barnhart, 395 F.3d 737, 746-47
(7th Cir. 2005).
The ALJ’s decision not to “wholly credit” Hofslien’s testimony is entitled to
our deference. The ALJ explained that Hofslien’s testimony that she sometimes
cannot get out of bed conflicted with the opinion of Dr. Caillier that “when she
needs to do something she does it” as well as the opinions of the state agency
psychologists. The ALJ also properly considered the medical evidence that Hofslien
received only conservative treatment and her choice to quit group therapy and to
temporarily stop attending counseling. Sienkiewicz v. Barnhart, 409 F.3d 798, 804
(7th Cir. 2005); Schmidt, 395 F.3d at 747; Powers, 207 F.3d at 435-36.
The ALJ’s decision is supported by substantial evidence. We AFFIRM the
district court’s judgment.