Bradley, Richard A. v. Barnhart, Jo Anne B. , 175 F. App'x 87 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2006
Decided April 7, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2719
RICHARD A. BRADLEY, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin
v. No. 04-C-0755-S
JO ANNE B. BARNHART,* John C. Shabaz,
Defendant-Appellee. Judge.
ORDER
In 2000, Richard Bradley filed for disability insurance under the Social
Security Act (“the Act”), 42 U.S.C. §§ 416(I), 423, claiming that he suffered from
fibromyalgia, chronic fatigue syndrome (“CFS”), and depression. After his claim
was administratively denied, Bradley requested and received a hearing before an
administrative law judge (“ALJ”). The ALJ found that Bradley failed to show that
his ailments rose to the level of being debilitating under the Act, and that he could
do other work. The Social Security Appeals Council then denied Bradley’s request
for review, and that made the ALJ’s decision the final decision of the Commissioner
of Social Security. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
*
Pursuant to Fed. R. App. P. 43(c), Jo Anne B. Barnhart is substituted
for her predecessor, Kenneth S. Apfel, as Commissioner of Social Security.
No. 05-2719 Page 2
Bradley next appealed to the district court, which affirmed the ALJ’s decision.
Bradley now appeals that decision to this court.
Bradley was 55 years old at the time of his hearing before the ALJ. He has a
high school education supplemented with vocational school courses in machining
and welding. He served in the military (completing two tours of duty in Vietnam)
and worked as a metal fabricator and welder for approximately 25 years. Most
recently, Bradley worked as a self-employed dairy farmer in Northern Wisconsin; in
addition to farming he homeschooled his youngest son.
At the hearing, Bradley presented the following testimonial and documentary
evidence supporting his claim: In 1994, Dr. Alan Bridges of the VA Hospital
Rheumatology Clinic in Tomah, Wisconsin, diagnosed him with fibromyalgia and
depression. Over the next few years, Bradley experienced increased pain, fatigue,
and depression. Bradley stated that his condition worsened in late 1999 and 2000,
when “flare-ups” of his fibromyalgia prevented him from working steadily on his
farm; once the “flare-ups” passed, however, he could resume normal activities. But
his inability to work steadily on the farm fueled his depression, which his primary
care physicians treated with pain killers and anti-depressants. Although the
medication appeared to help, the pain and depression prevented him from operating
the farm on his own, and in November 1999 he sold off his dairy herd. Soon after,
Bradley reported to his primary care physicians that he contemplated suicide.
As a part of his disability application, Bradley underwent a consultative
examination in July 2000 with an internal medicine specialist, the results of which
showed that he could still function despite pain and depression. In February 2001,
Bradley began seeing a psychiatrist, Dr. Tapeesh Kansal, for depression. Bradley
stated at times that the treatment improved his moods, but that there were
nonetheless instances when the treatment did not help his depression or ability to
cope with not being able to farm.
In July 2002, Dr. Bridges and Dr. Kansal were asked to submit separate
questionnaires to assess Bradley’s Residual Functional Capacity (“RFC”), which
gauges what work-related activities he could perform despite his impairments. See
Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001); see also 20 C.F.R.
§ 404.1545(a)(1). Dr. Bridges noted in his RFC assessment that he diagnosed
Bradley with fibromyalgia in 1994, which developed into what he called “a more
chronic fatigue syndrome.” Dr. Kansal completed a Mental Impairment
questionnaire and Mental RFC assessment in which he stated that Bradley suffered
from “adjustment disorder” and depression that stemmed from the fibromyalgia.
After Bradley presented evidence supporting his claim, the ALJ questioned
an independent medical expert regarding Bradley’s psychological ailments. The
No. 05-2719 Page 3
medical expert testified that Bradley’s depression did not restrict his daily
activities; Bradley had only mild difficulty in maintaining social functioning; and
that Bradley had only moderate difficulties in maintaining concentration,
persistence, or pace.
The ALJ then questioned a vocational expert regarding what type of work
Bradley could perform despite his ailments. After confirming that the expert was
familiar with Bradley’s claim and the evidence supporting it, the ALJ posed a
hypothetical question in which he asked if an individual with Bradley’s medical
condition could perform “simple, routine, repetitive, low-stress work.” The
vocational expert replied yes. After Bradley’s counsel interjected that the term
“low-stress work” was “unclear,” the vocational expert clarified that he defined the
term to mean “[o]ne- and two-step jobs.” The vocational expert then continued that
Bradley could perform jobs as a visual inspector (15,000 positions available in the
state of Wisconsin), security guard (11,000), and messenger courier (1,125).
After the evidence was submitted, the ALJ applied the five-step analysis, 20
C.F.R. § 404.1520(a)(4)(i)-(v), and found: that Bradley had not engaged in
substantial gainful employment since the alleged onset of his disability (step one);
that Bradley suffered from severe impairments, including osteoarthritis,
gastroesophageal reflux disease, and depression (step two); but that none of his
impairments qualified as a listed impairment (step three). The ALJ then
determined that Bradley did not retain the RFC to continue farming (step four); but
went on to find that there was “simple, routine, repetitive, low-stress work” Bradley
could perform in the national economy (step five).
In reaching his conclusion the ALJ stated that he was not persuaded by
Bradley’s evidence. The ALJ did not place great evidentiary weight upon the RFC
assessments submitted by Dr. Bridges and Dr. Kansal; he explained that the
medical evidence as a whole demonstrated that Bradley had “normal motor
strength, reflexes, and sensation” and “normal ambulation,” and that Bradley “had
no restrictions of activities of daily living resulting from his mental impairments
and only mild difficulties in maintaining social functioning.” The ALJ also stated
that Bradley was not a “persuasive witness” because he exaggerated his claims of
pain and depression, and that Bradley’s depression and thoughts of suicide were
“understandable” because of the emotional impact of being forced to sell his dairy
herd.
In reviewing the ALJ’s decision, we are limited to examining whether it is
supported by substantial evidence. Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir.
2005). “Substantial evidence” means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Id. Although we may not re-
weigh the evidence or substitute our judgment for that of the ALJ, the ALJ must at
No. 05-2719 Page 4
least minimally articulate his analysis with enough detail and clarity to permit
meaningful appellate review. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).
Bradley presents four challenges to the ALJ’s decision. He first asserts that
the ALJ failed to account for his fibromyalgia and CFS at step two, which requires
Bradley to establish that he has a “medically severe impairment or combination of
impairments” that significantly limit his ability to work. See 20 C.F.R.
§§ 404.1520(a)-(c); 416.920(a)-(c). However, step two is a threshold analysis that
requires Bradley to show only that he has one severe impairment. See
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (“Having found that
one or more of [appellant’s] impairments was ‘severe,’ the ALJ needed to consider
the aggregate effect of the entire constellation of ailments.”); Hickman v. Apfel, 187
F.3d 683, 688 (7th Cir. 1999) (“[I]t is quite apparent that severity is merely a
threshold requirement.”). The ALJ did find that Bradley had a severe
impairment—he found, in fact, that Bradley had several severe impairments—and
accordingly proceeded at step three to examine whether any of Bradley’s
impairments qualified as a listed impairment. It is thus irrelevant that the ALJ did
not make a specific step two finding for Bradley’s claims of fibromyalgia and CFS.
Bradley next argues that the ALJ erred by not affording the RFC
assessments of Dr. Bridges and Dr. Kansal controlling evidentiary weight without
explanation. This error, Bradley suggests, was prejudicial because their
assessments demonstrate that his fibromyalgia and CFS were disabling
impairments.
An ALJ gives controlling weight to a treating physician’s opinion only if “it is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.” White v.
Barnhart, 415 F.3d 654, 659 (7th Cir. 2005). A “treating physician,” in turn, is a
physician who has provided medical treatment or evaluation, and who has, or has
had, an ongoing relationship with the claimant. Id. at 658. When a treating
physician’s views are inconsistent with substantial evidence, the ALJ is free to
credit conflicting views instead. Dixon, 270 F.3d at 1177.
Despite Bradley’s arguments to the contrary, the ALJ did give reasons for
discounting the RFC assessments offered by Dr. Bridges and Dr. Kansal. The ALJ
discounted Dr. Bridges’s assessment because he did not treat Bradley for
fibromyalgia in 1999 and because his conclusions contradicted substantial evidence
in the record. For instance, the ALJ stated that Dr. Bridges contradicted
contemporaneous clinic notes in the record from the other physicians and nurse
practitioners who, unlike Dr. Bridges, did examine Bradley. The ALJ further noted
that Dr. Bridges’s conclusions were inconsistent with the written opinions of two
independent physicians who, after having reviewed the record, agreed that Bradley
No. 05-2719 Page 5
could perform light work. Regarding Dr. Kansal, the ALJ noted that he did not
treat Bradley for depression until 2001, two years after the alleged onset date.
Accordingly, Dr. Kansal was not a treating physician for the purposes of Bradley’s
depression claim, see White, 415 F.3d at 658-59, and thus the ALJ did not err in
declining to award controlling weight to his assessment, see id.; Dixon, 270 F.3d at
1177.
Bradley next asserts that the ALJ erred by summarily rejecting his
testimony as “unpersuasive.” According to Bradley, the ALJ impermissibly “played
doctor” and reached erroneous conclusions regarding his depression and thoughts of
suicide; namely, that his depression and thoughts of suicide were understandable
given the emotional impact of being forced to sell his dairy herd.
An ALJ is best positioned to determine a witness’s truthfulness, and we will
not overturn an ALJ’s credibility determination unless it is “patently wrong.” See
Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004). We will affirm an ALJ’s
credibility finding so long as the ALJ gives specific reasons for the finding that are
supported by the record. Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787
(7th Cir. 2003).
Our review of the record reveals that the ALJ did explain why he found
Bradley’s testimony to be “unpersuasive.” The ALJ noted that Bradley’s testimony
described his pain from fibromyalgia as being more intense than what was written
in the contemporaneous clinic notes of his treating physicians. The ALJ also stated
that the clinic notes did not support Bradley’s claim that he would miss two or more
work days per month; the notes rather regularly referred to Bradley working
around the home or on the farm, and Bradley himself described how he would
homeschool his youngest son. Although the ALJ’s comments regarding the causes
of Bradley’s depression and suicidal inclinations may not have been entirely
appropriate, see Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“[J]udges,
including administrative law judges of the Social Security Administration, must be
careful not to succumb to the temptation to play doctor.”), Bradley does not point to
an instance at which the ALJ relied on those comments in making his adverse
credibility determination. Thus, the ALJ was not “patently wrong” that Bradley
was an “unpersuasive witness.” See Barnett, 381 F.3d at 670.
Finally, Bradley argues that the ALJ erred in the fifth step of his analysis by
adopting the vocational expert’s opinion that he could perform “low-stress work”
without accounting for Bradley’s individual ability to cope with stress. Here,
Bradley relies on Social Security Ruling 85-15, which states that “stress is a highly
individualized phenomenon” that must be assessed as such in any hypothetical
posed to a vocational expert. Bradley argues that the ALJ’s incomplete hypothetical
stemmed from the failure to evaluate Bradley’s mental impairments according to 20
No. 05-2719 Page 6
C.F.R. § 404.1520a(c)(3) (which Bradley labels the “special technique”). This
regulation requires ALJs to rate the degree of a claimant’s functional limitation in
four respects: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation.
Bradley’s claim that the ALJ did not follow the regulation’s “special
technique” fails. As the Commissioner points out, the ALJ did address in his
decision the four categories of functional limitation specified in 20 C.F.R.
§ 404.1520a(c)(3). Bradley’s argument that the ALJ’s hypothetical was incomplete
is equally meritless. When a judge poses a hypothetical question to a vocational
expert, the question must include all limitations supported by the record, see Steele
v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002), including work-related stress, S.S.R.
85-15; see also Allen v. Barnhart, 417 F.3d 396, 405 (3d Cir. 2005). A hypothetical
question that does not include all limitations supported by the record is
fundamentally flawed, and a decision that a claimant can adjust to other work
cannot stand if it is based on a flawed hypothetical. Young v. Barnhart, 362 F.3d
995, 1005 (7th Cir. 2004). However, an incomplete hypothetical question may be
cured by showing that the vocational expert reviewed the claimant’s medical
records prior to testifying and that the records contained the omitted information.
Steele, 290 F.3d at 942.
The hypothetical question did not need to specifically address Bradley’s
inability to cope with work-related stress because his inability to cope with stress
was not supported by the record. Steele, 290 F.3d at 942. Bradley has not pointed
to anything in the record that suggests he is unable to cope with work-related
stress. He rather merely directs us to the RFC assessments of Dr. Kansal and Dr.
Bridges stating that his ability to work depends on the amount of pain caused by
his fibromyalgia; they nothing about his ability to cope with work-related stress.
Moreover, even if Bradley could produce evidence demonstrating that he is
unable to cope with work-related stress, the ALJ’s error in failing to define “low-
stress work” is harmless. Bradley argues correctly that the ALJ erred by adopting
the vocational expert’s definition of the term “low-stress work” (“[o]ne- or two- step
jobs”), and thus did not account for Bradley’s individualized reaction to stress.
Young, 362 F.3d at 1004-05 & 1004 n.4 (“[T]he hypothetical question was flawed in
that it purported to tell the vocational expert what types of work [claimant] could
perform rather than setting forth [claimant’s] limitations and allowing the expert to
conclude on his own what types of work [claimant] could perform.”). However, this
deficiency is cured because the vocational expert reviewed all of the exhibits entered
into the record and stated that his review of the record formed the basis of his
testimony. Because the record includes numerous psychological assessments of
Bradley and none referred to his inability to cope with stress, cf. Ragsdale v.
Shalala, 53 F.3d 816, 818-21 (7th Cir. 1995) (“The record contained repeated
No. 05-2719 Page 7
references to the claimant’s age. Thus, the D.C. Circuit recognized that an omission
from a hypothetical question can be resolved by a record showing that prior to
testifying the vocational expert reviewed the portion of the administrative record
containing the omitted information.”), the ALJ did not err by adopting the
vocational expert’s definition of “low-stress work,” Steele, 290 F.3d at 942.
The judgment of the district court is AFFIRMED.
.