Jeffrey D. Hlebechuk v. Kenneth S. Apfel , 18 F. App'x 446 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-3892ND
_____________
Jeffrey D. Hlebechuk, *
*
Appellant, * On Appeal from the United
* States District Court
v. * for the District of
* North Dakota.
Larry G. Massanari, Acting *
Commissioner, Social Security * [Not To Be Published]
Administration,1 *
*
Appellee. *
___________
Submitted: July 20, 2001
Filed: September 7, 2001
___________
Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and BYE, Circuit
Judges.
___________
PER CURIAM.
1
On March 29, 2001, the President designated Larry G. Massanari as Acting
Commissioner of the Social Security Administration. Accordingly, he is substituted as
party appellee in place of Kenneth S. Apfel. See Fed. R. App. P. 43(c)(2).
Jeffrey D. Hlebechuk appeals the District Court’s2 order affirming the
Commissioner’s denial of disability insurance and Supplemental Security Income
benefits under the Social Security Act. We affirm.
Mr. Hlebechuk was born in December 1957. He has a high school education and
past work experience as a milling-company bagger, a maintenance worker, and a
laborer. In 1992, he underwent surgery for upper extremity bilateral carpal tunnel
repair and left ulnar nerve transposition. He previously applied for disability benefits,
claiming a disability onset date of November 1992. This application was denied, and
the present case involves a new application for benefits, claiming he was disabled on
or after March 16, 1995, the day after the date of the Commissioner's previous
decision.
Following a hearing held on January 20, 1998, an administrative law judge found
that Mr. Hlebechuk's upper extremity impairments were severe, but that an umbilical
hernia was not. The ALJ also found that past diagnoses of personality disorders did
not establish any severe mental impairments. The ALJ discounted Mr. Hlebechuk's
allegations of debilitating pain and determined that he retained the residual functional
capacity (RFC) to perform light work that did not involve repetitive use of the left
upper extremities for other than assistive purposes. In making this determination, the
ALJ considered the opinions of two state agency physicians that Mr. Hlebechuk could
perform light work. The ALJ found that although Mr. Hlebechuk could not perform his
past relevant work, the testimony of a vocational expert established that there were
significant jobs in the economy that he could perform, and thus that he was not disabled
under the Act. This became the final decision of the Commissioner, and judicial review
was sought.
2
The Hon. Rodney S. Webb, Chief Judge, United States District Court for the
District of North Dakota, adopting the report and recommendation of the Hon. Karen
K. Klein, United States Magistrate Judge for the District of North Dakota.
-2-
On appeal from the District Court's affirmance of the Commissioner's decision,
Mr. Hlebechuk first argues that the ALJ erred in not including his psychological
problems in the hypothetical question posed to the vocational expert. He relies on a
report from October 1995 by a psychiatrist to whom he was referred for evaluation of
possible depression. He was assessed as having anti-social, paranoid, and explosive
personality traits. The report noted that Mr. Hlebechuk did not give a clear history of
depression, but did give a history of repetitive confrontations with employers. Mr.
Hlebechuk was not placed on any psychotropic medication, and follow-up was to be
on an as-needed basis. Mr. Hlebechuk argues that because of his explosive temper it
is inconceivable that an employer would hire him at the sample jobs suggested by the
vocational expert — a security guard or parking lot attendant.
We conclude that the hypothetical was not flawed for failing to refer to Mr.
Hlebechuk's alleged depression. "[A] vocational expert need only consider
impairments supported by substantial evidence in the record and accepted by the ALJ
as true." Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001); see also Goose v. Apfel,
238 F.3d 981, 985(8th Cir. 2001) (rejecting claim that ALJ erred in not including in
hypothetical to vocational expert fact that claimant would routinely get frustrated and
walk off the work site). Here there was sufficient evidence to support the ALJ's
conclusion that Mr. Hlebechuk did not suffer from a severe mental impairment.
Mr. Hlebechuk next contends that the ALJ did not fully and fairly develop the
record regarding his allegations that he can not work full time because of his disabling
condition. This argument also fails, because there was enough evidence in the record
to determine whether his alleged medical and mental impairments were disabling. See
20 C.F.R. § 404.1517.
The claimant next argues that the ALJ improperly discredited his complaints of
disabling pain. We disagree. After citing the factors in Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984), the ALJ specified multiple inconsistencies in the record on
which he relied to discredit Mr. Hlebechuk. The claimant testified that he took no
-3-
significant pain medication, and that he had been working 20 hours a week since
August 1997 as a kitchen helper in a bar.3 See Hogan v. Apfel, 239 F.3d 958, 962 (8th
Cir. 2001) (deference to ALJ’s opinion is appropriate when ALJ explicitly discredits
claimant and gives good reasons for doing so). The ALJ did consider some pain as a
factor, as light work requires little physical exertion. See 20 C.F.R. § 404.1567(b).
Finally, Mr. Hlebechuk asserts that the ALJ did not accord the weight due to his
treating hand surgeon's letter based on an examination on December 31, 1997. This
letter states that Mr. Hlebechuk had full range of motion about his wrists and all his
fingers, and that his grip was in the 90-120 pound range on the right, and the 15-20
pound range on the left. The letter expressed uncertainty as to the origin of Mr.
Hlebechuk's complained-of pain and opined that it was "unlikely that [Mr. Hlebechuk]
will be able to use his left hand for anything other than a light assist in the future." We
do not believe that this opinion was inconsistent with the ALJ's findings.
In sum, our review of the record as a whole, see Dunahoo v. Apfel, 241 F.3d
1033, 1037 (8th Cir. 2001) (standard of review), shows that the ALJ properly
considered Mr. Hlebechuk’s testimony as to his alleged work-related restrictions (to
the extent it was not discredited), the observations of his treating physician, and the
medical records, as required. See 20 C.F.R. §§ 404.1545(a), 404.1546 (responsibility
for determining residual functional capacity rests with ALJ; determination should be
based on all relevant evidence, including claimant’s own description of limitations,
observations of treating physicians and others, and medical records). The ALJ's
determination is supported by substantial evidence on the record as a whole.
3
This did not qualify as "substantial gainful activity," precluding a finding of
disability under the Act, because Mr. Hlebechuk earned only $464.00 per month,
whereas substantial gainful activity is defined as work earning at least $500.00 per
month. See 20 C.F.R. § 404.1574(b)(2).
-4-
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-