Liskowitz v. Astrue

• Citation: 559 F.3d 736
• Decision Date: 24 March 2009
• Docket Number: No. 08-1576.,08-1576.
• Parties: Lora LISKOWITZ, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

559 F.3d 736

Lora LISKOWITZ, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 08-1576.

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2008.

Decided March 24, 2009.

Barry A. Schultz, Attorney (argued), Law Offices of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff-Appellant.

Suzanne E. Lohmeyer Duman, Attorney (argued), Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

Lora Liskowitz applied for disability insurance benefits more than eight years ago. An administrative law judge initially denied her claim, was reversed by the district court and subsequently denied her claim following a second administrative hearing. The district court affirmed the ALJ's second decision. Although this second decision is less clear than it might have been, the decision was supported by substantial evidence. We affirm.

I.

Lora Liskowitz was born with a congenitally deformed left hip. As a consequence of her hip condition, she underwent multiple surgical procedures as a child, including a procedure when she was twelve to equalize the length of her legs by removing "growth material" from her right tibia and femur plates. She reports that she has experienced pain in her knee, hips and back ever since. In spite of the pain, she was able to work for fifteen years in her parents' waterbed factory, splitting her time between the upholstery shop and the factory office, where she performed basic clerical tasks. However, she stopped working in 1998 because, by her own account, her pain grew progressively worse, and she became incapable of performing even sedentary clerical tasks.

Liskowitz testified that since she stopped working, she has been bedridden for all but a few hours each day and that she can remain seated without discomfort only for ten minutes at a time. Her assessment of her own condition is at least partly corroborated by her rheumatologist, Doctor Joseph Bretza. Liskowitz began seeing Bretza in 2003, after she initially tested positive for rheumatoid arthritis. In 2004, Bretza completed a questionnaire in which he indicated that Liskowitz can remain seated only for an hour at a time, that she can use her hands only for twenty percent of an eight-hour work-day and that she has suffered from these limitations since 1998.

The record shows, however, that prior to 2003, Liskowitz was more functionally capable than she now admits. For instance, in 2000 her examining physician noted, contrary to Bretza's retrospective assessment, that Liskowitz had no significant upper extremity limitations. Between 2001 and 2003, multiple healthcare providers noted that she was fully able to perform household and child care duties, and was not otherwise limited in activities of daily living. And in 2003, a healthcare provider — apparently a nurse practitioner — noted that Liskowitz had lost weight since giving birth to her third child, and that her exercise regime included "some walking."

Liskowitz's own statements also belie her claim that she has been incapable of sedentary activity since 1998. In 2000, she told her doctors at the Milwaukee Medical Clinic that she does "a lot of squatting, kneeling and lifting off the floor of her young children," who were five and seven months at the time.¹ She expanded on this claim at her initial administrative hearing in 2001, where she admitted that she alone was responsible for the care of her children, and testified that she walked or drove her eldest daughter to school, changed diapers, made lunch and occasionally dinner, did some vacuuming and dusting, washed dishes, did laundry and shopped for groceries. She also testified that she was able to control her pain by taking Celebrex and Vicodin. (As she stated at the time, "[t]he Celebrex is awesome.")

Two state agency physicians concluded that Liskowitz was capable of standing for two hours and sitting for six hours in an eight-hour workday. The ALJ concurred, finding that she was capable of sedentary work and that her testimony to the contrary was not credible. Liskowitz appealed the ALJ's decision, and in 2004 the district court remanded the case for a new administrative hearing based on problems with the testimony of an expert witness. However, the district court affirmed the ALJ's findings regarding Liskowitz's credibility. (Liskowitz does not challenge, or indeed even mention, this aspect of the district court's 2004 decision on appeal.)

Following the remand, Liskowitz appears to have changed her theory of the case. In the second hearing, Liskowitz emphasized swelling and pain in her hands, which she did not even mention in the first hearing, as evidence of her disability. Based in part on her previous factual findings, the ALJ refused to fully credit either Liskowitz's own testimony or the corroborating testimony of her rheumatologist. Instead, the ALJ found that Liskowitz remained capable of sedentary work through December 2002, when her insured status expired. The ALJ credited the testimony from an expert witness who identified 4,000 unskilled jobs in the Milwaukee area that a person with Liskowitz's background and limitations would have been capable of performing. The Appeals Council denied review.

II.

The ALJ denied benefits initially in 2001, and again in 2005. Only the 2005 decision is at issue here. Because the Appeals Council declined to review the ALJ's second ruling, this ruling constitutes the Agency's final decision. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). We review this decision directly without giving deference to the district court's decision. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.2008). We will uphold the ALJ's decision if it is supported by "substantial evidence," see 42 U.S.C. § 405(g), which means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

To qualify for disability benefits, a claimant must be "disabled," 42 U.S.C. § 423(a)(1)(E), which the Social Security Act defines as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. at § 423(d)(1)(A). Further, a claimant must show that the disability arose while he or she was insured for benefits. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1); Sienkiewicz v. Barnhart, 409 F.3d 798, 802 (7th Cir. 2005) (per curiam).²

Social Security regulations prescribe a five-step test for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. Only the fifth step — which requires the ALJ to determine the claimant's residual functional capacity and to ascertain whether there are a significant number of jobs that the claimant could perform — is at issue here.

A.

In considering whether a claimant is capable of work, an ALJ must determine the claimant's "residual functional capacity," which is the work he or she can still do despite her physical and mental limitations. 20 C.F.R. § 404.1545(a); Hickman v. Apfel, 187 F.3d 683, 688-89 (7th Cir. 1999). In the present case, because the ALJ found that Liskowitz was capable of sedentary work in April 2001 and Liskowitz has not challenged this finding on this appeal, our review is limited. The only question that remains is whether there was substantial evidence for the ALJ's determination that Liskowitz's condition did not become dramatically worse in the roughly one and one-half years between the ALJ's first decision and expiration of Liskowitz's insured status.

Liskowitz argues that it was error for the ALJ to refuse to credit her own testimony regarding her functional limitations. We are not persuaded. First, and most obviously, the ALJ had found Liskowitz to be a non-credible witness in the first hearing, and was entitled to rely on this finding in the second hearing. See Berger v. Astrue, 516 F.3d 539, 546 (7th Cir.2008) (an ALJ is entitled to view the testimony of an applicant who has been deceptive with skepticism). This is not to say that having found Liskowitz to have exaggerated her symptoms once, the ALJ could automatically disregard her testimony in the second hearing. But this is not what happened here. Instead, the ALJ found that Liskowitz's testimony at the second hearing was inconsistent both with the ALJ's prior findings and with Liskowitz's own testimony during the first hearing. Having already found the witness to have exaggerated her symptoms, and having reasonably observed that the witness's account of those symptoms materially changed from the first hearing to the second, there was nothing improper about the ALJ's adherence to her previous credibility determination.

But even if it were somehow improper for the ALJ to adhere to her previous credibility assessment, this would still not justify a second remand. A second problem with Liskowitz's argument is that her testimony at the second hearing did not speak to the one narrow point regarding her functional limitations that was still at issue in the second hearing. Again, the ALJ had previously found that Liskowitz was capable of sedentary work prior to 2001. Liskowitz appealed this finding to the district court and lost. She has not pursued her challenge to the ALJ's 2001 findings in this appeal. Thus, to be entitled to disability benefits, Liskowitz would have had to show that her condition became dramatically worse between 2001, when the ALJ rendered her initial decision, and 2002, when Liskowitz's insured status expired. However, Liskowitz had practically nothing to say during the second hearing about how her condition had changed. On the contrary,...