Schaaf v. Astrue

• Decision Date: 26 April 2010
• Docket Number: No. 09-2820.,09-2820.
• Citation: 602 F.3d 869
• Parties: Sean T. SCHAAF, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

602 F.3d 869

Sean T. SCHAAF, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 09-2820.

United States Court of Appeals, Seventh Circuit.

Argued January 26, 2010.

Decided April 26, 2010.

Timothy T. Sempf, Attorney (argued), Novitzke, Gust, Sempf & Whitley, Amery, WI, for Plaintiff-Appellant.

Gary A. Sultz, Attorney, Elizabeth Barry, Attorney (argued), Social Security Administration Office of the Regional Chief Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before BAUER, POSNER, and KANNE, Circuit Judges.

PER CURIAM.

Sean Schaaf applied for Social Security disability benefits after he lost partial use of one arm in a snowmobile accident, claiming that he no longer could perform his past job as a mason or any other job. The Social Security Administration denied his claim after an Administrative Law Judge (ALJ) found that Schaaf can still perform light work. The district court upheld that decision. On appeal Schaaf argues that the ALJ gave too little weight to both his treating physician's opinion and his own testimony about his physical limitations. We affirm the judgment.

I. BACKGROUND

In February 2005 at age 31, Schaaf overturned his snow-mobile and suffered a slight concussion and injuries to his back, chest, left arm, and right knee. Most of the injuries healed with time, but the arm and knee required surgery. Schaaf had damaged the nerves in his left brachial plexus, and the injury weakened the muscles in his shoulder and arm, leaving him with the use of his hand but unable to flex the arm or raise it in front of him. After physical therapy did not significantly improve mobility in that arm, Schaaf underwent nerve-transfer surgery in July 2005 in an attempt to regain more function in the muscles. Early the next year he also had reconstructive surgery on the torn ligaments in his right knee because, although he had regained nearly normal functioning, the knee still hurt when he ran.

Meanwhile, just weeks after the accident, Schaaf had applied for disability benefits, claiming that his left arm was paralyzed and his right knee impaired to a degree that prevented him from working. The Social Security Administration denied his application initially in June 2005, and, after retaining a lawyer, Schaaf requested reconsideration. Reconsideration was denied, and Schaaf requested a hearing before an ALJ.

The ALJ conducted the hearing in November 2007. The evidence before the ALJ included information from Schaaf and his mother as well as surgical records and notes from Schaaf's family doctor. In a Physical Activities Questionnaire completed just 4 months after the accident, Schaaf reported that he attended to his own personal hygiene, did his own shopping, and occasionally went fishing. But he complained that he was unable to rake or sweep and could not "do much" because of the accident. He said that pain prevented him from leaving the house more than once a day and kept him from sleeping more than 4 to 6 hours a night. Sometimes, he added, he napped for up to an hour a day. Schaaf also reported that he lived alone with his 3-year-old son, but he did not detail his caretaking responsibilities until he updated his application in March 2006. In that update Schaaf said that his arm injury had worsened after the surgery in July 2005. Nonetheless, he was getting his son ready in the morning for preschool, driving him most days to the bus stop 15 miles away, and preparing his breakfast and dinner. Schaaf complained, however, that he was unable to "do anything that requires two hands" and as a consequence was very depressed. He further reported that he experienced "constant pain—total discomfort at all times"— that affected his sleep. Schaaf's mother confirmed in her report on Schaaf's functioning that she helped him with housework and that he complained of constant pain.

The record before the ALJ also included Schaaf's medical records from the time of the accident through early 2006, shortly after his knee surgery. After the injury, doctors had prescribed Neurontin, a nerve-pain drug, and Percocet, a narcotic pain reliever. See Mayo Clinic, Gabapentin (Oral Route), http://www.mayoclinic.com/ health/drug-information/DR600709 (last visited Apr. 19, 2010) (Neurontin); PHYSICIANS' DESK REFERENCE 1127 (63d ed. 2009) (Percocet). It is unclear how long Schaaf took Neurontin, but the medical records document his use of Percocet (or its generic) almost continuously after the accident. The physical therapist's notes detail Schaaf's progress until the nerve-transfer surgery. A few months after that surgery, Schaaf was referred back to physical therapy. But after his first evaluation in October 2005 he never returned and was discharged for noncompliance. A few months later, Schaaf had reconstructive surgery on his knee, but the record contains no post-surgery updates.

The medical record also includes progress notes from Dr. John Ingalls, Schaaf's personal physician, for the period from March 2005 through November 2007. Most of the entries document requests to refill prescriptions for pain medications, but in September 2005 Schaaf was examined, complaining of pain in his left arm at a level of 8 or 9 out of 10. Ingalls noted that Schaaf had been out of Percocet for 6 weeks and prescribed physical therapy (which Schaaf did not attend), more Percocet, and Gabapentin (the generic of Neurontin). After that Schaaf received almost monthly refills of Percocet, 90 pills at a time. He was not seen again for pain until July 2006 when, for the first time, he also complained of insomnia. Ingalls prescribed Benadryl for the insomnia and once more instructed Schaaf to get physical therapy. Ingalls's treatment notes suggest that Schaaf went to physical therapy: "Treated by Robyn M. Formanek PT, MA. Has been trying to work. Lifting increases arm and neck pain." But absent from the record are notes or other documentation from the physical therapist, so it is impossible to say whether the results noted by Ingalls were communicated to him by the therapist or by Schaaf. Ingalls also examined Schaaf in November 2007— a few days in advance of the hearing before the ALJ—to assess his ability to work. At that appointment Schaaf told Ingalls that he typically takes Percocet at bedtime and as needed for pain, 3 pills at a time. Ingalls noted that Schaaf complained of chronic pain that he said caused insomnia. Ingalls concluded that Schaaf's pain and loss of mobility had led to "chronic fatigue and insomnia" and prescribed a new pain medication, Lyrica.

The ALJ considered three assessments of Schaaf's residual functional capacity: a November 2007 assessment from Dr. Ingalls and two assessments from state-agency physicians who reviewed Schaaf's medical records, first in June 2005 and later in May 2006. All three physicians agreed that only the arm injury affected Schaaf's ability to work, and only the doctor who reviewed his file in 2006 thought that Schaaf could not use his left arm at all. The first state-agency physician had concluded that Schaaf could feel with his left hand, and Ingalls gave an even more-positive assessment; he reported that Schaaf could perform fine manipulations, limited grasping, occasional carrying of up to 20 pounds, and occasional reaching at or below shoulder level. Both of the state-agency physicians concluded that Schaaf could perform one-armed light work. Ingalls did not opine about the level of work that Schaaf could perform but, consistent with the other physicians, represented that Schaaf was unrestricted in other areas, such as walking, sitting, standing, bending, crouching, or operating machinery. Ingalls, though, checked yes when asked if there would be some days during "an average month" when Schaaf "would not be able to work at all." Ingalls speculated that Schaaf would miss a week or more per month but did not elaborate. The state-agency physicians used a different form that did not have this question.

At the hearing the ALJ heard testimony from Schaaf and a vocational expert. Schaaf testified that he was unable to work because of his arm injury, pain, and lack of sleep and said that he relies on his mother and friends to take care of his house. The ALJ asked Schaaf what he does with his time, and he responded, "Not much," without listing any activities that he does do. In response to his attorney's questioning, Schaaf reported that he is unable to sleep more than 1 to 3 hours a night because of the pain, which he described as rating a 10 out of 10. He said his medication does not take away the pain but makes him relax and forget about it. Then the ALJ asked Schaaf if he had participated in services from the Division of Vocational Rehabilitation, Wisconsin's job-assistance program for people with disabilities, and Schaaf responded that he started the process but did not follow through because, even though the program would pay for gas, he "didn't have the ride."

Next, the ALJ presented two hypotheticals to the vocational expert. In one, the ALJ asked whether unskilled, light-work jobs were available for someone whose use of his left arm was limited to carrying 20 pounds, occasional reaching and fine manipulation, and frequent simple grasping. In the other, the ALJ posited no use of the left arm. In both cases the vocational expert testified that such a person could not perform Schaaf's former work as a mason. But he identified cashier as a job for a person with restricted use of one arm and security monitor for a person with limited to no use of one arm. Then, in response to questions by Schaaf's attorney, the vocational expert acknowledged that a person with "an impairment in concentration as a result of lack of sleep and medication" would not be able to be a security monitor. He also conceded that a person who missed a week of work per month would not be employable.

The ALJ, applying the 5-step analysis for evaluating disability, see 20...