Bradley Shideler v. Michael Astrue

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3284

B RADLEY M. S HIDELER,

Plaintiff-Appellant,

v.

M ICHAEL J. A STRUE, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 10 CV 384—Robert L. Miller, Jr., Judge.

A RGUED F EBRUARY 15, 2012—D ECIDED JULY 20, 2012

Before P OSNER, F LAUM, and M ANION, Circuit Judges.

M ANION, Circuit Judge. Bradley Shideler suffers from

osteogenesis imperfecta, also called “brittle bone disease.” In

2006, he applied for Social Security Disability Insurance

benefits, and after holding an evidentiary hearing, the

Administrative Law Judge (“ALJ”) found that despite

Shideler’s limitations, there were a sufficient number

of jobs in the regional economy available to a person

with his restrictions, and denied his application. When

2 No. 11-3284

the Appeals Council denied review, the ALJ’s decision

became the final decision of the Social Security Com-

missioner, and Shideler sought relief from the federal

district court. The district court affirmed the Commis-

sioner’s decision, and Shideler now appeals to this court.

Because there is substantial evidence in support of the

decision to deny benefits, we affirm.

I.

Bradley Shideler suffers from osteogenesis imperfecta, a

genetic disorder known colloquially as “brittle bone

disease.” Shideler applied for Social Security Disability

Insurance benefits in October 2006 under Title II of the

Social Security Act, 42 U.S.C. § 423(d), alleging a disability

onset date of June 30, 1995. His date last insured was

March 31, 2000. The Social Security Administration

denied his application, and Shideler requested an ad-

ministrative hearing.

The hearing took place on March 24, 2009. Shideler was

represented by counsel, and Shideler, Shideler’s room-

mate, and a vocational expert all testified at the hearing.

At the time of the hearing, Shideler was 48 years old and

lived in Angola, Indiana. Shideler testified that he

suffered 55 fractured bones over the course of his life

and that his back pain was a constant 10 out of 10 on the

pain scale. He indicated that he used over-the-counter

ibuprofen and glucosamine to manage his pain, though

at one point he was using Ultram and liquid codeine.

Regarding his capacity to take care of himself, Shideler

testified that he could take care of his personal needs

No. 11-3284 3

(such as bathing and showering) and was able to drive.

Although he could not cook, he did take care of his own

laundry. He stated that he could reach forward with his

arms, but not around or behind him, and that it was

difficult to use utensils such as forks due to his hands

cramping. Shideler testified that he could not stand for

more than ten minutes at a time, could only walk for ten

to fifteen minutes before needing to sit down, and

could only sit for twenty minutes at a time. He indicated

that he needed to lie down for at least an hour several

times a day. Shideler stated that he worked as a carpet

cleaner for approximately four months in 1997 and later

as a rental consultant for three years.

Shideler’s roommate also testified at the hearing. He

stated that it was difficult for Shideler to function or

lift anything (such as a crock pot) and that Shideler con-

stantly broke his fingers. Shideler added that his

fingers were bent badly and that when he broke a finger

he usually set it himself. Dr. Robert Barkhaus testified

as a vocational expert at the hearing. His testimony

indicated that Shideler’s past work experience (three

years as a rental consultant, and four months as a carpet

cleaner) was light and unskilled. The ALJ asked the

vocational expert to assume a person of Shideler’s age,

education, and work experience who could perform a

restricted range of sedentary work with the following

restrictions: never climb ladders, ropes, or scaffolds and

only occasionally climb ramps or stairs; never crouch,

kneel or crawl; never perform overhead reaching; avoid

exposure to extreme heat and cold; and perform work

that includes occasional, but not frequent, use of his

4 No. 11-3284

fingers. With those restrictions, the vocational expert

testified that a person with these restrictions could

perform such representative jobs as that of a credit clerk

(approximately 100 jobs existing in the Northeastern

Indiana region); an order clerk (approximately 150 jobs

in the region); and a telephone clerk (approximately

100 jobs in the region).

The ALJ then added several restrictions to the above

list, asking the vocational expert what jobs would be

available if the list above included a “sit/stand” op-

tion, occasional but not frequent fingering, and some

reaching forward. The vocational expert testified that the

additional restrictions would eliminate most sedentary

jobs that the claimant could perform, ultimately leaving

a surveillance clerk position as the only available job.

He estimated that approximately 150 surveillance clerk

positions existed in the regional economy. The ALJ

further asked if there were any jobs available for a

person with the above restrictions who was also

unable to work a full eight-hour day without needing

two to three additional breaks over and above the

normal thirty-minute lunch break and two fifteen-minute

breaks. The vocational expert testified that there would

be no jobs available under those restrictions.

Despite his statement at the hearing that he had

broken at least 55 bones over the course of his life, the

record shows that Shideler had only four surgeries—two

surgeries in 1973 and 1974 repairing broken elbows, a

surgery in 1976 reconstructing Shideler’s right foot, and

a surgery on his left knee in 1999. The 1999 surgery,

No. 11-3284 5

which was performed prior to Shideler’s date last

insured in March 2000, was necessitated by an injury

Shideler sustained in a motorcycle accident. Shideler

made a full recovery from that surgery and his surgeons

released him to work without restrictions. The surgeon

noted that Shideler suffered from osteogenesis imperfecta

but had not had any fractures for several years. Indeed,

subsequent appointments with the surgeon indicated

that Shideler recovered very well from this surgery,

and one report from December 1999 showed that

Shideler had no pain and was not taking any pain med-

ication.

The record contains no evidence that Shideler visited

any doctors between May 2000 and December 2006. On

December 19, 2006, a state physician completed a Physical

Residual Functional Capacity Assessment of Shideler,

which stated that, in the doctor’s opinion, Shideler

could perform medium work and could even occa-

sionally climb scaffolds or ladders. Shideler next saw

an orthopedic surgeon shortly after his hearing

in April 2009, since he had recently been approved for a

state-sponsored health plan. At this appointment, the

doctor diagnosed Shideler with scoliosis of the lower

spine and noted that Shideler had deformities consistent

with osteogenesis imperfecta, but made no mention of

other issues such as problems with Shideler’s fingers or

hands. The doctor did note that Shideler complained of

“kind of intermittent” thoracic back pain and that he

described his pain as a dull ache that worsened with

activity, which contradicts Shideler’s testimony at his

hearing that his pain was a constant 10 out of 10. The

6 No. 11-3284

doctor’s report indicated that Shideler treated his pain

with over-the-counter anti-inflammatory medication, and

prescribed Mobic (a non-steroidal anti-inflammatory)

for Shideler’s pain. The doctor recommended six to

eight sessions of physical therapy for Shideler and pre-

scribed a home exercise and spinal stabilization pro-

gram, but did not recommend any surgery for Shideler

and released him to work without any restrictions.

The ALJ gave the parties the opportunity to sup-

plement the record following the March 2009 hearing,

and Shideler supplemented the record with the results

from his appointment with an orthopedic surgeon in

April 2009. In May 2009, the ALJ issued a decision

denying benefits because she found that Shideler was

not disabled from 1995 through March 31, 2000, his date

last insured, within the meaning of the Social Security

Act. The ALJ’s decision followed the standard five-step

sequential evaluation specified in 20 C.F.R. § 404.1520.

The ALJ concluded that “the claimant’s and his witness’

statements concerning the intensity, persistence and

limiting effects of [his] symptoms are not persuasive

because the statements are not supported by the

medical and other evidence of record.”

In reaching her decision, the ALJ granted Shideler a

large number of restrictions, concluding

that, through the date last insured the claimant had

the residual function capacity to perform sedentary

work as defined in 20 CFR 404.1567(a) but . . . that

the claimant can never crouch, kneel, crawl or

climb ladders, ropes, or scaffolds; can only occa-

No. 11-3284 7

sionally climb ramps or stairs; cannot do any

overhead reaching; is limited to frequent but not

constant fingering of small objects; must avoid expo-

sure to extremes of cold, heat, humidity and unpro-

tected heights. In addition, the claimant is limited

to simple, routine tasks.

Even with these restrictions, the vocational expert had

testified that a significant number of jobs existed in the

regional economy that could be performed by someone

with Shideler’s capacity as of his date last insured in

March 2000, including that of a credit clerk, an order

clerk, and a telephone clerk. Accordingly, based on her

review of Shideler’s testimony, his roommate’s testi-

mony, the medical and other record evidence, and the

vocational expert’s testimony, the ALJ concluded that

a finding of “not disabled” was appropriate, and denied

disability insurance benefits.

Shideler sought review, but the Appeals Council denied

Shideler’s request in July 2010, making the ALJ’s decision

the final decision of the Commissioner of Social Security.

Shideler then brought an action in the district court

seeking judicial review of the decision, and the dis-

trict court affirmed the Commissioner’s decision in

August 2011. This appeal followed. Shideler challenges

the ALJ’s conclusion that he was not disabled prior to

March 31, 2000, arguing that the ALJ’s findings were

not supported by substantial evidence.

8 No. 11-3284

II.

We review de novo the district court’s judgment af-

firming the Commissioner’s decision. Skinner v. Astrue,

478 F.3d 836, 841 (7th Cir. 2007). In assessing the ALJ’s

decision, we apply a deferential standard, reviewing

the decision “to see if it is supported by ‘substantial

evidence.’ ” Id. (quoting 42 U.S.C. § 405(g)). Substantial

evidence “means ‘such relevant evidence as a rea-

sonable mind might accept as adequate to support a

conclusion.’ ” Id. (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). We do not reweigh the evidence or

substitute our own judgment for that of the ALJ; if rea-

sonable minds can differ over whether the applicant is

disabled, we must uphold the decision under review.

Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000). In ren-

dering her decision, the ALJ must “build a logical

bridge from the evidence to his conclusion, but he need

not provide a complete written evaluation of every piece

of testimony and evidence.” Schmidt v. Barnhart, 395 F.3d

737, 744 (7th Cir. 2005) (internal quotations omitted).

Shideler challenges both the ALJ’s finding on his credi-

bility and the ALJ’s finding that Shideler could perform

a significant number of jobs despite the limitations caused

by his impairments. We first consider whether the ALJ

reasonably evaluated Shideler’s credibility. Because the

ALJ is “in the best position to determine a witness’s

truthfulness and forthrightness . . . this court will not

overturn an ALJ’s credibility determination unless it is

‘patently wrong.’ ” Skarbek v. Barnhart, 390 F.3d 500, 504-

05 (7th Cir. 2004) (quotations omitted). When evaluating

No. 11-3284 9

credibility, the ALJ must “consider the entire case record

and give specific reasons for the weight given to the

individual’s statements.” Simila v. Astrue, 573 F.3d 503, 517

(7th Cir. 2009) (internal quotations omitted). On review,

we “merely examine whether the ALJ’s determination

was reasoned and supported.” Elder v. Astrue, 529 F.3d

408, 413 (7th Cir. 2008). We also note that whatever con-

dition the claimant may be in at his hearing, the

claimant must establish that he was disabled before the

expiration of his insured status (in Shideler’s case,

March 31, 2000) to be eligible for disability insurance

benefits. See, e.g., 42 U.S.C. § 423(a)(1)(A); 20 C.F.R.

§ 404.320(b)(2); Martinez v. Astrue, 630 F.3d 693, 699 (7th

Cir. 2011) (the claimant “had social security disability

coverage only until the end of 2003; if she was not

disabled by then, she cannot obtain benefits even if she

is disabled now”).

Shideler contends that the ALJ failed to consider his

prior work and medical histories and unreasonably

discounted his testimony that he needs to lie down

several times per day. This argument is unavailing. In

evaluating Shideler’s credibility, the ALJ considered a

broad range of factors, specifically focusing on his

medical history. The ALJ considered Shideler’s testi-

mony concerning his pain in his back and hands, as well

as his other symptoms; the types of medication he used

to treat his pain; his medical history, including his claim

of having suffered 55 broken bones in his lifetime, a

number that is unsupported by the medical evidence in

the record; the fact that, prior to his 1999 injury to his

knee in a motorbike accident, he had had no fractures

10 No. 11-3284

for several years; his treatment history, including the

fact that he was released to work without restrictions in

2000 after his knee surgery and in 2009; his daily living

activities and the limitations about which he testified;

the factors that aggravated his pain (temperature and

humidity extremes) and the factors that alleviated his

pain (lying down on a couch several times a day). The

ALJ’s considerations specifically took into account

Shideler’s testimony, as well as the testimony of his

roommate, and compared it to the medical and other

record evidence in reaching her decision.

Also, contrary to Shideler’s assertion, the ALJ con-

sidered his work history and specifically found that he

had not engaged in substantial gainful activity from

his alleged onset date of June 30, 1995 through his date

last insured of March 31, 2000. The ALJ took these

factors into account when making her decision and

granted Shideler numerous restrictions, finding that he

was capable of performing only a restricted range of

sedentary work through his date last insured. The ALJ

also considered Shideler’s assertion that he needed to lie

down several times per day 1 to alleviate his pain, but

1

Shideler testified that he needed to lie down at least four or

five times per day. The ALJ in her decision incorrectly found

that Shideler testified that he needed to lie down five or six

times per day. Shideler claims that this finding somehow made

it seem like Shideler was exaggerating his need for rest and

caused to the ALJ to discredit his testimony, but we find no

evidence of that. Regardless of however many times Shideler

(continued...)

No. 11-3284 11

ultimately found that “the claimant’s medically deter-

minable impairments could reasonably be expected to

cause the alleged symptoms; however, the claimant’s

and his witness’ statements concerning the intensity,

persistence and limiting effects of these symptoms are

not persuasive because the statements are not sup-

ported by the medical and other evidence of record.” The

ALJ connected this conclusion to the record evidence in

a detailed analysis, belying any claim that she failed

to build a logical bridge between the evidence and her

conclusion. See Johnson v. Barnhart, 449 F.3d 804, 806 (7th

Cir. 2006) (“Despite the inherent difficulty of evaluating

testimony about pain, an administrative law judge will

often have solid grounds for disbelieving a claimant

who testifies that she has continuous, agonizing pain.”).

To be sure, the ALJ’s decision was not perfect. It is

unclear why, for example, the ALJ posed so many ques-

tions about the condition of Shideler’s fingers and hands

during the hearing, yet made only brief mention of the

1

(...continued)

claimed he needed to lie down during the day, the objective

medical evidence in the record compelled the ALJ to discredit

his testimony, and any misstatement on her part did not affect

the outcome of the proceeding. See, e.g., Shramek v. Apfel, 226

F.3d 809, 814 (7th Cir. 2000) (affirming the ALJ’s decision

despite errors because they did not affect the outcome of the

proceeding).

12 No. 11-3284

testimony in her decision. 2 She could have pointed out

that, whatever the current condition of Shideler’s hands,

prior to his date last insured in March 2000 he was able

to operate a motorcycle 3 and work as a carpet cleaner.

She could have referenced the fact that the evidence did

not support Shideler’s assertion that he needed to lie

down several times per day, though we note that an

ALJ’s credibility findings need not specify which state-

ments were not credible. See Jens v. Barnhart, 347 F.3d

2

The ALJ did note that Shideler’s representative “stated that

the claimant’s hands were crumpled due to multiple fractures,

but offered no evidence of treatment or objective medical

findings related to the claimant’s hands even though the

undersigned allowed him additional time after the hearing

to submit medical evidence.” She also stated that there “was

no discussion of significant issues related to the claimant’s

hands in the 1999 and 2000 medical evidence” and pointed out

that Shideler was released to work without any restrictions

on these occasions. At any rate, the state of the claimant’s

hands at his hearing was irrelevant; the question is whether

he was disabled prior to March 31, 2000, and the record

evidence indicates otherwise.

3

There are inconsistencies on this point. Shideler testified that

his knee injury was sustained when a friend’s motorcycle fell

off a loading ramp and struck his knee. However, Shideler’s

surgeon noted in a report written shortly after the injury that

Shideler “was riding his dirt bike and sustained what is de-

scribed as a hyperextension type injury.” This inconsistency

further calls Shideler’s credibility into question, and bolster’s

the ALJ’s finding that Shideler’s testimony was not entirely

credible.

No. 11-3284 13

209, 213 (7th Cir 2003); see also Simila, 573 F.3d at 517

(stating that an ALJ “need not mention every strand of

evidence in her decision”). The decision also contains a

considerable amount of boilerplate language and recita-

tions. Despite these shortcomings, the ALJ adequately

evaluated Shideler’s credibility, and we see no reason

to reverse. See, e.g., Kittleson v. Astrue, 363 Fed. Appx. 553,

557 (7th Cir. 2010) (“The ALJ’s adverse credibility

finding was not perfect. But it was also not ‘patently

wrong.’ ”) (quoting Powers v. Apfel, 207 F.3d 431, 435 (7th

Cir. 2000)); Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir.

2004) (“The credibility determinations of an ALJ are

entitled to special deference and we see no reason to

overturn her findings.”).

We next turn to the ALJ’s decision that Shideler was

able to perform a range of sedentary work and was there-

fore not disabled. The focus here is on the fact that

Shideler needed to show that he was disabled as of his

date last insured. The ALJ was sympathetic to Shideler’s

condition at his hearing in 2009, and she stated that she

was looking for something to “connect all the pieces

together” to find Shideler disabled prior to March 31,

2000. Unfortunately, the objective medical evidence

showed that Shideler was not disabled by his date last

insured. He was able to ride a dirt bike in 1999, and

while he injured himself doing so, he made a full

recovery from that injury and was released to work

without any restrictions. In the years prior to 2000, no

evidence exists that he had broken any bones, and the

doctor’s report prior to his knee surgery in 1999 indicated

that he had not broken any bones for some time. When

14 No. 11-3284

asked why Shideler had so few medical records dating

from the time of his alleged disability onset date in 1995,

Shideler’s representative agreed that part of the problem

was “obviously that he didn’t have any medical insur-

ance” and that Shideler’s family doctor did not main-

tain adequate records. But Shideler was able to have

surgery in 1999 despite having no insurance. His surgeon

noted that Shideler would come back to see him again if

he continued to have problems post-recovery, and the

ALJ specifically left the record open for three weeks

after the hearing to allow Shideler more time to supple-

ment it with medical records. See, e.g., Scheck, 357 F.3d at

702 (stating that “the hearing transcript indicates that

the ALJ attempted to make as complete a record as pos-

sible” by giving the claimant an additional 30 days to

obtain additional medical records).

The ALJ also considered Shideler’s testimony re-

garding his difficulties performing daily living activ-

ities (though Shideler admitted he can still drive, an act

which requires some manual dexterity with one’s hands)

as well as his past work history, finding that he could

no longer work as a carpet cleaner, as that would be too

physically demanding for him now. She asked about

the medications he used to treat his pain and con-

sidered the testimony of his roommate. In addition to

the objective medical evidence in the record, she consid-

ered all of the factors required in the Code of Federal

Regulations, including daily living activities; the

duration, frequency, and intensity of Shideler’s pain;

factors that precipitate and aggravate his condition; the

types of treatment he received; the dosage, effectiveness,

No. 11-3284 15

and side effects of the medications he takes; and the

functional restrictions on Shideler. See id. at 703 (citing

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). The

ALJ ultimately found, based on the vocational expert’s

testimony regarding the range of sedentary jobs available

to someone in Shideler’s condition, that Shideler “was

capable of making a successful adjustment to other work

that existed in significant numbers in the national econ-

omy. A finding of ‘not disabled’ is, therefore, appro-

priate . . . .” The ALJ here built “a logical bridge from

the evidence to [her] conclusion,” Schmidt v. Barnhart, 395

F.3d 737, 744 (7th Cir. 2005), and her decision was sup-

ported by substantial evidence.

III.

The ALJ’s reasons for finding Shideler’s testimony to

be not fully credible are sound and are not “patently

wrong.” Whatever Shideler’s current condition is, the

ALJ’s decision finding that Shideler was not disabled as

of March 31, 2000 is supported by substantial evidence.

While the members of the court sympathize with

Shideler due to his condition, that condition did not

rise to the level of a disability prior to his date last in-

sured. We A FFIRM .

7-20-12