NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 9, 2009
Decided July 7, 2009
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐3914
Appeal from the United States District
RONALD L. ZIEGLER, Court for the Western District of
Plaintiff‐Appellant, Wisconsin.
v. No. 08‐cv‐006
MICHAEL J. ASTRUE, Barbara B. Crabb,
Commissioner of Social Security, Chief Judge.
Defendant‐Appellee.
O R D E R
Ronald Ziegler, then 43 years old, applied for disability insurance benefits, asserting
that after thirteen years at the post office, he could no longer work as a mail handler based
on a variety of physical and mental ailments. The ones relevant to this appeal are a
degenerative spinal condition, obesity, and a panic disorder. The ALJ found these ailments
to be “severe impairments,” but went on to find that Ziegler was not disabled and denied
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his application. The Appeals Council denied Ziegler’s request for review, and the district
court affirmed, Ziegler v. Astrue, 576 F. Supp. 2d 982 (W.D. Wis. 2008). Ziegler appeals, and
we affirm.
Background
A. Medical Records
The relevant medical history regarding treatment of Ziegler’s physical ailments
begins in March 2004 when he sought emergency treatment for chronic back pain with
symptoms in his left leg. He was prescribed a painkiller and a muscle relaxant and referred
to his primary care physician. A physician’s assistant at the clinic where Ziegler received
his primary care prescribed more medication, limited Ziegler to lifting no more than 10
pounds, and recommended physical therapy. After six sessions of physical therapy, Ziegler
said his lower back felt “fine.” He returned to work as of April 13, 2004, but apparently
injured his upper back that same day. That injury caused pain in Ziegler’s right arm, but it
apparently went away on its own. Dr. Edward Kramper saw Ziegler in May 2004 and
observed that the pain in Ziegler’s arm was “essentially gone,” but noted some other pain
in his spine. Dr. Kramper said that Ziegler could continue working, but recommended
more physical therapy.
Ziegler returned to physical therapy for eight sessions in May and June, 2004. A
report from his final session on June 21 documents that Ziegler told the physical therapist
that he was back at work performing his job duties without issue. A month later, though,
Ziegler stopped working again and returned to Dr. Kramper because the pain in his left leg
had returned. Dr. Kramper suggested that he be restricted to light duty at work for two to
three weeks to allow his back time to improve. Dr. Kramper saw Ziegler again in August
and wrote that his back strain and his pain had improved and that he could return to work
with some restrictions. In September, Ziegler saw Dr. Kramper again about both areas in
which he felt pain: his left leg where the pain seemed to be related to his lumbar spine
(roughly speaking, the lower spine) and his right arm where the pain seemed to be related
to his thoracic spine (roughly speaking, the upper spine). Dr. Kramper’s notes indicate that
Ziegler had continued to work with restrictions, but that the pain persisted. Accordingly,
Dr. Kramper ordered an MRI.
Dr. Kramper reviewed the MRI with Ziegler in October 2004 and reported some disc
herniation and bulging in the lumbar spine, but a normal thoracic spine despite continuing
thoracic pain. Dr. Kramper referred Ziegler to Dr. Craig Dopf, a back surgeon, to determine
whether surgery could help. Dr. Dopf met with Ziegler in November and substantially
agreed with Dr. Kramper’s diagnosis. With respect to Ziegler’s lumbar spine, Dr. Dopf
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explained that the “operative treatment would be decompression and fusion,” i.e., surgery,
but that Ziegler was not eligible because he was a smoker. Regarding Ziegler’s continued
thoracic and cervical pain, Dr. Dopf recommended another MRI. Nurse practitioner
Martine Batson, who worked in Dr. Dopf’s office, examined that second MRI and opined
that although it was consistent with Ziegler’s reports of thoracic pain, it did not account for
his reported cervical pain. Reasoning that carpal tunnel syndrome might be the culprit,
Batson referred Ziegler to a carpal tunnel specialist.
The remaining medical records concerning Ziegler’s physical condition were all
generated after he filed his disability claim. Two different state‐agency physicians
reviewed Ziegler’s records and concluded that he could perform light work with occasional
postural limitations. The opinions of those doctors seem to have prompted Ziegler to
obtain his own evaluation. He first requested one from Dr. Dopf, but Dr. Dopf’s office
would not provide an evaluation, referring him instead to his primary care physician.
Accordingly, Ziegler returned to the clinic where he had previously been treated. Ziegler
was seen by Dr. Curtis Bush, who ordered a functional capacity evaluation. That
evaluation was performed by physical therapist James Pankratz, who concluded that “Mr.
Ziegler is able to work at the LIGHT‐MEDIUM Physical Demand Level.”
Dr. Bush then reviewed Pankratz’s evaluation with Ziegler and completed his own
evaluation. Dr. Bush did not offer an opinion about the level of work Ziegler could handle,
but he did identify several limitations. He explained that Ziegler’s condition would result
in frequent interference with attention and concentration, that Ziegler could not sit or stand
for more than 30 minutes without changing position, that he could sit for only two hours in
an eight‐hour day, that he could stand or walk for only two hours in an eight‐hour day, that
he could not look down, twist, or climb a ladder, and that he could stoop or turn his head
left or right only rarely.
The relevant record regarding Ziegler’s mental health is much smaller. In December
2004, Dr. Keith Bauer, a state‐agency therapist, noted that Ziegler had been diagnosed with
panic disorder but concluded that Ziegler’s only functional limitation was a mild restriction
of the activities of daily living. Dr. Bauer concluded that Ziegler had no severe
psychological impairment. In July 2005, Ziegler consulted with Dr. Scott Bohon, a
psychiatrist, for the first time. According to Dr. Bohon’s notes, Ziegler had been treated by
Dr. Ed Sheldon since 2000 for his panic disorder, but had to find a new provider because of
a change in his insurance coverage. Ziegler described panic episodes lasting up to two
hours for which Paxil, prescribed by Dr. Sheldon, was providing significant but not
complete relief. Beyond Dr. Bohon’s notes, the record contains no information about Dr.
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Sheldon or his treatment of Ziegler. Dr. Bohon increased the dosage on the Paxil and
recommended a follow‐up meeting within one month. In a mental‐impairment
questionnaire, Dr. Bohon repeated Ziegler’s reports of his panic attacks and concluded that
Ziegler “cannot function at work due to poor stress tolerance, episodic panic attacks at
work, [and] getting upset with others,” and that his panic disorder “amplifies his chronic
back pain.” But Dr. Bohon also noted that he had just met Ziegler and, therefore, Ziegler’s
prognosis was “unknown.”
The only other record of Ziegler’s mental condition is contained in notes by Dr.
James Schneider, an internist Ziegler saw regularly at a VA hospital for multiple medical
problems not related to his disability claim. Dr. Schneider’s notes from each such
consultation list the following as an active problem: “Anxiety/panic attack 9/00.” But there
is no suggestion that Dr. Schneider, who is not a mental‐health specialist, provided any
diagnosis or treatment of Ziegler’s panic attacks.
B. ALJ Hearing
The ALJ conducted a hearing at which Ziegler, his wife, and a vocational expert
testified. Ziegler testified that he stopped working on April 12, 2004, because he lost the use
of his left leg and right arm. He explained that his leg problem was caused by herniated
discs in his lumbar spine, that he had gone through prescribed physical therapy for it, that
he had refused injections to treat the pain, and that as a smoker he was not a candidate for
surgery. Ziegler also described his symptoms: he cannot walk without a cane, he suffers
intense pain after any type of rocking motion, he cannot stand unassisted for more than ten
minutes, he can walk only a couple of city blocks, and he can lift only ten or fifteen pounds
while in a seated position but not repeatedly. Ziegler next explained that his arm problem
was caused by a bulging disc, but had been “resolved for the most part.” Ziegler said,
though, that he continued to have trouble gripping with both hands. Ziegler also discussed
his panic attacks, explaining that they had caused him to miss work and that he continues
to suffer from them.
Ziegler’s wife testified next and corroborated his description of his daily life.
According to his wife, Ziegler could no longer do household chores, he could not stay on
his feet long enough to go grocery shopping, and he spent five or six hours a day in his
recliner. She also discussed Ziegler’s panic attacks, explaining that when they strike,
Ziegler shuts off from the outside world for hours at a time.
The VE testified last. The ALJ asked the VE to consider someone with Ziegler’s age,
education, and work history who (1) is “limited to light work,” (2) is “precluded from any
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climbing of ropes, ladders, or scaffolds,” (3) is “precluded from more than occasional
climbing of ramps or stairs,” (4) is “precluded from more than occasional stooping,
bending, crouching, crawling, kneeling or twisting,” (5) is “precluded from standing more
than 30 minutes or sitting more than 30 minutes at a time,” (6) has a “limited but
satisfactory [ability] with regard to relating to coworkers, interacting with supervisors,
understanding, remembering, and carrying out detailed job instructions and behaving in an
emotionally stable manner,” and (7) “is seriously limited but not precluded with regard to
dealing with the public and dealing with work stresses.” The VE testified that, considering
all of these limitations, such an individual would not be able to perform Ziegler’s past work
as a mail handler, but would be able to perform the job of post office clerk as it is defined by
the Dictionary of Occupational Titles. The VE also testified that there existed other jobs that
such an individual could perform in Wisconsin. As examples, the VE listed mail clerk,
parking lot attendant, injection molding machine tender, office helper, and x‐ray inspector.
Next, the VE testified that there were other jobs that the individual could perform
even if he was limited to sedentary work: “order clerk food and beverage” and
telemarketer. Finally, Ziegler’s lawyer questioned the VE and asked him to consider
Ziegler’s “very poor” performance on a test of occasional material handling given to him by
Pankratz, the physical therapist. The VE explained that someone who fell in the eighth
percentile for material handling would not be acceptable for any of the jobs he had
identified.
C. ALJ’s Order
In his order, the ALJ followed the five‐step sequential evaluation process for
determining if a claimant is disabled. See 20 C.F.R. § 404.1520(a). At step one, the ALJ
found that Ziegler had not engaged in substantial gainful activity since he stopped
working. At step two, the ALJ found that Ziegler was suffering from three severe
impairments: obesity, anxiety disorder, and degenerative spinal disease. Next, at step
three, the ALJ found that none of Ziegler’s impairments meet or equal a listed impairment.
Then, at step four, the ALJ found that Ziegler had the residual functional capacity to
perform “a range of light work.” The ALJ credited Ziegler’s statements about the existence
of his symptoms but refused to credit his statements about the severity of those symptoms.
The ALJ refused to credit both Dr. Bush’s opinion, which the ALJ read to conclude that
Ziegler could not perform light work, and Dr. Bohon’s opinion that Ziegler suffered severe
mental limitations.
Regarding Ziegler’s physical impairments, the ALJ relied on the bottom‐line
conclusion of Pankratz, the physical therapist, who determined that Ziegler could perform
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light to medium work. As further support for crediting Pankratz over Dr. Bush, the ALJ
asserted, incorrectly, that Dr. Bush had not reviewed Pankratz’s report. The ALJ also relied
on evidence from the office of Dr. Dopf, the back surgeon. First, the ALJ reasoned that by
directing Ziegler to his primary‐care physician for an evaluation, Dr. Dopf had “refused to
assign any limitations at all.” Second, the ALJ relied on the comments of Batson, the nurse
practitioner in Dr. Dopf’s office. The ALJ read Batson’s statement that Ziegler’s MRI was
not consistent with his thoracic pain to mean that the MRI was not consistent with any of
his symptoms.
Regarding Ziegler’s mental impairments, the ALJ relied on the opinion of Dr. Bauer,
the state‐agency therapist, who concluded that Ziegler had no severe mental impairment.
The ALJ noted that Dr. Bauer’s opinion was affirmed by “other personnel of the State
agency,” but what he was referring to is unclear. The ALJ discounted Dr. Bohon’s
assessment because it was based primarily on Ziegler’s own reports and because the ALJ
thought it was contradicted by the reports of Dr. Schneider, the VA internist. As the ALJ
read Dr. Schneider’s notes, they did not “indicate anything but continued stability on
medication.”
The ALJ then concluded, based on his RFC finding and the VE’s testimony, that
Ziegler was capable of “performing [his] past relevant work as a post office clerk.”
According to the ALJ, the VE testified that Ziegler’s limitations “would not preclude [his]
past work as a postal clerk as that job is generally performed within the national economy.”
The ALJ continued on to step five and made an alternative finding, again based on the VE’s
testimony, that jobs existed in significant numbers that someone with Ziegler’s limitations
could perform. The ALJ did not mention the VE’s testimony regarding Ziegler’s
performance on the test of occasional material handling. Accordingly, the ALJ found that
Ziegler was not disabled.
The Appeals Council denied Zieglerʹs request for review, making the ALJʹs decision
the final decision of the Commissioner. The district court upheld that final decision.
Ziegler, 576 F. Supp. 2d at 982.
Analysis
On appeal Ziegler challenges four different categories of findings by the ALJ:
findings regarding his physical condition, findings regarding his mental conditions,
credibility findings, and the findings regarding what jobs Ziegler could perform. We
review the ALJ’s ruling directly without giving deference to the district court’s decision, see
Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009), and will uphold the ALJ’s ruling so long
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as it is supported by “substantial evidence,” see 42 U.S.C. § 405(g), i.e., “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
A. Ziegler’s Physical Condition
The first mistake Ziegler assigns to the ALJ is crediting the opinion of Pankratz over
that of Dr. Bush. According to Ziegler, the ALJ should not have relied on Pankratz’s
conclusion that Ziegler was capable of performing jobs at the light or medium exertional
level. Ziegler argues that the more‐detailed findings in the report show that he was not
able to perform even sedentary work. Indeed, the report notes that Ziegler was able to sit
or walk only occasionally and stand, reach, or bend only infrequently. But Ziegler is wrong
to believe that these limitations preclude him from performing light work. A job is in the
light work category “when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20
C.F.R. § 404.1567(b). Ziegler may be correct that he could not perform a job that required “a
good deal of walking or standing,” but his argument ignores the remainder of the
definition. Based on the complete definition of light work, Pankratz’s bottom‐line
conclusion is not contradicted by his detailed report.
The ALJ was, therefore, free to rely on Pankratz’s conclusion to disbelieve the
conclusion of Dr. Bush. The ALJ was mistaken in thinking that Dr. Bush made his
conclusion without seeing Pankratz’s report, but the error is immaterial. The ALJ properly
considered Dr. Bush’s opinion and found Pankratz’s opinion to be more persuasive. We
have reviewed the two reports: Pankratz’s report and conclusions total 14 pages and
contain the results of dozens of tests. Dr. Bush’s report is 4 pages long and seems to contain
little more than Ziegler’s own self‐reported symptoms. The ALJ’s decision to credit
Pankratz’s report over Dr. Bush’s is supported by substantial evidence. See Ketelboeter v.
Astrue, 550 F.3d 620, 625 (7th Cir. 2008).
B. Ziegler’s Mental Condition
Next, Ziegler moves to his mental condition and contests the ALJ’s finding that he
does not suffer from severe mental limitations. Although Dr. Bohon concluded that
Ziegler’s panic disorder prevented him from working, the ALJ refused to credit his report,
instead relying on the report of Dr. Bauer, the state‐agency therapist, who concluded that
Ziegler does not have a severe mental impairment. Ziegler asserts that the ALJ should not
have relied on Dr. Bauer’s opinion because, in contrast to the opinion of Dr. Bohon, it was
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not based on an in‐person examination and because it did not take Dr. Bohon’s opinion into
account.
First, Ziegler is correct that the opinion of an “examining physician” is entitled to
greater weight, see 20 C.F.R. § 404.1527(d)(1), but the ALJ was entitled to give Dr. Bohon’s
opinion less weight because it was based only on Ziegler’s self‐reported symptoms. See
Ketelboeter, 550 F.3d at 625. Even though a psychiatrist’s examination will often involve
little more than analyzing self‐reported symptoms, Dr. Bohon’s report does not show much
analysis and was prepared after only one meeting with Ziegler. Although it says that
Ziegler cannot function at work, in the space for a prognosis, it reads, “Unknown; I just met
him.” At another point in the report, Dr. Bohon wrote, “I don’t know him well enough to
explain further.” Given the inconclusiveness of the report and the other record evidence
that contradicts its conclusion, the ALJ’s finding is supported by substantial evidence. See
Berger v. Astrue, 516 F.3d 539, 544‐45 (7th Cir. 2008).
C. Ziegler’s Credibility
Ziegler next argues that the ALJ erred in discrediting his descriptions of his own
symptoms. This court defers to the credibility determination of the ALJ; it will be upheld
unless it is “patently wrong.” See Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). The
credibility determination here was based on the following: according to the ALJ, “several
treating physicians” disagreed with Ziegler’s assessment of his symptoms, Ziegler seemed
to make two complete recoveries before quickly reinjuring himself upon returning to work,
and in his meetings with doctors, Ziegler showed a suspicious familiarity with the legal
issues surrounding his legal claims.
Although an ALJ may reasonably disbelieve a claimant’s testimony when it is
contradicted by medical evidence, see Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008),
Ziegler argues that the ALJ misunderstood the medical evidence. He cites Pankratz’s report
first, but, as discussed above, the ALJ properly relied on that report. The ALJ did err
regarding what it took to be the observations of Dr. Dopf, the back surgeon, and Batson, the
Nurse Practitioner in Dr. Dopf’s office. Dr. Dopf declined to provide a functional capacity
evaluation because he was not Ziegler’s primary care physician. That is not the same as
refusing “to assign any limitations at all.” And the Commissioner concedes that the ALJ
misunderstood Batson’s comment. She said only that Ziegler’s cervical pathology was
inconsistent with some of his symptoms; she did not say that all of his symptoms were
inconsistent with his spinal pathology. But those errors do not require reversal. So long as
there is some record support for the credibility determination, we will not reverse. Berger,
516 F.3d at 546. Here, despite the errors, there was sufficient medical evidence in the record
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on which the ALJ properly relied in discrediting Ziegler’s testimony. Combined with the
ALJ’s observations that Ziegler quickly reinjured himself after two attempts to return to
work and that he “appeared very conversant with the legalities” involved in his claims, the
ALJ’s credibility finding was not patently wrong.
D. Jobs Available to Someone with Ziegler’s Characteristics
Ziegler’s final arguments are that ALJ erred at step four when he found that Ziegler
could perform his past relevant work and at step five when he found, in the alternative, that
jobs exist in significant numbers that Ziegler could perform. Ziegler is correct that the ALJ’s
step‐four finding was error because the VE had testified only that Ziegler could perform the
job of post office clerk as defined by the Dictionary of Occupational Titles. No evidence
supported a finding that Ziegler could perform the job he had actually done. But as Ziegler
acknowledges, this error is immaterial if we uphold the ALJ’s alternative finding at step
five. We have already upheld the findings on which the ALJ based the hypothetical
question posed to the VE and Ziegler has not questioned the reliability of the VE’s
testimony that jobs existed in significant numbers that a person described in the
hypothetical could perform. See Britton v. Astrue 521 F.3d 799, 803 (7th Cir. 2008). Before
relying on that testimony, it might have been preferable for the ALJ to mention the VE’s
testimony regarding Ziegler’s performance on a single test performed by Pankratz, the
physical therapist. But as we explained above, the ALJ properly relied on Pankratz’s
ultimate conclusion, so considering Ziegler’s performance on just one of many tests was
unnecessary. Thus, the ALJ’s step‐five finding was supported by substantial evidence. See
Schmidt v. Astrue, 496 F.3d 833, 845‐46 (7th Cir. 2007).
Conclusion
Accordingly, we AFFIRM the Commissioner’s decision.