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Jozefyk v. Berryhill

United States District Court, E.D. Wisconsin

March 5, 2018



          William C. Griesbach, Chief Judge.

         This is an action for judicial review of a decision by the Commissioner of Social Security denying Plaintiff Christopher Jozefyk's applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jozefyk contends that the decision is not supported by substantial evidence. In particular, he asserts that the Administrative Law Judge (ALJ) failed to obtain a valid waiver of his statutory right to counsel, to adequately develop the record, and to account for his moderate difficulties maintaining concentration, persistence, and pace in formulating his residual functional capacity (RFC). For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Jozefyk filed an application for a period of disability and disability insurance benefits on January 10, 2013, and an application for supplemental security income on December 5, 2012. R. 105, 141. Both applications alleged that he has been disabled since December 31, 2011. Id. In the Disability Report filed in support of his application, Jozefyk listed the following physical or mental impairments that he claimed limited his ability to work: “1. spinal injury, mental illnesses, vision impairment; 2. diabetes; 3. back injury herniated discs in neck; 4. myopia and cataracts; 5. [d]epression; 6. astigmatism; 7. visually impaired; 8. head injury with permanent damage physical & mental; 9. overlapped toes foot problems; 10. [f]lat feet and pes planus with ankles giving way; and 11. [h]istory of liver function failure.” R. 246. At the time of his applications, Jozefyk was 32 years old and lived with his mother and step-father in Niagara, Wisconsin. R. 149. He has not worked since December 2011, and before that he worked various jobs as a security guard and in retail settings. R. 85-88.

         Jozefyk's applications were denied both initially on June 6, 2013, and on reconsideration on October 4, 2013. R. 120, 137, 157, 174. He requested a hearing before an ALJ, and ALJ MaryAnn Lunderman held a hearing on March 23, 2015. R. 80, 188. At the hearing, Jozefyk appeared without counsel and testified on his own behalf, and the ALJ also heard testimony from Vocational Expert (VE) Allen Noll. R. 80-81.

         At the hearing, Jozefyk testified that he was 5' 6" in height and weighed 250 pounds. He was a high school graduate and last worked in December 2011. R. 85. Jozefyk testified that he was no longer looking for work because he had “really bad anxiety and depression.” Id. His last job had been as a security guard for a private gated community in Florida which he had held for three and a half years. He left that employment when the company he worked for lost the contract with the community where he had been working and placed him at a new location that was too far from his home. R. 86. Jozefyk testified that before that he worked for three months at a gas station as a cashier but also did janitorial work and other tasks that were required. Prior to that job, he worked as a security guard for three other companies. He was terminated from the first after three or four months because a supervisor did not like him, from the second because the company lost its contract, and the other due to a change in management. Prior to that, he worked six years at a retail store as a cashier and doing customer assistance. R. 86-88.

         Expanding on why he was unable to work, Jozefyk testified:

I have severe depression, anxiety. I have memory problems, I forget things a lot. I have, I have pain everywhere, every day. I get migraines frequently. I have, I have a foot problem where I can't stand or walk for too long and also I have a knee problem, where my knee goes out on me a lot. I have back pain every day, spasms probably twice a week. And that's about it.

R. 88.

         Although he was still current on his license, Jozefyk testified that he could no longer work as a security guard because “I can't stand or sit for too long because of my knee and my foot.” R. 90. He testified he could lift only ten pounds without hurting himself, sit for a couple of hours at a time, stand for a half hour, and walk a quarter mile. He spent his days on his computer, either on Facebook or other sites, or watching TV. He did housework when he had to, but washing dishes bothered his back after a while and he would sometimes drop dishes because he had weakness, trembling, and pain in his hands. He could also do laundry and vacuum, but everything he did hurt his back. He also cared for his mother's two cats. R. 90-91.

         Following Jozefyk's testimony, the ALJ examined the VE. In the course of questioning the VE, the ALJ posed the following hypothetical:

Let's assume a hypothetical individual who is the same age with the same vocational and educational background as the claimant. Assume further, the hypothetical individual is limited to medium work and the hypothetical individual is further limited to simple, routine, repetitive tasks . . . requiring no more than occasional contact with supervisors and coworkers, no contact with the public, but no supervisor or coworker should be situated in close proximity to the assigned work area, and by that, within 10 to 15 feet.

R. 94. In response to questions that followed, the VE testified that the hypothetical individual would not be able to perform Jozefyk's past relevant work as a security guard or cashier, but would be able to find work in the national economy as a floor waxer, dishwasher/kitchen helper, or machine operator. R. 94-96. The ALJ adjusted the hypothetical, reducing the exertional level to light, and the VE testified that the altered hypothetical person could find jobs in the national economy as a packager or hand packager, a bagger, or a projection molding machine tender. R. 96-97. The ALJ further adjusted the hypothetical, reducing the exertional level to sedentary, and the VE testified that there would be a small number of jobs in the national economy available to the hypothetical person as a surveillance system monitor, dowel inspector, and press operator. R. 98-99.

         In an eighteen page decision dated May 15, 2015, the ALJ determined that Jozefyk is not disabled. R. 14-31. The ALJ's decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 15-16. At step one, the ALJ concluded that Jozefyk met the insured status requirements through December 31, 2016, and that he has not engaged in substantial gainful activity since December 31, 2011, the onset date of his alleged disability. R. 16. At step two, the ALJ concluded that notwithstanding the numerous physical and mental impairments listed in his Disability Report, Jozefyk had only four severe impairments: lumbar strain, obesity, degenerative changes in the cervical spine, and affective and anxiety disorders. R. 22. At step three, the ALJ concluded that Jozefyk did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 16-17. Specifically, the ALJ considered listings 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety-related disorders) and determined that Jozefyk did not have a sufficient combination of marked impairments and repeated episodes of decompensation to satisfy the “paragraph B” criteria for any of those listings. R. 17-19. Nor did the evidence support the existence of any listing's “paragraph C” criteria. The ALJ also considered the severity of Jozefyk's obesity under Social Security Ruling 02-1p. R. 17-18.

         Before turning to steps four and five, the ALJ determined Jozefyk's RFC. With respect to Jozefyk's physical impairments, the ALJ found that there was no objective evidence to support impairment to his low back, even though his physicians had acknowledged a lumber component to his alleged back pain. The evidence supporting impairment of the cervical spine showed mild paracentral disc protrusion at ¶ 5-6 with very early central disc protrusion at ¶ 6-7. R. 20. Despite this minimal evidence, “[i]n the spirit of generosity and in light of the objective medical evidence, ” the ALJ found that “the claimant suffers from degenerative disc changes in the cervical spine and a lumbar strain.” R. 21. With respect to the severity and extent of the chronic pain Jozefyk attributed to his physical impairments, however, the ALJ was less generous. He found that Jozefyk's testimony and other statements concerning the intensity, persistence, and limiting effects of his impairments were not credible:

If the pain was truly as severe and as limiting as claimed, it would be reasonable to expect to see more aggressive and consistent pain management. Here, the evidence shows the claimant did not start using pain medication until shortly before the administrative hearing, and as Dr. Tan noted, he has never had chiropratic care, physical therapy, or cortisone injections. Thus, I do not find the allegations of severe and chronic pain to be fully credible.

Id. The ALJ found no medical evidence to support Jozefyk's assertion that his other alleged physical impairments created any functional limitations. R. 21-23. The significant discrepancies between the evidence and Jozefyk's function reports, the statements he made to a consultative physician, and his testimony at the hearing, the ALJ noted, “raise concerns about the credibility of the claimant's allegations, particularly since there is no evidence of a worsening in the impairments during that time.” R. 23-24. Based on the evidence of record, the ALJ found that Jozefyk had “the physical residual functional capacity to perform medium work secondary to pain and mildly diminished range of motion in his back in combination with the exacerbating effect of obesity.” R. 24.

         As to mental impairments, although Jozefyk had “a very limited history of mental health treatment during the period at issue, ” the ALJ found that “the evidence supports a finding of affective and anxiety disorders.” Id. Based on this finding, the ALJ added to the RFC of medium work the following limitation:

[W]ork as assigned is limited to simple and repetitive tasks requiring no contact with the public and only occasional contact with supervisors and coworkers but with neither coworkers or supervisors located in close proximity to the assigned work station, specifically no closer than 10 to 15 feet.

R. 19.

         Based on this RFC finding, the ALJ determined at step four that Jozefyk is not capable of performing his past relevant work as a cashier or security guard. R. 27-28. But considering Jozefyk's age, education, work experience, and RFC, the ALJ found that Jozefyk is capable of performing jobs that exist in significant numbers in the national economy. R. 28. The ALJ relied upon the VE's testimony at the hearing that jobs exist for a person of Jozefyk's age, experience, education, and RFC at the medium, light, and sedentary exertional levels. R. 29-30. Because the availability of such work options meant that Jozefyk would be capable of making an adjustment to other work, the ALJ therefore found that he is not disabled. R. 30. Jozefyk sought review by the Appeals Council, which denied his request. R. 1-10. He thereafter sought review in this court.

         LEGAL ...

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