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Johansen v. Barnhart

December 23, 2002


Appeal from the United States District Court for the Western District of Wisconsin. No. 01-C-613-S--John C. Shabaz, Judge.

Before Flaum, Chief Judge, and Cudahy and Coffey, Circuit Judges.

The opinion of the court was delivered by: Flaum, Chief Judge.


Donald Johansen applied for Social Security benefits, alleging disability due primarily to back pain and depression. The administrative law judge ("ALJ") concluded that Johansen was not disabled, and the Appeals Council denied Johansen's petition for review. Johansen now appeals from the district court's judgment upholding the denial of benefits. We affirm.


A. Johansen's Physical Impairments Johansen, who was forty years old at the time of the ALJ's decision, began complaining of neck and upper back pain following a car accident in 1993. After magnetic resonance imaging ("MRI") revealed that he had a herniated disc and a bulging disc in his cervical spine, Johansen underwent physical therapy and took a ten-month leave of absence from his job as a forklift operator. He stopped working permanently after he re-injured his back in 1996. At that time Johansen's physician restricted him to lifting and carrying no more than twenty pounds.

During the next two years, Johansen visited a number of doctors, complaining of exacerbated pain in his back and extremities. On one occasion he suggested that the twenty-pound lifting and carrying limitation he received in 1996 was no longer appropriate because he was actually "unable to do things up to 20 pounds." The treatment notes from Johansen's doctors reveal, however, that his condition had not worsened since 1996. For instance, in January 1997 Johansen's primary physician, Dr. Mark Timmerman, stated that a neck examination and an MRI "show[ed] no significant change since 1993"; in February 1997 neurosurgeon Randy Florell also observed that Johansen's MRI results remained unchanged and that he had only "very minimal disk bulging," which in Dr. Florell's opinion was not "significant"; in March 1997 Dr. Florell noted that Johansen could still lift up to twenty pounds and could actually increase work activity "to include forklift driving . . . up to six hours per day"; in May 1997 a third physician, Dr. Frank Salvi, recommended a "gradual reduction in [Johansen's] current light duty work restrictions as his symptoms improve"; in October 1997 Dr. Salvi observed that Johansen's condition had "significantly improved" and recommended "advancing [him] to medium duty work restrictions"; and in November 1997 Dr. Salvi noted that Johansen continued to remain off work despite having been released to medium-duty work restrictions.

In March 1998 Johansen began seeing another physician, Dr. Robert Olson. According to Dr. Olson's notes, Johansen experienced some deterioration in his physical condition during 1998 and 1999. For instance, in August 1998 Johansen reported that he had to cut back on his exercise regimen because of knee pain. (He had been walking as much as one mile on a treadmill daily.) Johansen further reported in July 1999 that he was experiencing an increase in back and neck pain after doing some "heavy lifting" in connection with an apartment move. And in October 1999 an MRI revealed that Johansen's disc herniations had increased in size.

In March 1999 agency physician Kenneth Bussan reviewed Johansen's medical records and concluded that his condition limited him to medium work not requiring more than minimal overhead reaching. Specifically, Dr. Bussan found that Johansen could lift and carry twenty-five pounds frequently and fifty pounds occasionally, sit for six hours in an eight-hour workday, and stand or walk six hours in an eight-hour workday. In making his assessment, Dr. Bussan noted that Johansen had the ability to walk one mile a day on a treadmill.

In November 1999 Dr. Olson submitted his assessment of Johansen's physical ability to do work-related activities. Dr. Olson concluded that Johansen could occasionally lift and carry ten pounds and frequently carry less than ten pounds, stand or walk for about four hours in an eighthour workday, and sit for about six hours in an eighthour workday. In Dr. Olson's opinion, Johansen's impairments would cause him to be absent from work more than three times a month.

B. Johansen's Mental Impairments

In March 1999 state-agency psychologist Linda Ingison examined Johansen and diagnosed him with dysthymia and panic disorder without agoraphobia. Dr. Ingison concluded that Johansen's "ability to withstand the pace, change, and stress in a typical workplace would appear to be limited." Dr. Ingison also observed that Johansen "appeared to be in some pain and had problems sitting and getting up from the chair. . . . He did not appear to be exaggerating or minimizing his symptoms."

Also in March 1999, agency medical consultant Anthony Matkom reviewed Johansen's file and concluded that he was "not significantly limited" in seventeen of twenty work-related areas of mental functioning. Dr. Matkom then determined that Johansen ranged between "moderately limited" and "not significantly limited" in the remaining three areas: (1) the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (2) the ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and (3) the ability to accept instructions and respond appropriately to criticism from supervisors. Finally, Dr. Matkom translated his worksheet observations into an assessment of Johansen's mental residual functional capacity ("RFC") and concluded that he could perform repetitive, low-stress work.

Later, psychologist Kent Berney reviewed Johansen's files and appeared at the administrative hearing at the request of the agency. Dr. Berney testified that Johansen was moderately limited in his abilities to carry out detailed instructions, maintain attention and concentration, perform activities within a schedule, maintain regular attendance, sustain an ordinary routine without special supervision, and complete a normal workday. When asked by Johansen's counsel to quantify "moderately limited," Dr. Berney explained that a "moderately ...

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