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Gerald Government v. Astrue

October 7, 2008


Appeal from the United States District Court for the Western District of Wisconsin. No. 06 C 484-Barbara B. Crabb, Chief Judge.

Per curiam.


Before POSNER, SYKES, and TINDER, Circuit Judges.

Gerald Government applied for Social Security disability insurance benefits and supplemental security income payments, claiming that he was unable to work due primarily to fatigue related to Graves' disease, anemia, and vision problems. After conducting a hearing an Administrative Law Judge ("ALJ") denied benefits, relying on testimony by a vocational expert ("VE") to find that, though Government could not return to his past work, he could perform a significant number of other available jobs. On review by the district court, the court found that substantial evidence supported the ALJ's conclusion. In this appeal, Government challenges the ALJ's reliance on the VE's testimony. We will discuss the record that was before the ALJ prior to addressing those contentions.

Government, currently 58 years old, is a high-school graduate. For fifteen years before the alleged onset of disability, he worked at a resort. His duties included maintaining and repairing the golf course irrigation system, setting up for conventions, and performing other small repairs. In 2003 Government began to feel overheated, shaky, and fatigued on a regular basis, and he experienced a rapid, unexplained weight loss of more than 70 pounds. In November of that year, Government-who already suffered from diabetes, hypertension, glaucoma, cataracts, and severe myopia-quit his job because he was too fatigued to continue working.

Government reported his symptoms to his treating physician, Dr. John McKevett, and was referred to an endocrinologist who diagnosed Government with Graves' disease, a form of hyperthyroidism that may cause weight loss, tremulousness, and weakness, among other symptoms. STEDMAN'S MEDICAL DICTIONARY 557, 928 (28th ed. 2006).

Graves' disease is chronic, but the symptoms are treatable. See, Graves' Disease (July 6, 2007), DS00181/DSECTION= treatments-and-drugs. He also was diagnosed with anemia, which frequently causes fatigue and lethargy in its sufferer. STEDMAN'S MEDICAL DICTIONARY at 78.

Government began radioactive iodine therapy for his Graves' disease in late December 2003. He filed his application for benefits shortly thereafter. The therapy initially alleviated some of Government's symptoms, but then instead of producing too much thyroid hormone, Government began producing too little, a condition called hypothyroidism, which (like hyperthyroidism) often causes fatigue and muscle weakness. STEDMAN'S MEDICAL DICTIONARY at 939, 1277. (Roughly 70% of patients treated with radioactive iodine experience this overcorrection of thyroid function, after which they usually require lifelong thyroid hormone replacement therapy.) Endocrinologists tested Government's thyroid function every four to eight weeks throughout 2004 and sent the results to Dr. McKevett, who prescribed a thyroid-hormone replacement drug called Synthroid. After taking Synthroid for two weeks, Government told Dr. McKevett that he still tired easily but his energy level was "slowly but surely im-proving." At the same visit, the doctor noted "moderate generalized weakness," but stated that this was also "slowly improving." Dr. McKevett's records reflect that Government's dosage of Synthroid was adjusted several times over the next 18 months. But by the end of that period, Dr. McKevett still had not determined the correct dosage and attributed Government's continued fatigue to "not being conditioned" to the medication. As for Government's anemia, the records do not mention any treatment for that ailment, and Government did not know at the time of his hearing whether he was still anemic.

Government also submitted records from his optometrist and opthalmologist concerning his vision problems. The opthalmologist reported that Government suffered from "pathologic myopia," glaucoma, and cataracts. He said that Government's visual acuity of 20/80 made "any visual task difficult" and his eyesight would continue to deteriorate. His optometrist reported that Government had "open angle" glaucoma and myopic degeneration resulting in "poor vision in general" and "almost no night vision." Both doctors agreed that Government's vision would likely worsen over time. The medical records show that Over-man's diabetes and hypertension were, for the most part, well-controlled during the alleged period of disability.

At the hearing before the ALJ in November 2005, Government testified that he was still taking Synthroid for his thyroid condition but that his doctor had not yet determined the correct dosage. He also testified that he took medication for his diabetes but was not insulin-dependent. He said that he was nearsighted, wore glasses, and could watch TV as long as he was within five feet of the set. Regarding his daily activities, Government testified that he tries to do things around the house but finds it very tiring and that, during the six months prior to the hearing, if he sat down in a chair for more than five minutes he would fall asleep. Government testified that he could feed and bathe himself and that his performance of household chores did not significantly change after the onset of disability in November 2003. He said that he could drive during the day but not after dark as he had "no night vision." He also said that he could walk a half mile on flat terrain as long as it was not too cold out, but that in the cold his extremities go numb due to his diabetes. He said that the numbness had worsened over time and was not always associated with cold temperatures. Finally, Government testified that his resort maintenance job had been unskilled and primarily required making small repairs to door knobs, light switch covers, and the like. He left the job in November 2003 after fainting at work. He said that he would not be able to return to that job because he could not tolerate working outdoors in hot weather and because he was routinely required to lift more weight than Dr. McKevett recommended.

Dr. Julianne Koski, a family practitioner and agency consultant, also testified at the hearing. Having reviewed Government's medical records, Dr. Koski concurred that Government suffered from Graves' disease, severe myopia with glaucoma, diabetes, and hypertension. She testified that it was difficult to determine Government's corrected visual acuity from his medical records, but she guessed that it was no better than 20/100 when corrected with glasses. She also concurred that he suffered from cataracts, which, in her opinion, were not yet "visually significant." Dr. Koski opined that none of Government's impairments met or equaled Social Security medical listings, so she analyzed how, in her view, his ailments impacted his residual functional capacity. She said that Government could not perform work requiring fine discrimination or significant reading, should stay away from hazards and extreme temperatures, should avoid all ropes and scaffolding and climb ladders only occasionally, should never lift more than fifty pounds but could lift twenty pounds "on a more frequent basis," and should not do any repetitive over-the-shoulder lifting. She did not recommend any limitations on Government's ability to sit or stand.

The last witness at the hearing was the vocational expert ("VE"), Kenneth Ogren. The ALJ asked the VE, hypothetically, whether a person with a residual functional capacity as described by Dr. Koski-including the limitations on reading, fine discrimination, and extreme temperatures-could do any of Government's past relevant work. The VE answered that the extreme-temperatures limitation ruled out Government's prior work, much of which was performed outdoors. The ALJ then asked, hypothetically, whether there were other jobs in the region that a person with those same limitations could perform. The VE answered that such a person could perform two occupations: "hand packager, and that is at DOT 920.587-018. . . . [and] Rack room worker, 920.665-014." A "hand packager" manually packages materials and products, and a "rack-room worker" tends machines that fill metal kegs with beer in the keg-filling (or racking) room of a brewery; both positions require a "medium" level of exertion. See DEP'T OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES 932-33 (4th ed. rev. 1991), available at libdot.htm. According to the VE, there were 1,200 and 800 such jobs, respectively, available in Minnesota. (The district court rejected Government's argument that the VE should have used a Wisconsin rather than a Minnesota database to evaluate the number of available jobs, but Government does not renew that argument on appeal.) Finally, the ALJ asked the VE whether his testimony was consistent with the Dictionary of Occupational Titles ("DOT"), and the VE answered "yes."

Government's counsel then cross-examined the VE as follows:

Counsel: And then if you assume a person couldn't do, couldn't do close up work because of finger problems, hand problems, that sort of thing, would that change your opinion on this?

VE: Yes.

Counsel: How would it ...

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