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Ketelboeter v. Astrue

December 15, 2008

BRIAN L. KETELBOETER, PLAINTIFF-APPELLANT,
v.
MICHAEL J. ASTRUE, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 07-C-082-S-John C. Shabaz, Judge.

The opinion of the court was delivered by: Coffey, Circuit Judge

ARGUED SEPTEMBER 10, 2008

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

Brian Ketelboeter applied for disability insurance benefits, claiming that he was unable to work due to chronic pain. After conducting a hearing the ALJ denied benefits based on his finding that, although Ketelboeter could not return to his past work, he could perform a significant number of other jobs available. The district court found that substantial evidence supported the ALJ's conclusion. On appeal Ketelboeter argues that the ALJ improperly discounted the opinion of his treating physician and failed to consider his mental health disabilities. Because the ALJ's decision is supported by substantial evidence, we affirm.

Background

Ketelboeter, who is 53 years old, began working as a truck driver in 1988, and he was injured and claimed that in 1995, a pulley struck his rib cage while he was securing lumber onto the trailer of a truck. His family physician, Dr. David F. Cook, diagnosed him with a sprained rib and recommended that he wear a rib belt for support and undergo physical therapy treatments, which he failed to pursue. Ketelboeter also received chiropractic treatment in 1996 and 1997, for neck, chest, and back pain. In early 1997, Ketelboeter again complained of rib pain with soreness in his neck and back. A bone scan, chest x-ray, and blood tests revealed no problems, even though an emergency-room doctor diagnosed him with a chest-wall sprain with spasms. Later on, Ketelboeter fell and bruised his shoulder. Thereafter he received treatment for his pain frequently from Dr. Richard J. Horecki, while undergoing treatment for his chest and rib pain throughout that year. Dr. Horecki prescribed steroid anti-inflammatory drugs and in January 1998, diagnosed that he was suffering from costochondritis, an inflamation of cartilage "where the rib and breast-bone [sternum] are joined." (Mayo Clinic, http:// www.mayoclinic.com/health/costochondritis/DS00626 (visited Aug. 18, 2008)).

In early 1998, Ketelboeter saw Dr. Tuenis D. Zondag, who recommended that he receive injections and physical therapy to treat his pain. Ketelboeter attended physical-therapy sessions, but refused to accept the prescribed injections. Instead he was attempting to manage his pain with walking and aerobic exercise-a program that previously had provided him with some relief. Throughout 1998 and 1999, Drs. Horecki, Zondag, and Cook also treated Ketelboeter's chronic pain with ibuprofen and Tylenol 3.

In 2000, an MRI showed a flattening and deformity of his spinal chord accompanied with a stenosis, disk protrusion, degenerative changes, and osephyte formation. After complaining that his chest wall was giving him pain and discomfort, Dr. Zontag prescribed Ultram (a pain-killer) and Volatren (an anti-inflammatory medication), though Ketelboeter complained that the medications were less than effective in relieving his pain. In May 2001, Dr. Zondag observed that Ketelboeter had reduced tolerance for sitting and standing and he would need accommodations to alternate between those positions.

In February 2002, Ketelboeter saw another doctor, Dr. Erik Dickson, who noted that physical therapy together with Flexeril, a muscle relaxant, had relieved his pain. Dr. Dickson continued to treat Ketelboeter with ibuprofen and Flexeril and did not see him again until Ketelboeter reinjured himself one year later. Dr. Dickson once again prescribed Flexeril and Ketelboeter reported some improvement.

Although Ketelboeter worked for eight years after his injury, in June 2003, he stopped working because, he says, the pain in his rib cage was radiating into his sternum, shoulders, and arms, preventing him from doing his job. Dr. Dickson examined Ketelboeter again in September 2003. He opined that he did not know what was wrong with Ketelboeter, but that his alleged "pain [was] out of proportion with his physical findings." Ketelboeter's x-rays and bone scans were negative, and a rheumatologist found no evidence of rheumatic disease despite a small positive rheumatoid factor in his blood. The rheumatologist diagnosed Ketelboeter as having rib tip syndrome (rib pain), xiphodynia (sternum pain), and history consistent with rotator-cuff disease, and prescribed Vioxx, which Ketelboeter did not take. Ketelboeter also declined more aggressive recommended remedies like injections or surgery.

In September 2003, Ketelboeter applied for Disability Insurance Benefits, claiming that he had been disabled since July 25, 2003. A non-treating state-agency physician reviewed Ketelboeter's application and medical record and concluded that Ketelboeter could lift up to ten pounds frequently and twenty pounds on occasion, and could sit or stand up to six hours a day. Two months later Ketelboeter's treating physician, Dr. Dickson, determined that Ketelboeter could only perform work that allowed him to sit or stand at will and to take 3 to 4 short breaks during the work day. Dr. Dickson concluded that Ketelboeter could only occasionally lift 10 pounds and rarely or never lift more, and could rarely twist, bend, crouch, or climb. Even with those restrictions, Dr. Dickson continued, Ketelboeter would have to miss work about three days per month. Finally, the doctor noted that emotional distress did not augment Ketelboeter's physical limitations.

In April 2005, an ALJ held an administrative hearing dealing with the plaintiff-appellant's claim during which Ketelboeter and a medical expert also testified. Ketelboeter testified that he walked half a mile to a mile four times a week, but that it was hard for him to bend down, sit for long periods of time, drive, or do housework. The medical expert observed that the only objective evidence of Ketelboeter's injury was localized tenderness, and stated that he could do light work, including lifting 20 pounds occasionally and 10 pounds frequently, so long as he had the option to sit or stand. The vocational expert assumed that Ketelboeter could lift 20 pounds occasionally, 10 pounds frequently, could stand or walk or sit for six hours a day but could sit or stand as needed during the course of his work day, and was restricted in the kinds of work he could do involving overhead reaching. Based on these assumptions, the expert opined that Ketelboeter could not perform his past-relevant work, but could perform other jobs, such as bench hand, assembler, or office helper, as those jobs are described in the Dictionary of Occupational Titles (DOT). Finally, the vocational expert testified that if he were to assume that Ketelboeter had the limitations that Dr. Dickson identified, no jobs would be available to him.

The ALJ denied Ketelboeter's claim for disability benefits, and the Appeals Council upheld the ALJ's decision. Ketelboeter attempted to respond with additional sub-missions of medical evidence, including Dr. Dickson's additional statement recommending that Ketelboeter would have to take five to six unscheduled breaks during the work day rather than three to four and he would probably miss more than four days of work per month. After reviewing the new evidence, the ALJ granted Ketelboeter another hearing.

At the second hearing, Ketelboeter testified that his pain had increased since the first hearing and he could now only walk around the yard. Ketelboeter stated that he had to change positions frequently and spent most of his time sleeping, though he sometimes observed and advised his family when they did chores on their farm, including milking cows and maintaining the tractor. He also testified that Dr. Dickson had prescribed him an antidepressant, but did not refer him to a mental-health professional. A state-agency medical expert, Dr. Andrew Steiner, testified that he observed little objective evidence of Ketelboeter's pain, and, relying on that objective evidence and discounting Ketelboeter's inconsistent self-reports of pain and discomfort, concluded that Ketelboeter could do light lifting and occasional overhead work. Moreover, continued the doctor, no medical evidence suggested that Ketelboeter had to change positions frequently. Despite the new evidence, the ALJ asked the vocational expert to assume that Ketelboeter had the same limitations that he asked the vocational expert to assume in the first hearing. The vocational expert this time ...


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