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Jozefyk v. Berryhill

United States Court of Appeals, Seventh Circuit

May 8, 2019

Christopher Jozefyk, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued April 24, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 16-CV-1361 - William C. Griesbach, Chief Judge.

          Before Kanne, Hamilton, and St. Eve, Circuit Judges.

          Per CURIAM

         Christopher Jozefyk applied for Disability Insurance Benefits and Supplemental Security Income, claiming disability based on several physical and mental conditions, including degenerative changes in his cervical spine, lumbar strain, obesity, affective disorder, and anxiety disorder. An Administrative Law Judge denied benefits, and the district court concluded that substantial evidence supported the ALJ's decision. Jozefyk raises two arguments on appeal: (1) the ALJ did not establish a valid waiver of attorney representation before allowing Jozefyk to proceed pro se at the hearing, and (2) the residual functional capacity finding did not account for Jozefyk's moderate limitations in concentration, persistence, or pace. Because the record does not substantiate either argument, we affirm.

         I. Background

         On appeal, Jozefyk addresses only his mental conditions, so we limit our analysis accordingly.

         Jozefyk was diagnosed with depression in 2001, but he did not receive consistent treatment for his symptoms until more than a decade later. In May 2013, psychologist William Camp diagnosed Jozefyk with generalized anxiety disorder, depressive disorder, and avoidant personality disorder. Jozefyk told Dr. Camp that he "froze up" in stressful situations and had difficulty being around groups of people. He also reported short-term memory problems but performed well on Dr. Camp's memory assessments. Another doctor, neuropsychologist William Hitch, also evaluated Jozefyk and found that he had normal memory function and only mild concentration impairments.

         Jozefyk's medical records were also reviewed by two agency psychologists: Edmund Musholt (in June 2013) and Kenneth Clark (in October 2013). Dr. Musholt concluded that Jozefyk had severe impairments of affective and anxiety disorders, causing moderate limitations in concentration, persistence, or pace. Although Jozefyk had reported memory difficulties, Dr. Musholt found no indication of cognitive or memory problems. But Dr. Musholt opined that, because of Jozefyk's difficulties in social settings, he was moderately limited in his ability to work in coordination with or in proximity to others. Dr. Clark reviewed an updated medical record and made the same findings as Dr. Musholt.

         In November 2014, Jozefyk sought treatment from psychiatrist Dr. Guy Powers. Dr. Powers observed that Jozefyk had moderate functional difficulties but was otherwise alert and oriented. He diagnosed Jozefyk with depressive disorder and recommended medication and therapy.

         Before his administrative hearing, Jozefyk was sent several written communications from the Social Security Administration, including a publication entitled "Your Right to Representation," explaining his right to an attorney, organizations that could help him find an attorney, the fee structure, and the benefits of representation in disability proceedings. Also, in his request for a hearing, Jozefyk certified: "I do not have a representative. I understand that I have a right to be represented and that if I need representation, the Social Security office or hearing office can give me a list of legal referral and service organizations to assist me in locating a representative."

         In March 2015, Jozefyk appeared for his ALJ hearing without representation. The ALJ noted on the record that Jozefyk did not have an attorney and asked him if he was aware of his right to counsel. Jozefyk responded "yes" and stated that, because none of the lawyers that he had contacted would take his case, he decided to proceed by himself. The ALJ offered to continue the hearing to give Jozefyk more time to find an attorney, but Jozefyk again stated that he wanted to proceed.

         Jozefyk testified that he previously worked as a security guard and a gas station cashier, but he was no longer looking for work because of his "really bad anxiety and depression." Jozefyk explained that he has difficulty getting along with others because of his mental impairments. Jozefyk's daily activities include spending time on the computer and watching television. He also occasionally helps his mother with housework.

         A vocational expert also testified at the hearing. The ALJ asked the expert to consider a hypothetical person with Jozefyk's age, education, work experience, and the following limitations: simple, routine, repetitive tasks requiring no more than occasional contact with supervisors and coworkers; no contact with the public; and an assigned work area at least ten to fifteen feet away from coworkers. The expert opined that this ...

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