April 24, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 16-CV-1361 - William C. Griesbach,
Kanne, Hamilton, and St. Eve, Circuit Judges.
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.
appeal, Jozefyk addresses only his mental conditions, so we
limit our analysis accordingly.
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.
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.
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.
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
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.
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
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 ...