02-2312 Johansen v. Barnhart

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“Johansen challenges the ALJ’s finding that he retained the mental RFC to perform repetitive, low-stress work. The problem with the ALJ’s decision, according to Johansen, is that it does not mention VE Goldsmith’s testimony that an individual could not perform sustained employment if he was unable to maintain a regular schedule or attendance twenty-five to fifty percent of the time. As we mentioned above, Goldsmith’s testimony was based on Dr. Berney’s finding that Johansen could not perform activities within a schedule, maintain regular attendance, and sustain an ordinary routine without special supervision between twenty-five and fifty percent of the time. The ALJ’s decision accepts Dr. Berney’s testimony as true but does not make even a passing reference to Goldsmith’s opinion based on that testimony.

“Despite this omission we conclude that there was still substantial evidence supporting the ALJ’s decision. In formulating the hypothetical to present to Goldsmith, the ALJ relied on consultative physician Matkom’s opinion that, because Johansen was “not significantly limited” in seventeen of twenty work-related areas of mental functioning, he retained the mental RFC to perform repetitive, low-stress work. The ALJ then credited Goldsmith’s testimony that a hypothetical individual with this RFC would be able to perform a significant number of jobs in the regional economy.

“The ALJ did not err in relying on Dr. Matkom’s assessment of Johansen’s mental RFC. Both Dr. Matkom and Dr. Berney found that Johansen was essentially “moderately limited” in his ability to maintain a regular schedule and attendance, and in his ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms. Dr. Matkom, however, went further and translated those findings into a specific RFC assessment, concluding that Johansen could still perform low-stress, repetitive work. Dr. Berney, on the other hand, did not make an RFC assessment (nor did state-agency physician Ingison). Thus, because Dr. Matkom was the only medical expert who made an RFC determination, the ALJ reasonably relied upon his opinion in formulating the hypothetical to present to Goldsmith. See Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987) (‘All that is required is that the hypothetical question [to the VE] be supported by the medical evidence in the record.’). Though Goldsmith may have disagreed with the ALJ’s RFC assessment, such determinations are reserved exclusively to the Commissioner, 20 C.F.R. º 404.1527(e), and there was substantial evidence to support the specific determination made by the ALJ in this case.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Flaum, J.